CENTURY PROJECTS Ltd v ALMACANTAR (CENTRE POINT) Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Nugee |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] EWHC 394 (Ch) |
| Docket Number | Claim No. HC14E00005 |
| Court | Chancery Division |
| Date | 13 February 2014 |
[2014] EWHC 394 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
Mr. Justice Nugee
Claim No. HC14E00005
Mr. Jonathan Gaunt Q.C. and Mr. Jonathan Davey (instructed by Enyo Law LLP) appeared on behalf of the Claimant/Applicant.
Mr. Jonathan Seitler Q.C. and Mr. Jonathan Chew (instructed by Berwin Leighton Paisner) appeared on behalf of the Defendants/Respondents.
JUDGMENT (As approved)
In this application the claimant, Century Projects Ltd., the lessee under a lease of premises at the top of Centre Point Tower, seeks an interlocutory injunction restraining the defendants (three companies in the Almacantar Group between whom it is not necessary to distinguish for the purposes of this application), its landlords and owners of the tower, from carrying out external works to the concrete façade of the tower using scaffolding, on the ground that this will constitute a breach of the landlords' covenant for quiet enjoyment and a breach of their obligation not to derogate from their grant.
The Centre Point complex is a well-known development on New Oxford Street in Central London, situated near the crossroads of Oxford Street and New Oxford Street with Tottenham Court Road and the Charing Cross Road. The complex was designed by Richard Seifert and the original structural engineers were Pell Frischmann. The most prominent building in the complex is Centre Point Tower, an iconic building which was completed in 1966 and given a Grade II listing in 1995, with the Royal Fine Art Commission praising the building as having an "elegance worthy of a Wren steeple". It has a distinctive shape with curved eastern and western sides and a honeycomb-like concrete façade made up of innovative H-shaped pre-cast concrete units. This "exoskeletal cladding", as it has been referred to, is load-bearing although I was told only secondarily to other structural elements. The tower is some 117m (385ft) high and accommodates thirty-three floors of commercial space.
The claimant's lease ("the Lease") is dated 26 th March, 2008. The then landlord, Targetfollow (Centre Point) Ltd., granted the Lease to the claimant for a term of thirty-six years from that date. The property demised was the whole of Floors 31 and 32 and a viewing gallery around the perimeter of Floor 33. This appears to be the highest lettable space in the Tower although there is a Floor 34 above. The roof is at Floor 35 level. The Permitted Use under the Lease is as follows: "(i) in respect of the 31 st and 32 nd floors a high class restaurant bar and/or private members' club; and (ii) in respect of the Viewing Gallery, the Delivery Spaces and the Prep Areas for such reasonable proper purposes as are ancillary to such use of the 31 st and 32 nd floors." It is not necessary to deal with the Delivery Spaces and Prep area: the claimant has a supplemental lease of other parts of the Tower which it is not necessary to refer to any further.
The demised premises were set out in Schedule 1 to the Lease where there was an express exclusion of those parts of the Complex specified in para. 1 of Part 1 of Schedule 2, the Complex being defined as the landlord's development known as Centre Point, situated at 103 New Oxford Street, etc. Paragraph 1 of Part 1 of Schedule 2 refers, among other things, to the structural parts of the Complex and, in particular, to the main walls. It is therefore common ground that the concretefaçade is not part of the property demised and has been retained in the ownership of the landlord. Clause 5.1 of the Lease contains a landlord's covenant for quiet enjoyment in a fairly standard form which reads as follows:
"The Landlord hereby covenants with the Tenant as follows
5.1 Quiet Enjoyment.
That the Tenant paying the rents hereby reserved and performing and observing the covenants conditions and agreements on the Tenant's part herein contained shall and may peaceably and quietly hold and enjoy the Property during the Term without any interruption from or by the Landlord or any person lawfully claiming under or in trust for the Landlord but without prejudice to the rights of entry for the Landlord and those authorised by it specified in clause 4.7.2".
It is not necessary to refer to Clause 4.7.2. Clause 5.2 contains a landlord's covenant to repair as follows:
"5.2 Repair, etc.
Except in circumstances where the Landlord is fettered or prevented from so doing by circumstances beyond its control to use its reasonable endeavours
5.2.1 to keep or cause to be kept the structure and external parts of the Complex and the Common Parts in a good and tenantable state of repair and maintenance …"
There are then various other provisions.
Two other provisions of the Lease were relied on by Mr. Jonathan Seitler QC, who appeared for the defendants, namely Clause 3.1 which contains a declaration in these terms:
"It is hereby declared
3.1 that the Landlord shall have power at all times without obtaining any consent from or making any compensation to the Tenant to deal as it may think fit with any land or buildings adjoining opposite or near to the Property and to erect or suffer to be erected or made within the curtilage of the Complex and on such adjoining opposite or neighbouring land any building or works whatsoever and to make alterations and additions to any buildings whether such buildings alterations or additions shall or shall not affect or diminish the light or air which may now or at any time or timesduring the Term be enjoyed by the Tenant or other tenants or occupiers of the Complex or any part thereof".
The second provision on which he relies is one of the exceptions and reservations found in para. 4 of Part 3 of Schedule 1 in these terms:
"Full rights to use and build upon or alter any property now or hereafter belonging to the Landlord or the Landlord's tenants (and not hereby demised) at any time for any purpose in any manner whatsoever notwithstanding that the access of light and air to the Property may be obstructed or interfered with and notwithstanding that the carrying out of such works in a reasonable and proper manner may cause the temporary obstruction annoyance or inconvenience to the Tenant in its occupation or use of the Property"
As appears from the Permitted Use, the purpose of the demise was to enable the premises to be used as a restaurant and/or club. Mr. Condou, the Executive Director of the claimant, explains in his witness statement that the claimant currently operates a business known as Paramount at the Summit of Centre Point, which consists of a bar and restaurant, and an events space. He was first invited to view the space in 2004 and was so taken by the stunning panorama of London from it that his decision to take the space was instantaneous. He caused the claimant to invest heavily in the premises, spending about £5 million on refurbishment. The claimant has operated there since 2008. He describes the position of Paramount at the top of Centre Point, with its spectacular views across the West End and City of London as a recognised and unique selling point. I was shown photographs of the views and they are certainly impressive.
The defendants, Almacantar, acquired Centre Point from Targetfollow's receivers in April 2011. Before doing so they commissioned a condition survey from Pell Frischmann who, as I have said, were the civil engineers responsible for the original construction of the complex in the 1960s. Pell Frischmann reported that the structure was fundamentally sound, but the façade required attention. A further report from Sandbeg (employed by Pell Frischmann) concluded that the future integrity of the concrete structure should continue provided it was adequately maintained. The defendants had these reports by February 2011 and so acquired Centre Point in the knowledge that the structure was fundamentally sound, but required some work.
The defendants' plan on acquisition was to carry out the necessary repairs and refurbish the building. They hoped to be able to convert the Tower to residential use and, in 2012, applied for planning permission to change it to residential use. However, although the building is not fully occupied, there are a number of occupiers in place, including of course the claimant, whose lease does not expirefor another thirty years or so, and the defendants therefore recognised that they might well have to settle for refurbishment of the Tower for its existing use as offices.
There have been a number of disputes between the claimant and the defendants, some of which are the subject of separate proceedings. However, I am not concerned with those. It is apparent that there is a deep lack of trust on both sides. As Mr. Jonathan Gaunt QC, who appeared for the claimant, aptly put it, "One side (the claimant) regards the other (the defendants) as trying to force it out, while the defendants regard the claimant as trying to extort money from them". Although some of these matters are touched on in the evidence, sensibly neither counsel sought to rely on them before me and I say no more about them.
Reverting to the defendants' plans, after acquisition the defendant commissioned Pell Frischmann to undertake a full external survey. Pell Frischmann issued a series of reports. This exercise was completed in July 2013 when Pell Frischmann issued their final report covering Floors 33 to 35. In the meantime, the defendants had instructed their...
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