Heronslea (Mill Hill) Ltd. v Kwik-Fit Properties Ltd.

A contractual right to enter premises to make “surveys or drawings” must be construed objectively, in its immediate and wider commercial context. Dictionary definitions may assist, but cannot determine the meaning in isolation. The expression did not authorise intrusive environmental investigation involving boreholes and soil samples where the lease contemplated surveys of the land and buildings. A construction substantially undermining quiet enjoyment requires clear contractual language. The landlord’s motive is irrelevant to the construction question.

The landlord appealed against a County Court declaration that it could not enter commercial premises under paragraph 13.1.2 of the lease to conduct an environmental survey involving 14 boreholes and the taking of samples. The premises had formerly been a petrol station, and the lease contained detailed provisions concerning environmental matters, hazardous materials, repair, yielding up and quiet enjoyment.

The central issue was whether the contractual right to enter for the purpose of making “surveys or drawings of the Premises” extended to intrusive investigation beneath the surface.

1. Appeal dismissed. The County Court judge was not plainly wrong in construing paragraph 13.1.2 as excluding the proposed drilling and sampling.
2. Contractual language is construed by asking what it would convey to a reasonable person with the background knowledge reasonably available to the parties. The commercial context must be considered, and the court should resist technical or literal interpretations. Dictionary definitions may be used as an aid, but they are insufficient without contextual analysis. These principles were drawn from Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896 and the authorities discussed there and in Crystal Palace FC (2000) Ltd v Paterson [2005] EWCA Civ.
3. The immediate wording of paragraph 13.1.2, including the reference to entering “on” the premises and the adjoining words “surveys or drawings”, indicated surveys of the land and buildings, rather than intrusive investigation beneath the premises. The lease’s separate treatment of environmental matters and material placed “under” the premises reinforced that construction.
4. The lease’s environmental provisions did not enlarge the entry right. Its scheme placed relevant investigation and environmental responsibility principally on the tenant, particularly on determination of the lease. The right to quiet enjoyment was also material. A construction permitting geological or similarly intrusive surveys, with potentially substantial disruption, would significantly impair that right and would require clearer language.
5. The landlord’s bona fide motive did not affect the construction. The handbook material relied upon did not assist, since the question was whether the proposed activity was a survey within paragraph 13.1.2, not whether it could generally be described as an environmental survey. The declaration below therefore stood.

• High Court (Queen’s Bench Division): Mrs Justice Sharp dismissed the landlord’s appeal from the order and declaration made by His Honour Judge Copley in the Willesden County Court.