England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		6/12/2005

Mr Justice Bell:

1. This is an appeal by the original Claimant, Mrs Elizabeth Jones, against the decision of His Honour Judge Simpkiss in the Brighton County Court, on 14 April 2005. The judge dismissed her claim for declaratory and injunctive relief relating to an easement in the form of a right of access to a bin storage area, in respect of premises which she had originally leased from Mr Derek Burt who had transferred his interest to the Defendant, Mr Christos Emmanuel Cleanthi.
2. The judge dismissed Mrs Jones' claim on the basis that the easement was extinguished by the operation of section 352 of the Housing Act 1985 ("the Act"), and a notice served on Mr Burt on 29 November 1994, under the section, which required the building of a wall which prevented the exercise of the right of access.
3. The essential facts and statutory provisions are that in June 1986 Mrs Jones acquired the balance of a 99 year leasehold interest in Flat 10A, 41 King's Road, Brighton, at a low rent. The original lease was dated 19 March 1979. Mr Burt was the freeholder throughout her term until he assigned his interest to Mr Cleanthi in November 2003.
4. The building was and remains a house in multiple occupation, for the purposes of Part XI of the Act. The ground floor consisted of two shops, east and west, with a hallway running from the front door of the building to the rear, between the two shops, and a yard or rear area with stores and the foot of a fire escape from the top of the building. A staircase and liftshaft off the hallway gave access to a number of residential flats above, including Flat 10A, and there was also access by steps to a basement. There was access from the hallway to the rear area via a door at the rear end of the corridor. To the right of that door was another door into the store at the rear of the east shop.
5. By clause 1 of the lease, Mrs Jones was demised Flat 10A:

"… TOGETHER … with the use (in common with the Lessor and the owners and occupiers of the other flats in the Building and all other persons who may now or hereafter become entitled thereto) of the communal refuse bins in the space tinted green on … plan A and together also with the rights set out in the first schedule hereto."

The green space on Plan A denoted the rear area.

6. The rights set out in the first schedule included, in paragraph 3:

"The right for the Lessee his servants and visitors to use in common with the lessor the owners and occupiers of any other part of the Building and their visitors and all other persons who are now or may become entitled thereto such steps staircases halls paths forecourts landings and passages and the lift forming part of the Building as afford access to and egress from the flat and the refuse bins."

7. Clause 4 of the lease contained the usual covenant of quiet enjoyment by the lessor that, provided that the lessee observed her covenants, conditions and agreements, the lessee "may peaceably hold and enjoy the Flat during the … term without any lawful interruption or disturbance from or by the lessor …"
8. By Clause 3 and paragraph 8 of the Third Schedule of the lease, the lessor covenanted with the lessee:

"To carry out with due expedition any works to the Building but not to any of the flats therein which may be required to comply with any statutory notices or provisions affecting the same."

9. There was a long history of legal and other disputes between Mrs Jones and Mr Burt, largely resolved in her favour, and the judge rejected the suggestion in cross-examination that Mrs Jones had acted unreasonably in those matters. Indeed, he found that Mr Burt had acted unreasonably in a number of respects.
10. Refuse bins into which lessees, including Mrs Jones, put their rubbish were kept in the rear area, and dustmen collected them from the area and emptied them weekly until 1989 when, as the judge found, tenants had to put their rubbish out at the front of the building in King's Road once a week to be collected. In March 1990 Mr Burt proposed that the rear area should no longer be accessible to residents and that they should return their keys to the area and the lock should be changed. Some residents did not agree to being deprived of their rights to store rubbish in the area as there was nowhere to keep it, in their small flats, pending collection if they lost the rear area where they were still storing it. The judge accepted Mrs Jones' disputed evidence to this effect, and her contention that Mr Burt blocked off the rear area at this time and only unblocked it when she sent him a solicitor's letter.
11. As the result of the difficulties she was having, Mrs Jones moved out of Flat 10A and in September 1992 she let it to students. She did not return to live in Flat 10A until January 2003. Mr Burt had a number of addresses at which Mrs Jones lived in the meantime.
12. Section 352 of the Act provides:

"(1) … the local housing authority may serve a notice under this section where, in the opinion of the authority, a house in multiple occupation fails to meet one or more of the requirements in (a) to (e) of subsection 1A, and having regard to the number of individuals or households or both for the time being accommodated on the premises, by reason of that failure the premises are not reasonably suitable for occupation by those individuals or households.

(1A) The requirements in respect of a house in multiple occupation referred to in subsection (1) are the following, that is to say, -

(d) … there are adequate means of escape from fire; and

(e) there are adequate other fire precautions

(2) … the notice shall specify the works which in the opinion of the authority are required for rendering the house reasonably suitable –

(a) for occupation by the individuals and households for the time being accommodated there, or

(b) for a smaller number of individuals or households …

(3) The notice be served –

(a) on the person having control of the house, or

(b) on the person managing the house;

and the authority shall inform any other person who is to their knowledge an owner, lessee, occupier or mortgagee of the house of the fact that the notice has been served.

(4) The notice shall require the person on whom it is served to execute the works specified in the notice as follows, namely –

(a) to begin those works not later than such reasonable date, being not earlier than the twenty-first day after the date of service of the notice, as is specified in the notice; and

(c) to complete those works within such reasonable period as is so specified.

Subsection (5) gives power to withdraw a notice if the number of people living on the premises is reduced, making the works in the notice unnecessary and subsection (5A) provides that a notice is a local land charge.

13. Section 352(7) provides that where a notice is served and the work is carried out, the authority shall not serve another notice within five years of the service of the first notice.
14. Section 353 provides:

"(1) A person on whom a notice is served under section 352 (notice to require works to render premises fit for number of occupants), or any other person who is an owner, lessee or mortgagee of the premises to which the notice relates, may within 21 days from the service of the notice, or such longer period as the local housing authority may in writing allow, appeal to the county court.

(2) The appeal may be on any of the following grounds –

(d) that the authority have refused unreasonably to approve the execution of alternative works, or that the works required by the notice to be executed are otherwise unreasonable, or are unnecessary … or

(f) that some other person is wholly or partly responsible for the state of affairs calling for the execution of the works, or will as a holder of an estate or interest in the premises derive a benefit from their execution, and ought to pay the whole or part of the expenses of executing them."

Subsection (4) allows the court to revoke or vary the specified works if the number of persons living in the house has been reduced. Subsection (5) makes provision for orders that such another person should contribute to the cost of the works.

15. The Act does not contain an express obligation to carry out the works in the notice but section 375 provides that if a notice under section 352 is not complied with the housing authority may do the work and recover the cost, and section 376 provides:

"(1) A person on whom a notice has been served under section 352 … (notices requiring the execution of works) who wilfully fails to comply with the notice commits a summary offence and is liable to a fine …"

16. Section 377 provides:

"(1) where –

(a) a person is required by a notice under section 352 … to execute works and

(b) another person having an estate or interest in the premises unreasonably refuses to give a consent required to enable the works to be executed,

the person required to execute the works may apply to the county court and the court may give the necessary consent in place of that other person."

17. In April 1994, the then fire officer inspected 41 King's Road and later made enquiries of Mr Burt. On 4 November 1994, Mr Burt wrote to the lessees, including Mrs Jones, saying that the fire officer had made recommendations in accordance with an enclosed schedule, and that he (Mr Burt) proposed to instruct his surveyor to prepare a specification and to obtain estimates from contractors. The enclosed specification was a copy of the specification which was served on Mr Burt on 24 November 1994 by Brighton Borough Council, with a notice under section 352 of the Act, "to execute works to make a house in multiple occupation fit for a number of occupants."
18. The notice expressed the opinion that the house failed to meet the requirements in section 352(1A) as set out in Schedule 1 of the notice and required Mr Burt, under section 352(4), to carry out the works specified in Schedule 2 which was headed "Specific action of works to be carried out", beginning them not later than 24 February 1995 and completing them within three months of that date. Schedule 1 said that the house failed to meet requirements of adequate means of escape in case of fire and adequate other fire precautions. Paragraph 1.6 of Schedule 2, under "Means of Escape" required Mr Burt to "Separate the ground floor shop storage area from the staircase by fire resisting materials of at least one hour." A sketch plan was attached to the specification. It showed all six floors of the house. At or towards the rear end of the corridor on the ground floor was a continuous line, with the marking "-60-" which meant a wall with at least one hour's fire resistance, which would block the access way through the hall to the rear area.
19. The notice informed Mr Burt of his right of appeal and the possible grounds of appeal. It told him that if he did not comply with the notice, the Council might do the work itself and charge him the cost, and that he committed an offence if he wilfully failed to comply with the notice.
20. Mrs Jones accepted that she received a copy of the section 352 notice, specification and the plans of the fifth floor, which contained Flat 10A, but not of the ground floor. I assume that this was sent on to her by the Council pursuant to its duty under section 352(3) to "inform any … person who is to their knowledge [a] lessee or [an] occupier … of the house of the fact that the notice has been served." Mr Darton, for Mrs Jones, argued that this provision related only to a lessee or occupier "of the house" and did not add "or any part of the house", but it would suit the purpose of the provision better if it was to include a lessee or occupier of any part of the house, and section 377(1)(b) can only make sense if "another person having an estate or interest in the premises" includes any person having an estate or interest in any part of the premises. As I read the judge's judgment he found, on balance of probabilities, that Mrs Jones was sent the plans of all floors, but he also found that as a reasonable lessee she would not have known from the documentation that the access to the rear area was going to be blocked off; she would have reacted had she realised this; but the documents did not make this clear to the layman. It was not argued that the notice was invalid, as against Mr Burt, because lessees were not properly informed of the extent of the specified works.
21. Mr Burt did not help matters, since his letter of 4 November 1994 to Mrs Jones and the other lessees which the judge found, enclosed the fire officer's specification, but not the plans, did not draw their attention to the fact that the easement granted to them under the lease would cease to be exercisable. Mr Burt told the judge that he wrote to the lessees in January 1995, referring to an estimate for doing the works according to an enclosed specification, which he proposed to accept, but upon which he invited comments. That specification made it clear that the hallway would be blocked off, but the judge found that Mr Burt did not send that specification to the lessees, and Mrs Jones in particular. Mr Burt did not inform the lessees, including Mrs Jones, that the access would be blocked off.
22. Mr Burt did not inform the fire officer or the council that building a fire-screen wall across the corridor would prevent the use by the lessees of their easement of access to the rear area. He did not appeal against the notice. He built the wall in accordance with the notice and specifications, in 1995, making access to the rear area by the lessees impossible, save down the fire escape, and the judge therefore found that the construction of the wall had completely obstructed the right of access to the rear area by Mrs Jones for the benefit of Flat 10A since 1995.
23. There was an issue as to when the use of the rear area to store rubbish bags, pending putting them out at the front, weekly, ceased. Mr Burt told the judge it stopped in 1989. Mrs Jones said it continued until 1995 when the wall was built, and the judge found it probable that some use of the rear area was made until the wall was built.
24. The judge found that Mrs Jones was unaware that the access had been blocked off until she moved back into Flat 10A in September 2002, and that she could not reasonably have been aware of it until then. Mr Burt made no serious effort to tell her, which as a managing agent he should have done, and the judge was satisfied that this was deliberate on his part as he wished to down-play the effect of the works so as to avoid the fuss which would inevitably have been made by Mrs Jones if he told her that the access would be blocked off. At the time of the works Mr Burt was in occupation of both shops and it was to his advantage to have the access blocked off. That might have been part of his motive for not informing Mrs Jones, but the judge made no finding about that; it was more likely that the prime motive was to avoid another argument with Mrs Jones until the matter was a fait accompli.
25. Following the construction of the wall, the area between the wall and rear door was incorporated into the west shop. After Mrs Jones moved back into Flat 10A in January 2003, she discussed with Mr Burt the storage of rubbish bags which tended to accumulate in common parts of the building. Mr Burt was not interested and Mrs Jones issued proceedings against him on 20 August 2003, seeking a declaration of her right of access to the rear area and an injunction to allow access.
26. By then, on 24 June 2003, Mr Burt had granted a lease of the west shop to his daughter, Mrs Walker, for a term of fifteen years from 1 April 2003. The demise incorporated the whole of the hallway blocked off by the wall built in 1995. By 17 December 2003, Mr Cleanthi was registered as freeholder of the building subject to the lease of various of the flats, including Flat 10A. He had been the leaseholder of three flats in the building since July 1997, and his purchase of the freehold was through the enfranchisement procedure and with the support of the majority of the leaseholders, including Mrs Jones, and (presumably in anticipation of his becoming freeholder) he was substituted for Mr Burt as defendant to Mrs Jones' claim on 15 October 2003. Thereafter, Mr Cleanthi defended Mrs Jones' action.
27. Mr Cleanthi told the judge that he knew about Mrs Jones' claim when he purchased the freehold; he was well aware of the terms of the leases, as a lessee himself, and knew that she was claiming that the easement continued.
28. A single joint expert, Mr C.S. Todd, was appointed to give expert evidence about the requirement of the notice. He concluded:

"1. The form of words in the s.352 notice required the erection of a wall in the position in which it had been erected.

2. It would not be appropriate for the local authority to relax the normal requirement for fire-resisting construction between the retail and residential premises."

On balance, he concluded that reinstatement of the refuse area by putting a fire-resistant door in the wall, which would provide access from the hallway to the rear area, would result in fire precautions being inadequate. It is clear that he took into account a number of things. In particular, that, if the door was put in the wall, it would be necessary to put an imperforate barrier between the west shop and the hall on the other wall. This would block the only alternative means of escape from the shop otherwise than through the front door and would not be acceptable on fire safety grounds. He concluded:

"3. On balance, the reinstatement of the refuse area would result in inadequate fire precautions because of the hazard to the external fire escape. I therefore find that the s352 notice required the lessor to construct a wall across the hallway in its current position."

The judge concluded that that was clear from the plan, at least as a matter of law, if not to the layman.

29. The judge took note of correspondence with Brighton and Hove City Council, and in particular to a letter dated 22 June 2004 in which the council put forward two proposals for the future storage of rubbish. These proposals were not set in stone but, "A basis for further discussion." The council pointed out that the guidance issued in May 1992 advised a 60 minute imperforate construction. Nevertheless, the first proposal did suggest a means of access to the rear area which would leave the west shop with access both to the fire escape and the store behind the east shop. The proposal was dependent upon careful management.
30. It was common ground before the judge that the lease granted Mrs Jones an easement to use the rear area to store rubbish and a right of access over the hallway to get to the rear area. The first issue was whether the easement had been extinguished by statute, on the basis that its continuance was inconsistent with the carrying out of the works required by the section 352 notice and carried out under statutory powers. The judge decided that, having regard to Mr Todd's opinion, the section 352 notice put the lessor, Mr Burt, under a statutory obligation to build the wall, thereby making it inevitable that the easement would be obstructed absolutely. He held that, applying Yarmouth Corporation v. Simmonds (1878) 10 Ch.D. 518, relied upon by Mr Weekes for Mr Cleanthi, the easement of access from the hallway to the rear area had been extinguished.
31. It followed that it was not necessary to consider the other issues of law which had been raised, but the judge noted that there would have been a problem with any injunction reinstating the easement, because to remove the wall would affect Mrs Walker's lease of the west shop, yet Mrs Walker had not been made a party to the proceedings. This problem had led Mr Darton to seek a declaration, only, that Mrs Jones' rights had been unlawfully interfered with. The judge also indicated that in view of his finding that Mrs Jones had been unaware of the obstruction until she took possession of the flat in the autumn of 2002, and had made her position clear to Mr Cleanthi before he purchased the freehold, he would not have decided that the claim to an injunction against him was barred by laches. One might wonder at that, because if the right of access to the rear area to deposit rubbish was important enough to Mrs Jones to justify these proceedings, one might have expected her to have heard of its obstruction from her student sub-tenants or to have noticed it upon the visits she might have been expected to make to the premises between 1995 and the Autumn 2002 or January 2003; but that was the judge's view.
32. The first question on the appeal was the decisive question before the judge, and it is convenient to set out the argument put on behalf of Mr Cleanthi before turning to the grounds of appeal.
33. Mr Fancourt QC and Mr Weekes relied upon Yarmouth Corporation v. Simmonds and Emsley v. North Eastern Railway Company [1896] 1 Ch 418. In Yarmouth Corporation v. Simmons the Plaintiff Corporation had constructed a pier pursuant to an order made under an Act of Parliament. The pier, when constructed, was physically inconsistent with the existence of an alleged public right of access to the sea-shore from a street with which the pier was connected in that the corporation refused to allow any persons to pass from pier to beach, or beach to pier, except upon payment of a toll. The Defendants removed the gates which prevented free access and threatened to do more, and the corporation sought an injunction to restrain them from removing or disturbing any portion of the pier. Granting the injunction, and awarding nominal damages, Fry J. said, at pages 526 and 527:

" … has the right been taken away by the statutory powers conferred upon the Plaintiffs? I am of the opinion that it has been so taken away … The result of the construction of the pier was … that … there was a physical impossibility in the persons who had exercised the right continuing to exercise it in the manner in which they had previously done. The exercise of the right and the existence of the pier were absolutely inconsistent … It appears to me … that the provisional order, confirmed as it is by Act of Parliament has by necessary implication deprived the public of this alleged right, if it ever existed … it is said that an Act of Parliament cannot take away a public right of way except by express words. For that proposition no authority has been cited, and, in my opinion, it is not maintainable. I think that, when the Legislature clearly and distinctly authorise the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right."

34. In Emsley v. North Eastern Railway Co. [1896] 1 Ch 418 it was held that the plaintiff whose ancient lights were obstructed by works carried out by the defendant company under statutory powers had no common law remedy by action; his remedy was to obtain statutory compensation.
35. Halsbury's Laws, 4^th Edition, Vol.16(2), para 143, quotes Yarmouth Corporation and Emsley as authority for the proposition that:

"The extinguishment of an easement by Act of Parliament may be affected … indirectly as an implied provision; or it may arise as the indirect consequence of the Act by the exercise of statutory powers bestowed by it. Where the continuance of an easement is inconsistent with the carrying out of any works under statutory powers the result is that an extinguishment of the easement by implication occurs."

36. Gale on Easements (17^th Edition), paragraph 12-08, referring to Yarmouth Corporation, states that extinguishment of an easement "may … result by necessary implication from a statute. Thus where the legislature distinctly authorises the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone."
37. In this case, it was argued, the court is concerned with an Act which subjects houses in multiple occupation to provisions for general fitness for human habitation, but more particularly in Part XI imposes standards directed to the fitness of the house for its actual, total number of individual occupants or households, with sanitary apparatus and adequate fire precautions chief among them. So section 352 and a number of other sections in the Act give power to local housing authority to take effective steps to maintain standards, including safety standards, which may override proprietary rights in various ways. A works notice under section 352 has a proprietary effect as a local land charge: see section 352(5A). Its service is a serious step: see R (Dewa) v. Westminster City Council [2002] EWHC 320 (Admin) at para 12. It is not a ground of appeal that the works specified in the notice will interfere with proprietary rights of owners or lessees. A notice, once served, may be withdrawn, varied or quashed in various ways and circumstances (see, for instance, section 352(5) and 353(4)), but if it is not, and particularly if there is no successful appeal against the notice, there is a statutory obligation to carry out the works which are permanent, and the authority cannot serve another similar works notice within five years unless there is a change of circumstances: see section 352(7). Where the continuation of an easement is physically inconsistent with the permanent works required to be carried out the statute must intend that the easement be extinguished. Otherwise the owner of the dominant tenement could exercise the remedy of self-help to remove the obstruction. The decisions in Yarmouth and Emsley supported this reasoning, if support was required, and the judge's decision was correct.
38. Alternatively, it was argued that if the easement survived as a property right, the carrying out of the works by Mr Burt was not actionable because where work that would otherwise amount to a nuisance is carried out pursuant to a statutory duty there is no liability in the absence of negligence: see Buckley's The Law of Nuisance (2^nd Edition) pages 102 to 103, and Department of Transport v. North West Water Authority [1984] 1 A.C. 336, at 344A-E and 359E to 360A. Nor, therefore, were the works, or the presence of the wall, actionable against Mr Cleanthi, although there had been no need for the judge to decide this.
39. There were two main limbs to Mr Darton's argument in support of the appeal: first, that the Act did not give an express power to Mr Burt to build the wall, and that in the absence of such a power the easement could not be extinguished; second, that the right to pass through the hallway and into the rear area, and there to store refuse, was a contractual, covenanted right, unaffected by, and not frustrated by, any works done under the Act.
40. Mr Darton argued that the service of a notice under section 352 of the Act, and the execution of works pursuant to the notice, is not comparable with the principle in Yarmouth Corporation v. Simmons as expressed in Halsbury (and Gale) as it does not vest any statutory power to comply with the notice. "The judge failed to observe the important distinction between a statutory power and a statutory obligation." A court should not construe a statute as interfering with a person's rights without compensation unless it is obliged so to construe it: see Bond v. Nottingham Corporation (1940) 1 Ch.429 CA, at 435. There is no provision for compensation in Part XI of the Act. Moreover, the notice under section 352 did not clearly and distinctly authorise the doing of something which was physically inconsistent with an existing right since the notice was subject to, and "could have been fulfilled by", a right of appeal which Mr Burt could have exercised successfully, and should have exercised with a view to a fire door being built at the end of the hallway, rather than a wall, or with a view to the wall being built in a position which did not bar access to the rear area. The Act assumes that recipients of notices will appeal if the required works exceed their contractual or proprietary rights over the building concerned. The notice was also subject to Mr Burt's right to make an application to the County Court under section 377. In any event, there was no compulsion on Mr Burt to build the wall, because he would not have "wilfully" failed to execute the works, for the purposes of section 376(1), if he refused to do them on the basis that he had no contractual right to do them. Moreover, the obstruction of access to the rear area was not permanent, since the Act or its requirements might be amended or repealed during the term of Mrs Jones' lease, or some other circumstance might arise, in which the easement might be exercised.
41. I cannot accept these arguments. In my judgment a statutory obligation to carry out works necessarily involves a statutory power to do them, and in any event a statutory obligation is sufficient for the reasoning and principle in Yarmouth Corporation to apply, at least where the easement is a public right. The statute did not impose any obligation on Mr Burt to appeal, nor can I see how his landlord to tenant relationship with Mrs Jones, including the relevant easement of access to and use of the rear area, imposed any obligation to appeal. In the light of Mr Todd's evidence, which the judge accepted, it seems unlikely that any appeal would have succeeded, but I cannot see how the possibility of a successful appeal can impose an obligation on a landlord to appeal, presumably at his own expense, in an attempt to preserve an easement in favour of his tenant, at least in the context of the provisions of this Act. Section 377 only applies where another person having an estate or interest in the premises refuses to give a consent required to enable the works to be performed. Such a situation is most likely to arise where the landlord upon whom a notice has been served requires a tenant's consent to enter a flat where the works specified in the notice are to be executed. I do not consider that one can infer from that provision an obligation upon a landlord to seek the consent of a tenant who has the benefit of an easement to common parts, which will be obstructed by the works specified in the notice, before the notice can be effective. It is certainly not a necessary inference from the existence of section 377 and there is nothing in the wording itself to lead to such an inference. In my judgment all that was required for Mr Burt "wilfully" to fail to comply with the notice was that he should deliberately not execute the specified works, for whatever reason, within such reasonable time as was specified in the effective notice, that is to say the notice which had not in fact been successfully appealed. See Archbold, Criminal Pleading, Evidence and Practice, 2006 Edn, paragraphs 17-47 and 48. It is not surprising that Parliament did not consider compensation appropriate for the expropriation of rights which, in a housing authority's view, conflicted with the interests and safety of the occupants of the house in question.
42. I will return later to the question of the permanence of the obstruction of the easement.
43. It follows, in my judgment, that Mr Burt was under a statutory duty to build the wall, and had statutory power to build it, and that it was physically inconsistent with Mrs Jones' right of access to the rear area. What are the consequences of that conclusion, so far as the continuance of her right is concerned, and is it material that her right was created by a covenant, a contract in the original lease made between Hereford Dwellings Developments Limited, Mr Burt's and Mr Cleanthi's predecessors as freeholder of 41 King's Road, and Abdel Wahib Burawi, Mrs Jones' predecessor as lessee of Flat 10A?
44. Mr Darton stressed that the easement in Yarmouth Corporation was a public right of way, and in Emsley the court was concerned with ancient lights. In neither case was the court concerned with a covenant, or contract, between lessor and lessee. He referred to two cases where the lessee's right arose by contract, or covenant, in a lease.
45. In Newby v. Sharpe (1878) 8 Ch.D. 39 the defendant let the basement of a store to the plaintiff with the right to store cartridges and a covenant to keep the premises in proper condition for the storage of cartridges, and a covenant for quiet enjoyment. Other parts of the store were let to others for storing gunpowder. The Explosives Act 1875 soon afterwards made it illegal to store cartridges and gunpowder in the same building. The defendant removed the plaintiff's cartridges and stated that if the plaintiff stored cartridges in the building, he, the defendant, must give notice to the authorities, to protect himself. Fry J. held that there had been an eviction, but the Court of Appeal held that there had been no eviction; nor had there been any breach of covenant. There had been "a trivial act of trespass." However, that conclusion was consistent with the defendant having no power to enter the plaintiff's basement, and I cannot see it runs any way contrary to Yarmouth v. Simmonds; nor, like the judge, do I consider that it assists Mrs Jones in her situation.
46. In Budd-Scott v. Daniel [1902] 2 KB 351 the plaintiff let a furnished house to the defendant for a year. At the date of the agreement the plaintiff was under a statutory obligation to paint the outside of the house during that year. In default, the statutory authority was empowered to do the work. The plaintiff had forgotten that the year of the lease was the year of the painting. She did the painting and the defendant and her family had to leave the house for about a fortnight. The defendant obtained judgment for damages on her counterclaim for breach of an implied covenant of quiet enjoyment. But in that case the statutory obligation did not assist the lessor because it was in existence before she let the house and she might have protected herself by the terms of the tenancy when it was granted. That is a far cry from the present case.
47. Mr Darton further argued that the judge failed to observe that a party cannot escape its contractual obligations by reference to statute, other than in rare cases where the statute can be said to have frustrated the performance of those obligations, but the references which he gave appear to refer to the frustration of a lease, rather than an individual covenant in a lease. He noted that for a contractual obligation to be discharged by operation of law, it must be shown that performance of the obligation is impossible, and Mr Cleanthi could not satisfy this requirement, again because there might be a successful appeal, the Council might agree to alternative works, or because the Act or its requirements could be amended or repealed. But there had not been and could not be a successful appeal or acceptance of alternative works by the time of the litigation, and no basis for expecting amendment or repeal of the Act was put forward.
48. Mr Darton contended that the conduct of Mr Burt in concealing material facts, the easement or covenant giving a right of access to the rear area, from the Council and Ms Jones, to further his own ends, engineering a fait accompli and taking advantage of this to extend the area of the west shop, debarred him, and therefore Mr Cleanthi, from arguing that the easement, based on a contractual right, had been extinguished. A contracting party cannot rely upon self-induced frustration, that is to say where he has contributed to the event on which he relies to allege frustration. But in this case Mr Burt was simply complying with the statutory notice, in building the wall which obstructed Mrs Jones' access to the rear area, in the interests of safety. It seems to me too far a leap in this case to convert failure to appeal against the notice, "making an election not to appeal", as Mr Darton described it, with uncertain prospects of success, to say the least, into contribution to the statutory obligation to carry out the works which obstructed access to the rear area.
49. Having considered all Mr Darton's arguments, it seems to me to be important to keep in mind that there was no original contract between Mrs Jones on the one hand and Mr Cleanthi, or for that matter Mr Burt, on the other. So there is no question, in any event, of Mr Burt's action, or failure to act by appealing, frustrating a contract he had made, and, even more so, there is no question of Mr Cleanthi frustrating a contract he had made. If there has been an obligation upon Mr Cleanthi at all at the time when he was substituted as defendant to Mrs Jones' claim and since then, it must be because the obligation to allow access to refuse bins in the rear area was and is a burden which runs with the reversion and affects the assign of the reversion, namely Mr Cleanthi, for the benefit of the assign of the lease of Flat 10A, namely Mrs Jones: see, for instance, Manchester, Sheffield and Lincolnshire Railway Company v. Anderson [1898] 2 Ch.394, per Chitty L.J. at page 402.
50. In this respect the obligation under the lease is, potentially at least, different from the public right of way or ancient lights in the cases of Yarmouth Corporation and Emsley. Those rights arose by what I might describe as "usage", and so it is easy to understand how they might be extinguished by work done under statutory powers or in compliance with a statutory duty, which is inconsistent with the continuance or survival of the right. It is not so easy to see why a covenant which runs with the land is necessarily extinguished simply because it is presently impossible to comply with the covenant because of work which the landlord for the time being was obliged by statute to effect, and because of the present state of the premises as a result of the work, in this case the building of the wall. In such circumstances, the lack of current practical use of the easement may be a far cry from extinguishment, and the fair and sensible test seems to me to be whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant. The test of whether that has occurred must be a question of fact and degree in the particular circumstances of each case. This approach is supported by Huckvale and another v. Aegean Hotels Ltd (1989) 58 P. & C.R. 163, and particularly Nourse L.J. at pages 168 and 170, and Chitty on Contracts (29^th Edn) Vol.1, paragraphs 23-053.
51. In the circumstances of this case, in my judgment, there is no longer any practical possibility of the easement in question benefiting Flat 10A. It is true that nearly seventy-four years remain on the lease of the flat; and that the wall which obstructs the use of the easement and the associated alterations to the ground floor of the house are but ten years old, and that the lease of the enlarged west shop to Mrs Walker has less than twelve years to run. However, it seems to me that there is no ground to suppose that, now the alterations have been made, they will ever be reversed to allow what was always the limited benefit of lessees of the flats depositing their rubbish at the rear of the property.
52. In all these circumstances and for all these reasons I hold that the easement depending upon the covenant in Mrs Jones' lease has been extinguished, and Mrs Jones' appeal must, therefore, be dismissed.
53. Had I reached a different view and held that the easement had not been extinguished, I would have held that Mrs Jones has no present remedy in nuisance, for obstruction of the easement, since there is no liability for work which might otherwise amount to a nuisance, even if it could be shown that it had been adopted by Mr Cleanthi, since the work in question was carried out pursuant to a statutory duty: see paragraph 37 above. Nor would there be a remedy for breach of covenant or derogation of grant, whether or not clause 3 and paragraph 8 of the Third Schedule to the lease saved the lessee: see Manchester etc Railway Co. at pages 401 and 403, referring to the lack of remedy for breach of covenant where the acts in question were authorised by Act of Parliament. The circumstances of this case would not, in my judgment, justify a mere declaration as to the continued existence of the covenant, but without other remedy