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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Kilmartin SCI (Hulton House) Ltd v Safeway Stores [2006] EWHC 60 (Ch) (27 January 2006) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2006/60.html Cite as: [2006] EWHC 60 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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KILMARTIN SCI (HULTON HOUSE) LTD |
Claimant |
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- and - |
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SAFEWAY STORES |
Defendant |
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John McGhee QC and Michael Pryor (instructed by Messrs Clifford Chance) for the Defendant
Hearing dates: 11th, 12th, 13th, & 16th January 2005
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Crown Copyright ©
Mr Justice Warren :
Introduction
Events leading up to the Agreement
a. "Anticipated Net Internal Area": in relation to the Basement Area 1020 square metres and in relation to the Ground Floor 890 square metres, a total of 1910 square metres. This was the area which Kilmartin's architects anticipated being the area of the completed shell. In fact, this figure may have been based on an incorrect application of the NIA approach. However, nothing turns on this in relation to the question of construction which I need to decide.
b. "Certificate of Practical Completion": a certificate of practical completion of the Works issued by the Architect pursuant to the Building Contract (ie the contract between Kilmartin and a contractor in relation to the Works).
c. "Condition": the grant of Satisfactory Planning Permission.
d. "Material Variations": any variation, alteration or addition to the Works which has any of a number of consequences including one which "materially reduces the Anticipated Net Internal Area".
e. "Minimum Area": a net internal area which is less than 1852.7 square metres. It is agreed that the reference to net internal area is to Net Internal Area as defined. The figure of 1852.7 is 97% of 1910. This reflects the Agreement reached in negotiations that Safeway would be entitled to terminate the agreement if the area of useable space provided was more than 3% less than 1910 square metres.
f. "Net Internal Area": the net internal area of the Premises (the Basement and Ground Floor as described in the Lease (in the form set out in the Agreement) "measured in accordance with the Fifth Edition of the RICS Code of Measuring Practice".
g. "Onerous Conditions": any one of a number of conditions including one which "limits the Net Internal Area of the Premises to less than the Minimum Area".
h. "Satisfactory Planning Permission": a Planning Permission (ie for the Works) which does not contain (among other matters) any Onerous Condition.
i. "Tenant's Works": the works to be carried out by the Tenant under Clause 9.
j. "Specification": the plans detail drawings schedules and other documents detailing the Works annexed to the Agreement as Annexure 5.
k. "Works": this includes (i) the works to be carried out by Kilmartin to the shell of the premises (ii) the internal works and ducting to enable Safeway to carry out its fitting out works and (iii) any other works referred to in the Specification.
The Disputed Areas, the Code, the Expert evidence
The Disputed Areas
a. The areas taken up by the goods lift, the disabled lift and the permanent (but not the notional) lift lobby associated with the ground floor of the disabled lift. Both the lifts run between the ground floor and the basement. The goods lift occupies a total area on both floors of 18.7 square metres. The disabled lift (including the lobby) occupies a total area of 9.6 square metres.
b. An area either forming part of the delivery area, or immediately adjoining it, on the ground floor through which a fire escape route runs. I shall call it the Adjoining Area. This area is rectangular, measuring about 8.6 square metres. It is in excess of 2 metres wide. It forms part of the connection between the main delivery area (of which it may be said actually to form part – a question I will look at further later) and the remainder of the ground floor area. It is at a slightly higher level that the main delivery area: I do not know the precise height difference, but it is an easy step up or down. The Adjoining Area is open at the main delivery area end; but completely free access into that area is obstructed by a column in the corner of the Adjoining Area itself. At the other end of the area is a large aperture into the main part of the ground floor, large enough for quite bulky items to be manhandled through.
c. A sloping area at the front of the ground floor. I shall call this "the Front Sloping Area". This is a long and narrow strip, some 8.34 metres long, which runs parallel to the shop front and which slopes down from the level of the main floor to the front wall. It comprises about 10 square metres (Mr Osmond, Safeway's expert, says 9.9, Mr Molloy, Kilmartin's expert, says 10.2). The depth of the strip (from the front wall under the shopfront window to the line where the floor becomes horizontal varies from 1.14 metres to 1.31 metres and the fall varies from (according to Mr Osmond) 0.28 metres to 0.20 metres or a gradient of between 1:6.7 and 1:4. Like the main floor to which it rises, this sloping area is an unfinished concrete area.
d. A ramp at the rear of the basement close to the plant room. I shall refer to it as the Basement Ramp. This comprises a sloping area running from the floor level up to the rear wall. It was formerly a vehicular access route when the basement was used as a car park. On the right hand side, as one looks up this area, is a flat floor area which is accessed by some metal stairs next to the Basement Ramp. The area of the Basement Ramp is about 16.6 square metres. The length of the Basement Ramp is about 7 metres and its rise is 0.8 metres, a gradient in excess of 1:9. Like the remainder of the basement, it is a concrete area. The Basement Area is the limit of the demise: it would not be possible for Safeway to level the area by digging it out to the floor level of the adjoining main floor area.
e. Two adjoining flat areas referred to as plinths towards the front of the basement. I shall refer to them as the Front Plinths. It is not, to my mind at least, clear precisely what a "plinth" is. The word has a number of common meanings, for instance the lower member of the base of a column, the projecting part of a wall immediately above ground, a base supporting a statue or vase. I use the word plinth only because this is what the parties have done, although whether it is a plinth within any of those ordinary meanings is open to doubt. The Front Plinths are in the corner of the basement abutting Fleet Street and St Dunstan's Court. They have an area of about 21.8 square metres. They comprise of three components with dimensions as follows:
Depth Height Area
Lower component 1.5m 0.32m 7.6m2
Middle component 1.5m 0.58m 13.8m2
Upper component 0.4m 0.71m 0.4m2
Total 21.8 m2
The upper component, a small square area sitting on top of the middle component, is agreed to be excluded from NIA.
The Code
a. GEA (Gross External Area)
b. GIA (Gross Internal Area)
c. NIA (Net Internal Area).
a. "Gross Internal Area is the area of a building measured to the internal face of the perimeter walls at each floor level. (see Note GIA 4)"
b. "Net Internal Area is the usable area within a building measured to the internal face of the perimeter walls at each floor level. (see Note NIA 2)".
The two Notes are in the same terms, and direct measurement to the brick/block work or plaster coat, not to the surface of internal linings installed by the occupier.
The Expert Evidence
Conclusions on the Code
The Lifts
The Adjoining Area
The Sloping Area
The Basement Ramp
"Therefore I would consider a ramp should be excluded from the core definition of [NIA] if it is more substantial than a ramp of lightweight construction to false floors, and also not capable of use for the general commercial activity being envisaged within the property concerned."
The Front Plinths
Tolerances
Conclusion