Wong v Beaumont Property Trust Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PEARSON,LORD JUSTICE SALMON |
| Judgment Date | 12 March 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0312-2 |
| Court | Court of Appeal |
| Date | 12 March 1964 |
[1964] EWCA Civ J0312-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
Lord Justice Pearson and
Lord Justice Salmon
MR LIONEL BLUNDELL, Q. C, and MR M. E. F. CORLEY (instructed by Messrs Wadlake Letts & Birds) appeared as Counsel for the Appellants.
MR W. M, HUNTLEY (instructed by Messrs Barry & Blott, Bristol) appeared as Counsel for the Respondent.
Mr Wai Man Wong is the tenant of a Chinese restaurant in Exeter called the "Chopetiokn". It is situate underground below No. 83 and 84, Queen Street, Exeter. He has a kitchen there where he cooks the food. It is so badly ventilated, however, that it is necessary to have an air duot so as to take the used air up to the roof. This duct uill have to be fixed on to the back wall of the building which belongs to the landlords. Mr Wong asked the landlords for permission to erect the duct and to fix it on the back wall, but thelandlords refused. Mr Wong now seeks a declaration that he is entitled to erect the duct and fix it on the wall without the landlords' consent. To do this, as it seems to me, he has got to show an easement of necessity. This depends on the circumstances in which the lease was granted.
The lease was made on the 25th March. 1957. At that time the owner of Nos. 83 and 84 Queen Street was a Mr Melhuish. He let the three cellars underneath the building to a Mr Blackaby. Before the lease was executed, it had come to the knowledge of the public health department of the City of Exeter that the cellars were going to be used as a restaurant. So they wrote to Mr Blackaby and tola him that it would be necessary to agree upon the lay-out of a ventilation systeme But the lease was executed before any ventilation system was installed. We doubt all concerned had complete confidence that it could be satisfactorily installed. The lease was for 21 years from the 25th March, 1957, at a rent of £250 a year. The tenant covenanted to use the premises as a restaurant, and particularly "at all times of the year during the usual business hours of the locality to keep the demised premises open as a popular restaurant for carrying on the said business in its several branches including the retail sale of chocolate and sugar confectionery and to use his best endeavours to develop extend and improve the said business". There was also a specific covenant by the tenant about amelle and odours.He covenanted "to control and eliminate all smells and odours caused by the use of the demised premises as a restaurantt to comply with the Health Regulations for the time being in foroet so that same shell not become or cause an annoyance or nuisance to the landlord or the tenants and occupiers of adjacent buildings belonging to the landlord".
At that time the Food Hygiene Regulations of 1935 were in force. Regulation 21 said that "suitable and sufficient means of ventilation shall be provided in every food room and suitable and sufficient ventilation shall be maintained there". The public health inspector of the City of Exeter gave evidence as to what was suitable and sufficient. He said that, in order to comply with these regulations in a restaurant like this, there ought to be an overall change of air of twenty times an hour} and in the canopy over the cooking apparatus of 60 changes an hour. The Judge has found, that, at the very time when the lease was made, the existing ordinary flue was insufficient. Unfortunately, the parties did not appreciate that this was so. They made efforts to ventilate through the existing flue, but the result was unsatisfactory. Later on, an electric fan was put in, but that was unsatisfactory too, Although it was unsatisfactory, however, Mr Blackaby carried on a restaurant there. He called it the "Kingfisher" restaurant. He served English food. It was not very profitable. He only served some fifty lunches a day.
At the end of 1961 Mr Wong bought the remainder of the 21 years lease from lap Blackaby. He paid £600 for it. He had the premises decorated. He changed the name to the "Chopatick" restaurant and he started serving Chinese food. He improved the business greatly. The numbers were up to 200 to 250 lunches a day, 60 per cent. of thom being with Chinese food and 40 per cent. with English food. At aboutthis time or a month or two later, on the floor above came in the Midland Bank. The Midland Bank and its staff took objection to the smell and odours which were coming from the restaurant. They reported it to the public health authorities. The public health inspector came and inspected the premises. He said there must be a proper ventilation system. Whereupon Mr Wong called in ventilation experts. All agree that the place cannot be carried on as a restaurant unless there is a proper ventilation system put in. There must be a duct to take away the used air and to carry it off with the required frequency. The duct would have to be 20 inches by 22 inches across. At first it was suggested that this duct should be carried up inside the building but the landlords refused their consent. It was next suggested that it should be carried up outside the building and fixed to the wall outside. Mr Wong asked the landlord. Mr Melhuish, if he would agree to it end he refused. Then in 1962 Mr Melhuish sold the premises to the present landlords. Beaumont Property Trust Ltd. Mr Wong asked them for their consent to put up the duct. They too refused.
The whole question in the case now is: Is Mr Wong entitled to put up this duct outsiae the building without the landlords' consent? The Midland Bank readily consent because they dislike very much the odours and smells which come up. The public health inspector saye it is absolutely essential, if the business is to be carried on at all, that this ventilation duct should be put in. But the landlords object. It is diffioult to see any good reason for the landlords' refusal. The Judge has found that the duct would hardly make any appreciable difference to the landlords at all. Of course it would be unsightly for a big duct to be put up on the back wall. But the baok of these premises is unsightly anyway. It faces a back street and is hardly seen by anyone. The Judge saidi "There will be a trifling disturbance with thesurface of the landlords' property' there will be no disturbance of light: and on that well and in that street the duct will form only a lesser eyesore. The cost of installation and its maintenance will be borne by the plaintiff and the whole scheme will cost the plaintiff £837. The scheme is approved by the public health inspector and by the Midland Bank. The public health inspector Insists that it be carried out to comply with the regulations".
The question is: Has Mr Wong a right to put up this duct without the landlords' consent? If tie is to have any right at all, it must be by way of easement and not merely by way of implied contract. He is not the original lessee, nor are the defendants the original lessors. Each is a successor in title. As between them, a right of this kind, if it exists at all, must be by way of an easement. In particular, an easement of necessity. The law on the matter was stated by Lord Parker of Waddington in Pwllbaoh Colliery Co., Ltd. v. Woodman in 1915 AppealCaeee, p. 646, where he said, omitting immaterial words. "The law will readily imply the grant of such easements as may be necessery to give effect to the common intention of the parties to a grant of real propertyt with reference to the manner or purposes in and for which the land granted is to be used. But it is essential for this purpose that the parties should intend that the subject of the grant should be used in some definite and particular manner. It is not enough that the subject of the grant should be intended to be used in a manner which may or may not involve this definite and particular use". That is the principle which underlies all...
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