Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Rimer,Lord Justice Thomas |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Civ 607 |
| Docket Number | Case No: A3/2010/1866 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 2011 |
[2011] EWCA Civ 607
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE WYN WILLIAMS
Royal Courts of Justice
Strand, London, WC2A 2LL
Claim No. HC09C01375
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Lord Justice Thomas
Lord Justice Lloyd
and
Lord Justice Rimer
Case No: A3/2010/1866
Appeal Court Ref: A3/2010/1866
James Hanham (instructed by Clifford Chance LLP) for the Appellant
Jonathan Arkush (instructed by Stockler Brunton) for the Respondent
Hearing date: 2 March 2011
Introduction
Eaton Mansions is a block of flats in Cliveden Place, London SW1. The freehold is owned by the Grosvenor Estate. A headlease is held by the claimant, Eaton Mansions (Westminster) Ltd, which is a management company formed to manage the block on behalf of the owners of long leases of the flats. I will call it EMW. At the time relevant to these proceedings the defendant and appellant, Stinger Compania de Inversion S.A., owned underleases of flats 8 and 10, which were 5 days shorter than EMW's headlease. I will call it Stinger. Stinger sold each of the underleases in March 2010, while the proceedings were under way.
What gave rise to this litigation was some air-conditioning apparatus placed by Stinger on the roof of the block. EMW contends that its presence is a trespass, and brought this action in order to have it removed. Stinger denies trespass, on grounds which I will explain later. EMW applied for judgment under Part 24. The application came before Mr Justice Wyn Williams, who granted the order sought. Stinger appeals, with permission granted, as it happens, by myself, both as to the making of the order on the substantive issue, and against the judge's order that they should pay EMW's costs on the indemnity basis. I will return to the appeal on costs once I have dealt with the main point.
The substantive appeal – the background
In order to explain the issue I must briefly describe the pattern of ownership in relation to the block and the flats. The headlease, dated 23 June 1978, granted the block to EMW for a term of 75.5 years from 24 June 1978. The headlease included various covenants, of which I only need to set out part of one, in clause 2(XIII) — I will refer to it as the Headlease Covenant:
"No alteration shall … be made in the construction height elevation external or internal architectural appearance or internal arrangements of the demised premises or any part thereof or in the chimney stacks or chimney pots thereof …"
The underleases are, so far as relevant, identical. They granted the relevant flat, with various easements, rights and privileges, for a term of 75.5 years less 5 days from 24 June 1978. It is sufficient, as regards the contents of the demise, to say that neither the flat nor the associated rights, as defined, included any right for the leaseholder in respect of the roof of the block, other than that of shelter and protection (Schedule 2 paragraph 2) and, if relevant, the right to connect to wireless or television aerials in the block provided by EMW (if any). The tenant's covenants included a normal obligation not to make alterations or additions without the prior written consent of the lessor and headlessor: clause 3(5).
Nothing in the underleases, therefore, gave the leaseholder any right to place anything on the roof of the block. However, in about 1980 Stinger did place three air-conditioning units on the flat roof of the block, with the agreement of EMW, together with associated condensers, pipe work, wires, ducts and other apparatus on the flank wall of the block. Later, Stinger went on to place further such units on the roof of the block, in these cases without seeking or obtaining the consent of EMW. By 1995 there were five such units, and in 1997 or 1998 a sixth unit was added. None of these is still in place, though some of the accessory apparatus for the new units, to which I will refer, may survive from the earlier period.
New units were placed on the roof in 2007 and 2008. In brief, two new air conditioning condensers were attached to the chimney stack, and two new air conditioning units were placed on the roof in June 2007, with pipe work from the roof, via the chimney stack and flues, to the flats. The latter two units were removed in February 2008 but not the condensers. In December 2008 two further new units were installed, connected to the chimney stack, and thereby to the internal pipe work. The litigation is about the two surviving condensers from June 2007 and the two units installed in December 2008, and the associated pipe work and so on.
The parties' positions
As the issues stood by the time of the hearing below, EMW contended that placing the new equipment on the roof was a trespass on the part of Stinger, since it had not been done with EMW's consent. Stinger contended (and EMW accepted this to be arguable, for the purposes of its application) that EMW had so conducted itself that it could not simply rely on the fact that it had not given its consent, and that it was not entitled to withhold or delay consent unreasonably to a request from Stinger to be allowed to place air conditioning apparatus on the roof if it was of reasonable quality and size and in a reasonable position. Further, Stinger argued that it had sought EMW's consent on 3 December 2008 and that EMW had refused to give its consent by issuing these proceedings in April 2009. That refusal was said to be unreasonable. EMW argued that it was entitled to refuse consent, among other things because what Stinger wanted to do (and then did, without waiting) would or might place EMW in breach of the Headlease Covenant, and that the Grosvenor Estate had not, and would not have, agreed to it.
The facts
In order to see whether Stinger has a reasonably arguable defence to the trespass allegation, it is necessary to examine the exchanges between EMW, Stinger and the Grosvenor Estate, and their respective agents, about the air conditioning plant, particularly from 2006 onwards. Previously, in 1996, there had been correspondence between Smith Waters, agents for EMW, and Stinger about the units then in place. In February 1996 there had been a complaint from another lessee about the noise level, and it was suggested to Stinger that the units needed major overhaul or renewing. In November 1996 it was said that they had not been correctly installed, and that they should be replaced by modern units correctly installed and mounted. In August 1997 the same point was reiterated. Stinger replied, denying any nuisance by way of noise to other flats and any defect in the units or their installation. The matter rested there, so far as relevant, until 2006.
In March 2006 on behalf of Stinger, Omniway Properties Ltd (Omniway) asked EMW for permission to carry out substantial internal works. The two flats had been combined into one, and it was proposed to divide them again, in preparation for their eventual sale. The proposals for which consent was asked at that stage did not include anything as regards the roof and the air-conditioning units. Smith Waters passed the application on to the Grosvenor Estate, for whom Murray Birrell acted. Murray Birrell asked Omniway to arrange an inspection. In response to the submission of more drawings, a surveyor in the offices of the Grosvenor Estate said to Omniway in a letter dated 23 May 2006:
"With regard to the proposed AC plant I would advise not to assume approval will be automatically given as the plant of this nature often has to be located outside the demise of the property it serves and it can cause annoyance to neighbours by way of vibration, noise and heat. I would advise information on this aspect of the proposal be sent as soon as possible for consideration."
In August 2006 Smith Waters wrote to Stinger referring to there being a number of roof level air-conditioning units located to the perimeters of the building, which they said would need to be relocated and recommissioned by Stinger.
On 8 September 2006 Murray Birrell wrote to Smith Waters saying that consent would be given by the Grosvenor Estate as freeholder to the works which had been specified by Omniway in the plans submitted, subject to various conditions. The works conditions specified, subject to compliance with which the approval was given, included two passages relevant for present purposes:
"5. Grosvenor's approval to these works does not give consent for the use of any external roof surface as a roof terrace, sitting out space, roof garden or for any purpose not specifically agreed in writing. Access to such roofs is restricted to maintenance and repair purposes only.
16. Please note the following:
…
(ii) This approval does not include for the installation of comfort cooling / air conditioning."
On 27 September 2006 Omniway wrote to Smith Waters asking, among other things, this question:
"A/C units of roof: I have provided Murray Birrell with the details of 2 No A/C condenser units which we would like to install on the roof, same location as former condenser units. Do we also need your approval of this matter?"
The answer, on 4 October, was that EMW's approval was needed, and details should be supplied. On 19 October Omniway sent details of the planned units, though with some further information to follow. On 29 November 2006 representatives of Omniway and Smith Waters met at the property. Omniway told Stinger after the meeting that the position of the air conditioning units,...
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