![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Queen's Bench Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Piechnik v Oxford City Council [2020] EWHC 960 (QB) (27 April 2020) URL: https://www.bailii.org/ew/cases/EWHC/QB/2020/960.html Cite as: [2020] EWHC 960 (QB) |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[Help]
QUEEN'S BENCH DIVISON
HIGH COURT APPEAL CENTRE, ROYAL COURTS OF JUSTICE
ON APPEAL FROM THE COUNTY COURT AT OXFORD
ORDER OF MR RECORDER BERKLEY QC DATED 25 SEPTEMBER 2019
COUNTY COURT CASE NUMER: D70OX028
APPEAL REF: QA-2019-000286
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DR STEFAN KAZIMIERZ ![]() | Appellant/ Defendant |
|
- and - |
||
OXFORD CITY COUNCIL |
Respondent/ Claimant |
____________________
Mr Justin Bates and Miss Kimberley Ziya (instructed by Knights Professional Services Ltd) for the Respondent
Hearing date: 27 February 2020
____________________
Crown Copyright ©
The Honourable Mrs Justice Tipples DBE:
Introduction
"Whether the Lease of 57 Plowman Tower, Westlands Drive, Headington OX3 9RA ("the Property") dated 18 February 2003 can be construed so as to give the Lessor the right to enter the Property (a right of access) for the purpose of carrying out works of improvement which are not works of repair, further or alternatively whether it contains an implied term of covenant to that effect".
This is referred to as "Question One".
"Whether the decisions of the First-tier Tribunal dated 22 February 2017, 4 October 2017 or 30 July 2018 or all of them in Oxford City Council v Respondent Leaseholders of 54 Flats, case ref CAM/38UC/LSC/2016/0064, bind the Court to determine that the Disputed Works identified at paragraphs 5(a)-(h) and 14(a)-(k) of the defendant's defence and counterclaim dated 18 September 2018 are works of improvement which are not works of repair, within the meaning of Question One".
This is referred to as "Question Two".
"(1) The answer to Question One is that the Lease does give the claimant the right to enter the premises for the purpose of carrying out works of improvement which are not works of repair, to the extent set out in the reasoned judgment.
(2) The answer to Question Two is that the FTT Decisions are binding upon the parties but only to the extent that they have determined that any of the Disputed Works are improvements rather than repairs."
The Lease
Relevant provisions of schedule 6 to the HA 1985
"the … grant shall not exclude or restrict the general words implied under section 62 of the Law of Property Act 1925, unless the tenant consents or the exclusion or restriction is made for the purpose of preserving or recognising an existing interest of the landlord in tenant's incumbrances or an existing right or interest of another person".
"Rights of support, passage of water, etc
2.-
(1) The conveyance or grant shall, by virtue of this Schedule, have the effect stated in sub-paragraph (2) as regards—
(a) rights of support for a building or part of a building;
(b) rights to the access of light and air to a building or part of a building;
(c) rights to the passage of water or of gas or other piped fuel …;
(d) rights to the use or maintenance of cables or other installations for the supply of electricity, for the telephone ….
(2) The effect is –
(a) to grant with the dwelling-house all such easements and rights over other property, so far as the landlord is capable of granting them, as are necessary to secure to the tenant as nearly as may be the same rights as at the relevant time were available to him under or by virtue of the secure tenancy or an agreement collateral to it, or under or by virtue of a grant, reservation or agreement made on the severance of the dwelling-house from other property then comprised in the same tenancy; and
(b) to make the dwelling-house subject to all such easements and rights for the benefit of other property as are capable of existing in law and are necessary to secure to the person interested in the other property as nearly as may be the same rights as at the relevant time were available against the tenant under or by virtue of the secure tenancy or an agreement collateral to it, or under or by virtue of a grant, reservation or agreement made as mentioned in paragraph (a)." (underlining added)
(3) This paragraph—
(a) does not restrict any wider operation which the conveyance or grant may have apart from this paragraph; but
(b) is subject to any provision to the contrary that may be included in the conveyance or grant with the consent of the tenant."
"14.-
(1) This paragraph applies where the dwelling-house is a flat.
(2) There are implied covenants by the landlord—
(a) to keep in repair the structure and exterior of the dwelling-house and of the building in which it is situated (including drains, gutters and external pipes) and to make good any defect affecting that structure;
(b) to keep in repair any other property over or in respect of which the tenant has rights by virtue of this Schedule;
(c) to ensure, so far as practicable, that services which are to be provided by the landlord and to which the tenant is entitled (whether by himself or in common with others) are maintained at a reasonable level and to keep in repair any installation connected with the provision of those services; …"
The terms of the Lease
"1. IN CONSIDERATION of the sum of FORTY THREE THOUSAND SIX HUNDRED AND EIGHTY POUNDS (£43,680.00) now paid by the Tenant to the Council (the receipt whereof the Council acknowledges) being the sum which the parties have agreed is the price payable under Part V of the Housing Act 1985 and in consideration also of the rents and covenants by the Tenant and conditions reserved and contained in this Lease and those implied by statute the Council GRANTS to the Tenant with FullTitle
Guarantee THE PREMISES [Flat 57, Plowman Tower as defined in the First Schedule to the Lease] TOGETHER with the easements rights and privileges mentioned in the Second Schedule but EXCEPT AND RESERVED to the Council as mentioned in the Third Schedule TO HOLD the premises to the Tenant from the date of this Lease for a term of years expiring on the Eighteenth day of January Two thousand one hundred and thirteen ("the term") SUBJECT to (i) the restrictions and stipulations contained in the Fourth Schedule (ii) the Charge referred to in Clause 2 YIELDING AND PAYING during the term the yearly rent of TEN POUNDS without deduction payable in advance on the First day of April in every year the first payment or proportion thereof as the case may be to be paid on the date of this Lease."
"3. THE TENANT TO THE INTENT that this covenant may so far as possible bind all persons who now are or may become entitled to any estate or interest in the whole or part of the premises but not so as to bind the Tenant or any such person after he or they shall have parted with all their estate and interest covenants with the Council that the Tenant and his successors intitle
will perform and observe the stipulations set out in the Fourth Schedule PROVIDED THAT …
4. THE TENANT for himself and his successors intitle FURTHER COVENANTS with the Council (and with and for the benefit of the owners lessees and occupiers from time to time during the term granted by this Lease of the other premises comprised in the building ("the building") of which the premises form part as follows:-
4.1 To pay the Council for each year ending on the thirty first day of March of the term ("the year") a sum being the Tenant's contribution ("the contribution") towards the annual costs expenses insurance outgoings and matters (including Value Added Tax where applicable) as mentioned in the Fifth Schedule ("the service charges"); …"
"AT the expiration or sooner determination of the term to peaceably surrender and yield up to the Council ALL AND SINGULAR the premises painted repaired cleansed maintained and kept as mentioned below TOGETHER with all additions and improvements made in the meantime and all fixtures of every kind in or upon the premises or which during the term may be affixed or fastened to or upon the premises EXCEPT tenants' fixtures which the Tenant shall be at liberty to remove but making good all damage caused to the premises."
"7. THE COUNCIL covenants with the Tenant as follows:-
7.1 The Tenant paying the rent reserved and paying to the Council the contributions covenanted to be paid in Clause 4 and performing and observing the several covenants conditions and agreements on the Tenant's part contained in this lease shall peaceably hold and enjoy the premises during the term without any interruption by the Council or any person rightfully claiming under or in trust for the Council."
"The Council will at all times during the term maintain the external main walls foundations and roof of the building the party walls and party floors and ceilings not included in this demise and the pipes including water drainage gas supply pipes television cables and electric supply cables (excluding meters) serving the building and used in common with the owners lessees or occupiers of the other flats in the building main entrance passages landings staircase stores and drying areas and the lift(s) enjoyed or used by the Tenant in common with the other owners lessees or occupiers of the other flats in the building and (where applicable) the accessways paths forecourts car parking areas landscaped areas boundary fences and walls adjoining the building and being part of the Estate in good and substantial repair and condition except as regards damage caused by or resulting from any act or default of the Tenant PROVIDED ALWAYS AND IT IS EXPRESSLY AGREED that the Council shall not in any way be held responsible or liable for any damage caused by any neglect or failure to effect such maintenance or in respect of any damage caused by any defects or any want of repair to the whole or any part of the building garden fences or walls the lift(s) or in or to any such pipes cables wires drainage services or apparatus unless and until notice in writing of any such neglect failure want of repair or defect has been given to the Council by or on behalf of the Tenant and the Council."
"All wires cables pole brackets fixtures fittings repeater kiosks and other similar equipment on over or along to and/or against the premises for the diffusion of messages broadcasts programmes and entertainments (including television programmes) broadcast from any authorised broadcasting station and the right to enter on the premises on reasonable notice being given and in a good workmanlike manner to renew inspect repair maintain and remove the wires cables poles brackets fixtures fittings repeater kiosks and other similar equipment the persons exercising this right making good at their own expense and as soon as reasonably possible all damage caused."
"8. To permit the Council and its Surveyor or agents with or without workmen and other upon 2 days previous notice in writing (except in the case of emergency) at all reasonable times to enter into and upon the whole or any part of the premises to view and examine the state of repair and condition of the same and give or leave on the premises notice in writing to the Tenant of all defect sand wants of reparation found for which the Tenant is liable AND the Tenant shall within the period of three calendar months after giving or leaving of such notice and the covenant to that effect in the Lease PROVIDED ALWAYS that if the Tenant shall at any time make default in the performance of any of the covenants contained in this Lease for or relating to the repair of the whole or any part of the premises or if the defects or wants of reparation specified in the notice given or left are not remedied by the Tenant within the period required in the notice it shall be lawful for the Council (but without prejudice to the right of re-entry in Clause 8.1[)] to enter upon the whole or any part of the premises and repair them at the expense of the Tenant in accordance with the covenants and provisions of this Lease and the costs and expenses of such repairs incurred by the Council or its agents shall be repaid by the Tenant to the Council on demand
…
12. To permit the Council and its Surveyor or Agent and (as respects work in connection with the premises and any neighbouring or adjoining premises) their lessees or tenants with or without workmen and others at all reasonable times during the term on giving 2 days previous notice in writing (or in the case of emergency without notice) to enter into and upon the whole or any part of the premises
[1][1] for the purposes of repairing any part of the said building or any other adjoining or contiguous premises and
[2] for the purposes of making repairing maintaining supporting rebuilding cleansing lighting and keeping in order and good condition all roofs foundations sewers drains pipes cables watercourses gutters wires televisions aerials and associated apparatus (if any) or other structure or other conveniences belonging to or serving or used for the whole or any part of the Building AND ALSO
[3] for the purposes of laying down maintaining repairing and testing drainage gas and water pipes and electric wires and cable television aerials and associated apparatus (if any) and
[4] for similar purposes
the Council its lessees or tenants (as the case may be) making good all damage caused to the premises
…
24. To repair maintain and uphold and keep the premises as to provide all necessary support shelter and protection to those parts of the building not comprised in this demise and to afford to the Council the owners lessees or occupiers or the neighbouring and adjoining premises access for the purpose and subject to the conditions set out in sub-clause 12 of this Schedule"
The decisions of the FTT
a. the service charge provisions in the leases were not void, and the service charge demands were validly made;
b. the statutory consultation in the LTA 1985 been complied with;
c. Schedule 6 of the HA 1985 limited service charges to the provision of services to which the tenants were contractually entitled under their leases; and
d. some elements of the service charges demanded were outside the service charge regime in the leases and some were not, which would require determination on the evidence.
"[16.] … this assertion is based on the premise that any service or work mentioned in Schedule 4, paragraph 12, is the subject of an implied covenant that the tenants have to pay towards such service or work as part of the service charges.
[17.] The Tribunal does not accept that proposition. Schedule 4 simply imposes restrictions and stipulations on the tenants. Paragraph 12 gives the [claimant] rights to enter the demise to carry out certain works. If some of those works are not included in the covenant to repair and maintain, the paragraph does not mean that those works, by definition, can be subject to further service charges. The paragraph only gives the [claimant] rights to enter the demise and make good all damage caused. It does not involve a covenant to do any more works or provide any more services than make good any damage it has caused at its own cost."
The recorder's decision
"[45.] The Tenant's covenant to permit access [under paragraph 12 of the Fourth Schedule] is not coextensive with and is likely to be significantly wider than the claimant's repairing obligations [under clause 7.3] even as extended by the implied terms derived from [paragraph 14 of Schedule 6 of] the [HA 1985].
[46.] In my judgment under the relevant Lease the defendant would be under an obligation to permit the Claimant access for purposes which went beyond the express or implied repairing obligations …
[48.] So we have established thus far rights of entry which arise under one or more of the following three sources:- (1) a counterpart to the duty to perform the covenant in clause 7.3; and (2) a counterpart to the duty to perform the implied covenants imposed by [the HA 1985]; and (3) arising from the corresponding duty to permit access expressly covenanted for by the Tenant in paragraph 12 of the Fourth Schedule.
[49.] I consider that the Trial Judge will be able to take each of the items of Disputed Works and determine whether or not such Works fall within the ambit of those specific rights of entry."
"(1) In the case of this Lease the parties granted to each other specific rights and privileges and made express reservations, which should form the basis for their contractual rights and obligations, subject only to the implied rights imposed by statute under [the HA 1985], which were no doubt intended to protect the interests of the Tenant as he moved from his protection as a secured tenant into the private sector.
(2) I do not regard that there is any need to imply any other terms in order to give business efficacy to the Lease.
(3) The covenant for quiet enjoyment in the domestic context is in effect a contractual expression of the Tenant's right to a home life and privacy and should not be lightly interfered with, save as provided for in the Lease."
"[63.] In my judgment there is a limited right of access which arises independently from the express terms of the Lease or the implied term derived from statute, where the Tenant's refusal of access interferes with powers otherwise available to the Landlord and which the Landlord wishes to exercise so as to avoid the risk of death or personal injury or to remedy a state of affairs which is injurious to health. That far I am able to go, in eroding the tenant's right to quiet enjoyment in the context of Question One, but no further. It seems to me that such limited right of access is impressed upon the grant of lease, by virtue of paragraph 2(2)(b) of the Schedule 6 to the [HA 1985], it being a right which was available against the tenant, under or by virtue of the existing secure tenancy, for the benefit of other property.
[64.] Without wishing myself to make any factual finding, the Claimant might seek to persuade the Trial Judge that the introduction of specific fire precaution measure was necessary to avoid the risk of death or personal injury or to remedy a state of affairs which was injurious to health."
"(1) The Lease does give the claimant the right to enter the premises for the purpose of carrying out works of improvement which are not works of repair, because:
(a) clause 7.3 includes obligations to carry out specified works irrespective [or] independent of whether they [were] works of repair, as such ("the Express Duties").
(b) the claimant has duties to carry out works in accordance with the implied terms imposed by the [HA] 1985 which might be wider than the repairing covenant at clause 7.3 ("the Implied Duties");
(c) in order to facilitate the performance by the claimant of the Express Duties and the Implied Duties there is a corresponding right of access ("the Implied Right of Access"); and
(d) in addition to the Implied Right of Access, the Tenant has covenanted in clause 3 and paragraph 12 of the Fourth Schedule to permit access for works which are not necessarily works of repair ("the Express Right of Access");
(e) in addition to the Implied Right of Access and the Express Right of Access, the claimant has the right to enter the premises for the purposes of carrying out works in order to avoid the risk of death or personal injury, or to remedy a state of affairs which is injurious to health ("the Extended Right of Access").
(2) The Trial Judge will have to consider each of the disputed items to determine whether or not they fall within the ambit of the Implied Right of Access or the Express Right of Access or the Extended Right of Access, as formulated. I have not expressed any view."
The grounds of appeal
a. Ground 1: The learned recorder made an error of law, in that he has failed to identify the extent of any qualification on the apparently wide words of the entry clause (the Express Right of Access) at paragraph 12 of the Fourth Schedule to the Lease which is consistent with the Lease's covenant for quiet enjoyment.
b. Ground 2: The learned recorder has made an error of law in finding (at paragraph 63 of the judgment) that the Extended Right of Access is implied into the Lease by virtue of paragraph 2(2)(b) of Schedule 6 to the HA 1985.
c. Ground 3: Further or alternatively to Ground 2, there is no scope for implying into the Lease the Extended Right of Access for any other reason.
Ground 1: Is the right of access at para. 12 of the Fourth Schedule qualified by the covenant of quiet enjoyment?
The arguments
Discussion
a. The demise of the premises in clause 1 of the Lease is subject to the restrictions and stipulations contained in the Fourth Schedule.
b. The Tenant, and now the defendant, covenanted with the claimant that he will "perform and observe the stipulations set out in the Fourth Schedule": clause 3.
c. Those stipulations include paragraph 12 of the Fourth Schedule which is a broad covenant. This is because it permits entry in order to: (i) repair any part of the building; (ii) make, repair, maintain, support, rebuild, clean, light, keep in order and good condition, amongst other things, pipes, television aerials or any other convenience which belongs to or serves or is used by any part of the building; (iii) lay down, maintain repair and test drainage, gas, water pipes, electric wires and cable, television aerials and associated apparatus; and (iv) for any similar purposes.
d. The claimant's covenant of quiet enjoyment is on the basis that the Tenant, and now the defendant, pays the rent reserved and contributions covenanted and performs and observes "the several covenants conditions and agreements in the Tenant's part contained in this Lease": clause 7.1. The covenant included the covenant to perform and observe the stipulations set out in the Fourth Schedule, which are all clearly set out.
e. Therefore, the demise of the premises is subject to the claimant's rights of access in paragraph 12 of the Fourth Schedule and defendant's covenant to provide such access is expressly cross-referred to and recognised in clause 7.1. In these circumstances, it is not a derogation from grant on the part of the claimant for it to rely on the width of the rights of access to the premises expressly provided for in paragraph 12 of the Fourth Schedule to the Lease. The decision in Yeomans Row Management Ltd v Bodentien-Meyrick does not assist the defendant. This is because the terms of the lease in that case were very different to the present circumstances and, in any event, the case turned on its own particular facts: per Parker LJ at para [18].
f. Further, there is no basis for reading paragraph 12 of the Fourth Schedule as being subject to clause 7.3 of the Lease. Rather, there is no reason why the rights of access in paragraph 12 of the Fourth Schedule cannot go beyond the obligations in 7.3, for example to allow the claimant access to discharge its obligations to other tenants (which may exceed or be different to the obligations contained in paragraph 7.3 of this lease).
Grounds 2 and 3: Is there an "Extended Right of Access" implied into the Lease?
The arguments
Discussion
Ground 4: Do the FTT decisions give rise to an estoppel by convention?
The arguments
Discussion
Conclusion
Note 1 Sub-paragraphs with the numbers [1] to [4] added. [Back]