Summary

Whilst the court was content to declare that proposed works did not constitute "structural alterations" to the subject property, it declined to declare that the same works did not constitute alterations to its external appearance: this could only be judged once the works were completed.

Facts

Claimant's action for a declaration to the effect that the proposed installation of new windows and external doors in his leasehold penthouse apartment ('the property') would not be in breach of a covenant in the lease not to make any structural alteration to, nor to alter the external appearance of, the property. The property formed part of a development of nine luxury apartments, which the judge found possessed an integrity of design and style. The need for the installation of the replacement windows and doors arose out of defects with those originally installed. It was conceded that the defects could only be remedied by total replacement. The issue between the parties was as to whether the replacements which the claimant wished to install - fabricated from aluminium - were materially different, structurally or in appearance, from the existing originals - fabricated from rolled steel - so as to amount to a breach of covenant.

Held

(1) As a matter of construction of definitions contained in the lease, there was nothing which required "structural alterations" to extend to alterations to windows and external doors. (2) However, if the court was wrong on the question of construction as to the term "structural", it considered whether particular differences between steel and aluminium windows and doors amounted to "structural alterations" in fact. On the evidence, those differences were sufficiently significant to amount to alterations, so as to be in breach of covenant: this was not a case of a de minimis change. (3) In that event, the claimant could not rely upon his repairing obligation to excuse or override a breach of covenant in relation to the external appearance of the property. (4) At the present time it was not possible to state that the proposed replacements would, or would not, effect an alteration to the external appearance of the property. An alteration was only relevant if it could be viewed from a vantage point outside the property itself. This required an assessment of the impact of any such alteration on the visual appearance of the development as a whole. Save in the case of obviously de minimis changes, such an assessment could not sensibly be carried out until the proposed replacements had actually been installed. In those circumstances the court declined to make any declaration in relation to the external appearance of the property.

Declaration accordingly.