Barrie House Freehold Ltd and Others v Merie Binmahfouz Company (Uk) Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ROTH |
| Judgment Date | 25 January 2012 |
| Neutral Citation | [2012] EWHC 353 (Ch) |
| Docket Number | Case No: HC11C04487 |
| Court | Chancery Division |
| Date | 25 January 2012 |
[2012] EWHC 353 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Roth
Case No: HC11C04487
MR HEATHER (instructed by Messrs Charles Russell) appeared on behalf of the Claimant
MR RAINEY and MS E GIBBONS (instructed by Messrs Seddons) appeared on behalf of the Defendant
Approved Judgment
The defendant to this action is the freehold owner of a block of flats known as Barrie House at 93-94 Lancaster Gate, London W2 3QJ ("the property"). The 2nd to 28th claimants ("the lessee claimants") are the tenants of 22 of those flats.
On 11 January 2011, the lessee claimants, along with some other tenants who are not claimants in this action, served notice on the defendant under the Leasehold Reform Housing and Urban Development Act 1993 ("the 1993 Act") seeking to exercise the right to collect enfranchisement of the freehold of the building referred to as "the premises". All statutory references in this judgment are to the 1993 Act, except as otherwise stated.
The first claimant is the company nominated by those participating tenants as the nominee purchaser of the freehold. In their statutory notice, the lessee claimants and other participating tenants seeking to enfranchise claim the right to acquire also the freehold to the gardens and driveway at the front of the Property, pursuant to section 1(2)(a) and 3(b). That was referred to in the notice as the "additional freehold property" and I shall use that term for convenience in this judgment. They asserted that the reasonable price for the additional freehold property was £500.
By counter-notice served on 10 March 2011, the defendant accepted that the participating tenants were entitled to have the freehold of the building acquired on their behalf, but did not accept that they were entitled also to acquire the additional freehold property. However, if the additional freehold property did fall within the right to enfranchisement, the defendant asserted that the premium in that regard should be £1,000. The defendant also asserted a statutory claim to various leasebacks under the 1993 Act, including leasebacks to two units in the basement: one, which is or was a porter's flat called Flat 39; and the other, an office unit "together with associated lightwell". There is no such claim in the counter-notice to a lightwell in association with Flat 39, but I am told that in fact such a right is being claimed in respect of both basement units and the case before me proceeded on that assumption.
As at the date of the counter-notice and still today, no such lightwells exist. However, the defendant is proposing to build two lightwells at the front of the building to give light to these two basement units. The claimants seek an injunction to prevent that construction and contend that the actual and intended acts of the defendant contravene their rights under their leases or, alternatively, constitute a breach of statutory duty under the 1993 Act.
The proceedings
The defendant obtained planning permission to construct two lightwells by decision of the planning authority of 10 November 2011. The claimants learnt of this on 8 December.
The hearing of disputed issues on the leasehold enfranchisement claim is due to commence before the Leasehold Valuation Tribunal ("LVT") on 6 February 2012. The defendant has made no secret of the fact that it seeks to commence and progress so far as possible the construction of the lightwells before the hearing in the LVT commences, and for their part the claimants are concerned at the effect on their position as regards enfranchisement if that should take place. Accordingly, they issued proceedings on 20 December 2011. The claim form stated that this was a non-monetary claim seeking injunctive relief only, but in the attached Particulars of Claim the relief sought includes a claim for damages.
The injunctive relief sought was a negative injunction to prevent further works to the additional freehold property and a mandatory injunction requiring the defendant to reinstate the front garden to its former state - that being a reference to an excavation that had taken place, as I shall explain. The claimants issued an application for interim relief in terms of the negative injunction.
On 16 January, that interim application came before me with a time estimate of half a day. On consideration of the papers, it seemed to me that a full trial of the action would take no more than a day and that this was not a case where disclosure was necessary. Since both sides were contending that their position would be irretrievably affected once the LVT has given its decision, rather than consider the matter on an interim basis it seemed more sensible and satisfactory to hold a trial as that could be done the following week.
The parties agreed and have helpfully cooperated in ensuring that this could occur, with the defendant giving an undertaking to cover the position in the meantime. The two witness statements filed on the interim applications have stood as each side's evidence-in-chief, although the claimants were given the opportunity to serve further evidence before trial if they so wished.
This course has also enabled me to have a view of the property, which I conducted accompanied by the parties' representatives on the morning of the trial and which has proved very helpful.
The property
It is necessary to describe the property and in particular the additional freehold property in some detail. The building itself was constructed around the mid 20th century. It is across the road from Kensington Gardens, almost opposite one of the gates into that beautiful London park. It comprises some 37 flats, plus the two units in the basement to which I have referred. Several of the flats above the ground floor have balconies overlooking the front of the building.
The entrance to the building is recessed back from the roadway and is accessed by an almost semi-circular driveway. On either side of the driveway is a raised ornamental garden, predominantly comprising a small area of lawn. At the sides, abutting the ground floor of the building, there is a low level plinth, some 28 centimetres high, which runs the length of each garden. Although the two sides are symmetrical and equally wide, curiously the two plinths are not of the same depth. The plinth on the left-hand side, as one faces the entrance, is 103 centimetres deep, whereas the plinth on the right-hand side is only 46 centimetres deep.
Beyond the plinths, the width (or depth) of each garden is a little over two metres at its broadest point. The right-hand garden is deeper to the extent that the plinth is narrower. The two gardens are not rectangular, as each is bounded on one side by the curb of the driveway. Most of the gardens are grassed over, but each has a border of ornamental shrubs and plants on the three sides away from the plinth. The gardens are bounded on those three sides by a very low concrete wall, slightly higher than the plinth, with a low horizontal railing on top. There is no gate into either garden, nor is there direct means of access to them from the building. However, it would be relatively easy for anyone other than a small child to climb over the wall and railing into the garden. A number of pots and planters planted with flowers have been placed along the plinths for decorative purposes.
The leases
It is not in dispute that the terms of the leases under which the lessee claimants hold their flats are in common form. In some cases they hold original leases from the 1960s and in other cases a later lease has been entered into that expressly incorporates the terms of an earlier lease. Nothing turns on this and there was a sample lease in evidence on which the arguments were based ("the lease").
The lease contains a covenant of quiet enjoyment in favour of the tenant in the usual form. Along with the demise of the particular flat, there is a demise to the tenant of "easements, rights and privileges" in the first schedule while reserving to the lessor the rights in the second schedule.
The first schedule states at paragraph 1 the easements, rights and privileges included in the demise:
"…the full right and liberty for the lessee and all persons authorised by him (in common with all other persons entitled to the like right) at all times by day or by night to go, pass and repass over and along the main entrance of the said building and the common passages, landings and staircases thereof and to use the passenger lifts therein and the gardens, forecourts, roadways, pathways and rides in the curtilage thereof, provided nevertheless the lessee shall not authorise the use of said lift or gardens by any tradesmen or the user of the said lift for carrying of goods." [quotation unchecked]
Paragraph 2 of the second schedule reserved to the lessor:
"…the right at any time hereafter to rebuild, alter or use any of the adjoining or neighbouring buildings, according to such plans… and in such manner as shall be approved by the lessor or superior lessor, notwithstanding that the access of light or air to or any other easement for the time being appertaining to or adjoined with the flat or any part thereof may be instructed or interfered with…" [quotation unchecked]
The fifth schedule sets out restrictions and regulations imposed on the tenant by reference to clause 2(5). Paragraph 10 of the fifth schedule states, in so...
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