Fanfare Properties Ltd & Anor v Grafton Estate No. 2lp (Nominee One) Ltd & Ors

A contractual permission to enter land for installing outward-opening windows does not authorise scaffolding for the demolition and reconstruction of an entire building façade. The court must identify the substance of the permitted activity, rather than accept a contrived description such as a “window system”. Where the proposed works involve a new curtain wall containing windows, non-opening panels and other structural elements, the permission extends only to work genuinely required to install the outward-opening windows. Summary judgment is appropriate where construction and the relevant evidence show that the defendant has no real prospect of defending the claim.

The claimants owned a Mayfair passageway under a 1973 sub-underlease. A 1996 deed granted the adjoining owner permissions, including permission to install outward-opening windows above ground-floor level and to enter the claimants’ land for permitted purposes.

The defendants, successors in title, proposed redevelopment involving removal of the existing façades and construction of new glass façades containing outward-opening windows, non-opening panels and other elements. They intended to erect scaffolding on the claimants’ land. The claimants sought a declaration that the proposed scaffolding would constitute trespass. The central issues were whether the works fell within clause 4.2(c) and whether summary judgment should be granted.

1. Declaration. The declaration served a useful purpose because it resolved a real and current dispute about the defendants’ latest proposed works. The court was not required to advise the parties on every possible future method of construction.
2. Construction of “install”. In its contractual context, “install” meant placing an apparatus or system in an existing surrounding so that it could be used. The expression did not ordinarily describe constructing the surrounding wall or façade itself. Engineering Industrial Training Board v Foster Wheeler [1970] 1 WLR 881 supported that ordinary meaning, although it arose in a different statutory context.
3. Application to the proposed works. The defendants were not merely installing outward-opening windows. They proposed demolishing the rear face of the buildings and constructing a new curtain wall. That wall included outward-opening windows, non-opening glass panels, obscure glass and panels covering structural members. Calling it a “window system” did not alter the substance of the operation.
4. Clause 4.2(c), read with clause 4.2(f), permitted scaffolding required to install outward-opening windows. It did not permit scaffolding to remain throughout the wider demolition and reconstruction operation. Using the permission for that broader purpose would be a colourable use of the contractual right.
5. The court considered that the evidence also strongly suggested that the scaffolding would serve wider protective and site-security purposes. That provided an additional likely objection, but the decision rested on the construction of the permission and the nature of the proposed façade works.
6. The defendants therefore had no real prospect of successfully defending the claim. Summary judgment was granted and the proposed erection and retention of scaffolding would constitute trespass.

First-instance decision. No prior appellate decision is stated in the judgment.