Brenda Anna Gorst v Anabel Mary Louise Knight
| Jurisdiction | England & Wales |
| Judge | Paul Matthews,HHJ |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWHC 613 (Ch) |
| Date | 28 March 2018 |
| Court | Chancery Division |
| Docket Number | Case No: CH-2017-000191 |
[2018] EWHC 613 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
On appeal from Master Price
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: CH-2017-000191
David Holland QC (instructed by Summerfield Browne Solicitors) for the Appellants
Alan Steinfeld QC and Owen Curry (instructed by Seddons Solicitors) for the Respondent
Hearing dates: 22 February 2018
Introduction
This is my judgment on an appeal brought by Brenda Gorst and her son Charles against the order of Master Price dated 28 June 2017, on a claim made by Anabel Knight against them under CPR Part 8. The claim was issued on 10 March 2017. It sought a declaration that the long lease of the maisonette known as Flat 1, 88 Tunis Road, London W12 7EY, of which Brenda and Charles Gorst are the current proprietors, does not extend to the subsoil under the terraced house known as 88 Tunis Road. Master Price by his order made that declaration.
Master Price heard the claim on 13 April 2017, and handed down his reserved, written judgment on 28 June 2017 (the draft judgment having been circulated about a month earlier). He refused permission to appeal against his decision. The appellants' notice was filed on 25 July 2017. Morgan J granted permission to appeal on 24 October 2017. The respondents filed a notice seeking to uphold the master's decision on additional grounds on 6 November 2017. The appeal was heard by me on 22 February 2018, when David Holland QC appeared for the appellants, and Alan Steinfeld QC and Owen Curry appeared for the respondents. I am very grateful for their helpful and concise arguments, both written and oral.
By virtue of CPR rule 52.21 (1), an appeal is limited to a review of the decision of the court below, unless the court considers that in the circumstances of a particular appeal it would be in the interests of justice to rehear the case: Audergon v La Baguette Ltd [2002] EWCA Civ 10, [83]. The important difference between a review and a rehearing is dealt with in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577, CA, and in EI Du Pont Nemours and Co v ST Du Pont [2006] 1 WLR 2793, per May LJ. In the present case, this was a review rather than a rehearing, but the parties were able to make all the submissions on the facts and the law that they wished.
Rule 52.21 (3) provides that the appeal court will allow the appeal where the decision was (a) wrong, or (b) unjust, because of serious procedural or other irregularity in the proceedings below. Here ‘wrong’ means wrong in law, wrong in fact, or wrong in the exercise of discretion. But the test is different for each of these. Amongst other things, the court must distinguish between a finding of primary fact on oral evidence where credibility is in issue, the evaluation of facts by a judge, and the exercise of discretion by the judge.
Background
The house at 88 Tunis Road consists of ground, first and second floors, a rear extension (on all three floors) and a patio at ground floor level. Additionally there is a cellar beneath the ground floor, approximately five feet high, with no natural light and a sandy, compacted earth floor. It appears from the documents placed before the court that the house was divided into two separate residential units, each called “maisonette”, in 1991–92, and leases were granted of those two units at the end of 1992. The lower unit was called Flat 1, and the upper unit was called Flat 2. The latter occupies the first and second floors of the house.
The original lease of Flat 1 is dated 17 December 1992. Broadly speaking, that lease demised the ground floor (excepting the entrance hallway, and a paved area outside the front door, fronting the street) and the cellar beneath the ground floor, together with the patio at the back, for 99 years, at an annual ground rent, rising throughout the term from £50 to £400. However, a “lease extension” under the Leasehold Reform, Housing and Urban Development Act 1993 was later obtained, and took effect from 12 May 2016. The result was that a new lease was granted, on the same terms as the old, but for a term now of some 189 years. The only parts of the freehold of the house at ground level not subject to a long lease are the small paved area outside the front door, facing the street, and the entrance hall. The original freehold reversion, with its rising ground rent and its forfeiture clause, would certainly have been worth something at the outset of the 99 year term.
The appellants had the idea of making the cellar into a habitable room or rooms. Since it is only 5 feet high, it needs more height. But this could only be obtained by digging down into the subsoil, about another 4 feet. The appellant applied for and obtained planning permission from the local planning authority. However, the respondent (who is not only the proprietor of the lease of flat 2, but also the owner of the freehold interest) opposes this plan.
The question therefore for the court is whether the lease of flat 1 demises the subsoil to the appellants. If it does not, then, without the consent of the owner of the subsoil, carrying out the plan would amount to a trespass and therefore could not go ahead. If on the other hand the lease of flat 1 does demise the subsoil to the appellants, then, subject to landlord's consent under the terms of the lease, the plan can be carried out. It is common ground that the requirement for the landlord's consent is subject to section 19 of the Landlord and Tenant Act 1927, and therefore consent cannot be unreasonably withheld. In fact, the respondent has indicated by a letter from her solicitors dated 7 March 2017 that, if the demise is held to include the subsoil, the respondent will in principle give consent, subject to her properly incurred legal or other expenses being met, in accordance with s 19 of the 1927 Act.
The leases
I turn now to consider the provisions of the leases of flat 1. First of all, the current lease is that granted on 12 May 2016 by the respondent as freeholder to the appellants as tenants pursuant to the right to a lease extension under the Leasehold Reform, Housing and Urban Development Act 1993. As I have already said, that has a term of about 189 years to run. The relevant provisions are as follows:
“1. In consideration of the sum of £17,500 … paid to the Landlord on or before the execution hereof … and the rents and covenants hereinafter reserved and contained and on the part of the Tenant to be paid and observed and performed the Landlord HEREBY DEMISES unto the Tenant with full title guarantee ALL THAT the property devised by the Existing Lease (“the Premises”) TOGETHER WITH the rights set out in the Existing Lease in common with the Landlord and all those authorised by the Landlord AND EXCEPT AND RESERVING in favour of the Landlord and all persons authorised by the Landlord the rights and easements set out in the Existing Lease and the right to apply to the Court for an order entitling the Landlord to resume possession of the Property pursuant to section 61 of the Act as provided in clause 6(c) of this Lease TO HOLD the Property to the Tenant for the term of 189 years from the 24 th June 1992 YIELDING AND PAYING the following rents:
FIRSTLY from the date hereof the yearly son of one peppercorn (if demanded) and SECONDLY the other or further or additional rents including service charge and other sums reserved by the Existing Lease as though repeated in this lease mutatis mutandis.
2. Except as to the term of years granted the rent reserved and the express provisions of this Lease this demise is made subject to and on the same covenants on the parts of the Landlord and the Tenant and to the same provisos agreements stipulations and conditions as contained in the Existing Lease as though they had been repeated in this Lease mutatis mutandis save as amended by this Lease and as if the names of the parties to this Lease had been respectively substituted for those in the Existing Lease
3. The Existing Lease shall merge and be extinguished in this Lease”.
That lease replaces the original lease, granted on 17 December 1992 by the original freeholder Catherine Anna Orr Deas to the original tenant Swordheath Properties Ltd, for a term of 99 years. The relevant provisions of this lease are as follows:
“1.0 Demise
1.1 In consideration of the rent and covenants on the part of the Tenant hereinafter contained THE LANDLORD HEREBY DEMISES unto the Tenant ALL THAT Maisonette shown edged red on the plan annexed hereto and known as Flat 1, 88 Tunis Road in the London Borough of Hammersmith & Fulham (“the Maisonette”) being on the ground floor of the building edged blue on the plan (“the Building”) including the external walls coextensive with the Maisonette and including one half part in depth of the joists between the ground and the first floors of the Building and one half width of the walls dividing the Building from the adjacent property and repairable as party walls from the same level as aforesaid and generally including all parts of the building in the case of an upper maisonette above and in the case of a lower maisonette below the line dividing equally the joists between the ground and first floors (all which premises hereinbefore described hereinafter called “the Demised Premises”)
1.1.1 TOGETHER with
(a) the full right and liberty (in common with the Landlord and all others who have or may hereafter have the like right) to the free right of passage and running of water soil gas electricity telephone and other services from and to the Demised Premises through all sewers drains water courses water pipes systems gutters gas pipes...
To continue reading
Request your trial
-
Overriding Interest Summer 2018
...a whole. The “good” reasons were held to be free- standing and there was no connection between them. klgates.com | 27 GORST V KNIGHT [2018] EWHC 613 (CH) Facts - A house had been divided into two maisonettes; one was on the ground floor (“Flat 1”) and the other was on the first and second f......
-
The right to dig down: issues surrounding basement developments
...commented on the difficulties of building upwards into airspace (see update), the recent High Court decision in Gorst v. Knight [2018] EWHC 613 (Ch) highlights some of the legal difficulties of digging down to create additional basement space below an existing In Gorst v Knight the High Cou......
-
The Right To Dig Down: Issues Surrounding Basement Developments
...commented on the difficulties of building upwards into airspace ( see update), the recent High Court decision in Gorst v. Knight [2018] EWHC 613 (Ch) highlights some of the legal difficulties of digging down to create additional basement space below an existing In Gorst v Knight the High Co......
-
High Court Halts Leaseholder's Unfettered Attempt To Convert Their Basement And Curses Soiled Again'!
...by a legal professional. The full judgment of the case, cited as Brenda Anna Gorst & Charles Corst v Anabel Mary Louise Knight (2018 EWHC 613 (Ch)) can be read At Bishop & Sewell, we have nearly than 40 years' experience in conveyancing, with a particular focus on Landlord & Ten......