IHC 451/10 IHC 512/10
Strand, London, WC2A 2LL
B e f o r e :
| EATON MANSIONS (WESTMINSTER) LTD
|- and -
|STINGER COMPANIA DE INVERSION S.A.
Mr James Hanham (instructed by Clifford Chance LLP) for the Defendant
Hearing date: 7 July 2010
Crown Copyright ©
Mr Justice Wyn Williams:
"No alterations 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….….."
As a matter of interpretation and adopting the interpretation which is most favourable to the Defendant this clause prohibits alterations which have the effect of altering the external architectural appearance of the building; it also prohibits alterations to the chimney stacks or chimney pots. Obviously, Grosvenor may relax the rigour of this covenant by giving consent to what would otherwise be prohibited alterations; equally clearly it may refuse to consent to such alterations and its consent need not be reasonable.
"We act for Grosvenor in connection with your recent application.
John Dunkin at Grosvenor has kindly provided us with details, drawings and all correspondence to date. We will be dealing with this matter from this moment onwards up to completion of any works deemed appropriate.
Before we consider matters further, I would like to carry out an inspection of the property at a mutually convenient time. Please contact me, or my secretary so that we can arrange this.
In the meantime I would be grateful if you would confirm the following. These are:
1) Cost of works up to builder's finish.
2) Progress of statutory applications.
3) Time scales for construction.
4) Outline description of works (limited to one sheet of A4)
In the event we require you to amend the proposed works, a further 3 sets of the drawings will be required before a formal approval letter is issued.
Please note that no works are to be commenced on site until the relevant plans have been considered by Grosvenor or their agents and all Conditions Precedent complied with."
This letter was copied to Mr Dunkin at Grosvenor and Mr Waters of Smith Waters.
"Thank you for your letter dated 18 May 2006.
The attached drawings have been passed on to our consultants, Murray Birrell Ltd, as most appear different from those previously sent to this office.
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."
This letter was copied to Mr Waters. AC was a reference to air conditioning.
"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."
"We met on the ground floor of the property and accessed the roof, collectively, via the main roof staircase in the centre of the roof. We walked over to the two remaining small June 2007 units, and examined the surrounding area, including the side of the chimney stack through which the pipe work passed. Specifically, we walked between the narrow passageway between the chimney recess, against which the larger June 2007 units had been positioned, and the chimney stack, to which the remaining small June 2007 units were affixed and through which the unconnected pipe work was suspended. I recall that the chimney stack was reviewed from both the unit and the pipe work sides. I attach at page 19 a plan of the roof illustrating the position of the chimney recess and chimney stack. I believe we spent approximately 10 minutes on the roof. Given the sole purpose of the site visit was for Grosvenor to view the June 2007 units and pipe work and to discuss the re-installation or replacement of the two larger June 2007 units in the chimney recess, I believe it is inconceivable that Mr Hall would not have been aware of the, plainly visible, pipe work emerging from the chimney stack. Mr Hall, however, raised no objections whatsoever to the pipe work or collection which I do not recall even being mentioned. Mr Hall simply advised that he had no objections in principle to the air conditioning units or proposal to install two further units in the chimney recess, provided that [the Claimant] was happy and that planning permission was obtained. This recollection is supported by the email correspondence which followed the meeting between Mohammed Jan and Mr Hall….in which no reference to the drilling works or pipe works is made.
4.5 I was not surprise that the drilling works and pipe work had not been raised by Mr Hall because I believe that this had never been a cause of concern for [the Claimant] or Grosvenor. I refer in this respect to the letter of [the Claimant's] agents Smith Waters to OPL on 19 July 2007….written following the drilling works, which states "the Directors were impressed with the use of the chimney flue to conceal pipe work and to limit the amount of cabling which criss-crosses the roof. The solution for the building might continue this approach."
Mr Teesdale goes on to say that it was a consequence of this meeting and the apparent approval of Mr Hall for what existed and what was proposed that he made arrangements for the installation of units in December 2008.
"My understanding from our meeting is that Grosvenor Estate will approve the AC condenser location based on the following. 1) Smith Waters consent, to be passed to Grosvenor Estate.
Once the above consent is passed on, the following Grosvenor Estate criteria needs to be taken into consideration, under which you would approve the location and the size of the condenser units.
a. The units should not be visible from street level or ground and first floor neighbours.
b. The structural loading on the roof.
c. Acoustic survey, for a seven day period.
d. Consideration, to the other neighbours future potential request to add their own AC units (enough space for other parties).
Trust that this is as discussed however if I miss something kindly advise"
Mr Hall replied:-
"Thanks for the note following our brief meeting. The over-riding factor here is the fact that you need to follow the correct procedure. That is to apply up the chain via Smith Waters. I am unable to consider the matter formally until they approach Grosvenor having initially agreed matters with you.
In the meantime, I have the following additional comments to make having read your numbered points below:
1. You need planning consent.
2. Any approval will be subject to irrevocable licence.
3. I do not have a copy of the drawings so I have nothing to review on paper.
4. I recall a lot of condensers, somewhere in the region of 6 no for the two flats. I have asked you to review this because I feel this is excessive. You will appreciate I'm obliged to forward a copy of this email to Richard Waters."
"I have spoken to Andy Hall of Murray Birrell asking for Grosvenor about the existing possible future air conditioning units. His view confirms my own. He thinks it would be difficult to install and screen sufficient units for all flats (although some flats will not want them) and also think that the two large air conditioning units from flats 8 and 10 are too visible and too big and notwithstanding the issue of planning consent he is likely to recommend to Grosvenor that they be refused consent from Grosvenor even if Eaton Mansions approve them.
Andy might be prepared to consider a long-term overall plan for the roof of Eaton Mansions, if put forward by Eaton Mansions (Westminster) Ltd, and if suitable Grosvenor might give a licence for Eaton Mansions to allow a set number of units in pre-agreed locations without further reference to them. This would be subject to planning consent(s)."