Mayor & Commonalty and Citizens of the City of London & Ors v Intercede 1765 Ltd & Anor

A deed restricting building heights must be construed as a whole, including the accompanying drawing and every relevant parameter shown on it. Where the deed requires construction in accordance with the drawing, the restriction is not necessarily a uniform horizontal limit identified by a single measurement. A building line and specified angle may instead permit greater height as a building is set back from the frontage. The court should, where reasonably possible, avoid an interpretation that would make the restriction inconsistent with an existing building constructed when the deed was executed.

The claimants, trustees of the Gresham Trust and proprietors of the Royal Exchange, sought declarations concerning the construction of a 1928 deed regulating building heights between the Royal Exchange and the Lloyds Building at 15 to 22 Cornhill.

The defendants were developing the Lloyds Building and contended that the deed regulated the profile of the building by reference to a building line and a 75-degree angle, rather than imposing an absolute 108 feet 3 inches limit across the site. The claimants sought declarations that the proposed development exceeded the deed’s restriction. The defendants also applied for a stay pending an application to the Lands Tribunal, but that issue became unnecessary once the deed was construed.

1. Construction of the deed. The deed and its drawing had to be construed together. Clauses 1, 2 and 4 required buildings not only to remain within the height indicated by the relevant colour, but also to be erected in accordance with the drawing as a whole. The building line and the 75-degree angle therefore formed part of the height restriction.
2. The deed did not impose a uniform horizontal restriction of 108 feet 3 inches over the whole of the defendants’ site. The drawing’s omission of the site depth, and its inclusion of the building line and angle, were inconsistent with that construction. The angle permitted greater height for parts of the building set back from the frontage.
3. The construction contended for by the defendants was also supported by the fact that the Lloyds Building, constructed after the deed was executed, included towers exceeding 108 feet 3 inches. The court should avoid, where reasonably possible, construing the deed as imposing a restriction inconsistent with the building then being constructed.
4. On the accepted construction, the proposed development did not breach any height restriction imposed by the deed. The questions of injunctive relief and a stay pending the Lands Tribunal application therefore did not arise. The claim was dismissed.