Summary

An application for an interim injunction preventing a lessor from blocking vehicular access to the front of office premises was refused where there were significant safety concerns for pedestrians, and an alternative means of vehicular access to the premises, although less visually attractive, was available.

Facts

The claimant lessee (T) applied for an interim injunction to prevent the defendant lessor (O) from blocking an access road to a leased office building to vehicular traffic. T had leased office space in a building within a high quality, prestigious corporate estate since 2004. T had always used a centrally located access road to access its premises. Several times a week important business executives in limousines and taxis would use that access road. The smart look of the premises, the landscaping and the central access road was important for T's image. Following the raising of health and safety concerns about the central road's narrowness, exacerbated by increased pedestrian use, O decided, without consulting T, to pedestrianise the road. Alternative access to T's premises was available via a perimeter road. T alleged the perimeter road was an eyesore, passing the rear of the estate's buildings, industrial waste and service areas, and not in keeping with the purpose behind its use of the premises. O had performed some preparatory work to block the central access road. Importantly, the lease contained a reservation in favour of O to build upon, alter or vary any other parts of the estate provided that "reasonable means of access to the premises" was available at all times. T planned to argue at trial that O's proposed actions were a derogation from an expressly granted right of access and egress under its lease and that there had been a breach of the covenant for quiet enjoyment and a substantial interference with T's right to use the road. In the instant proceedings, T submitted that there was a serious question to be tried in determining the meaning of "reasonable" under the lease; it was unfair for its rights to be overridden due to overblown health and safety concerns, and that the balance of convenience favoured the maintenance of the status quo, given that traffic was already restricted to taxis and limousines. O submitted that, given that the central road's narrowness often meant that vehicles had to reverse to exit, and the danger inherent in the noise-cancelling qualities of the fountain at its centre, an accident involving pedestrians was imminent.

Held

On an application for an interim injunction, the relevant considerations were whether there was a serious question to be tried; the adequacy of damages and where the balance of convenience lay, American Cyanamid Co v Ethicon Ltd (No1) (1975) AC 396 HL followed. There was a serious question to be tried. The parties' contested evidence as to what constituted a "reasonable means of access" came down to whether the quality of the means of access was encompassed by "reasonable". The adequacy or otherwise of the perimeter road as a reasonable means of access was to be dealt with on the evidence at a future trial. Furthermore, calculation of T's damages was difficult where its use of the central access road was hard to quantify, along with the cost of the use of alternative meeting rooms, and the effect of the use of the perimeter road on executives was unknown. However, the court accepted the legitimacy and paramountcy of O's health and safety concerns; the evidence that there was a significant risk of an accident causing injury to pedestrians had not been exaggerated. Accordingly, the balance of convenience fell on the side of O.

Application refused