Winwood & Ors v Biffa Waste Services Ltd & Anor

A lease covenant requiring a tenant to apply for and use all reasonable endeavours to obtain planning permission and a site licence for landfill to the highest practicable contours may be limited by its context. Read with the adjoining restoration covenant, it required a variation of the existing restoration-contour condition. It did not impose a continuing obligation to pursue successive permissions or licences to prolong landfill operations. Singular wording is not automatically converted into plural wording by a general singular-and-plural clause; context governs. Previous negotiations and subjective declarations are excluded from the interpretive background, although their exclusion was immaterial to the outcome.

The appeal concerned a 99-year lease of a worked-out gravel pit for landfill operations. The landlords alleged that clause 8(6)(d) required Biffa to make continuing applications for planning permissions and site licences so that landfill could continue for as long as possible. Biffa contended that the clause required only an application to raise the restoration contours under the existing planning permission.

Sir Edward Evans-Lombe, sitting in the Chancery Division, accepted Biffa’s construction and determined the preliminary issues accordingly in [2010] EWHC 242 (Ch). The landlords appealed. The central issue was the proper construction and temporal scope of clause 8(6)(d).

The Court of Appeal unanimously dismissed the appeal. The High Court had reached the correct conclusion, although Lord Justice Rimer adopted a somewhat different route to that conclusion.

1. Clause 8(6)(c) required Biffa to carry out landfill activities so as to achieve restoration in accordance with the existing site licence and planning permission. That provision expressly made the obligation subject to clause 8(6)(d). The reference in clause 8(6)(d) to the highest practicable contours therefore linked it to the existing restoration-contour condition and required an application to vary that condition so as to raise the permitted contours.
2. Read in the context of clause 8(6) and the lease as a whole, clause 8(6)(d) did not impose a continuing obligation to pursue successive permissions or licences to keep landfill operations open. Nothing in its language justified adding such a broad obligation. The reference to a site licence might have been included as a precaution in case a variation was required, but it did not support the landlords’ wider construction.
3. The general provision that singular words included the plural did not require every singular reference to be read as plural. The relevant language had to be construed in context. The context showed that the clause was directed to a single planning permission altering the restoration contours. This approach was consistent with Martin v David Wilson Homes Ltd [2004] 3 EGLR 77.
4. In accordance with Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, and the principles endorsed in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101, previous negotiations and declarations of subjective intention were excluded from the admissible background. The court nevertheless regarded that point as immaterial because the contractual language and objective background independently established the meaning.

The declaration that clause 8(6)(d) could not impose the continuing obligations alleged by the landlords was upheld.

1. Court of Appeal (Civil Division): unanimously dismissed the landlords’ appeal and upheld the construction of clause 8(6)(d).
2. High Court of Justice, Chancery Division: Sir Edward Evans-Lombe, sitting as a judge of the High Court, determined the preliminary issues in favour of Biffa in [2010] EWHC 242 (Ch).