Rees & Anor v Windsor-Clive & Ors

An express reservation of a landlord’s right of entry is construed by ordinary contractual principles. The court must read the lease as a whole and give practical effect to both the tenant’s exclusive possession and the reserved right. The principle against derogation from grant does not impose a rule that rights of entry receive their narrowest possible meaning. It militates against an interpretation causing substantial interference with the tenant’s use and enjoyment or frustrating the purpose of the letting.

A right to enter for a reasonable purpose permits acts reasonably necessary to achieve that purpose. It does not extend merely to what is convenient or desirable. The permissibility of a survey, monitoring device or other activity depends on its purpose, nature, position, effect and degree of intrusion.

The respondents were freeholders of a 240-acre farm held by the first appellant under tenancy agreements made in 1965 and 1968. The farm had outline planning permission for major development. To meet planning conditions, the respondents wished to undertake ecological and other surveys, including the temporary installation of remote bat detectors and the placing of survey reference points.

HHJ Keyser QC held that the express rights of entry permitted some activities but not intrusive works. His decision is reported at [2019] EWHC 1008 (Ch), [2019] 4 WLR 74. The tenant appealed, principally contending that rights of entry had to be strictly construed and did not permit leaving equipment after surveyors departed. The central issue was the proper construction and practical scope of the contractual rights of entry.

1. Appeal dismissed. The judge had adopted the correct approach to construction. A tenancy agreement, including a reservation of a right of entry, is construed by the ordinary principles applicable to contracts. The court must read the agreement as a whole, in its factual and commercial context, and seek a sensible operation of the right.

2. The principle against derogation from grant did not require the court to give the rights of entry their narrowest possible meaning. The tenant’s grant was exclusive possession on the terms of the tenancy, including its express reservations. A landlord acting within those terms did not thereby derogate from grant. The principle nevertheless militated against an interpretation authorising substantial or serious interference with the tenant’s use and enjoyment, or frustration of the purpose of the letting.

3. The 1965 right to enter at reasonable times for all reasonable purposes was not divisible into rigid questions about act, time, purpose and manner. If the stated purpose was reasonable, the right included what was reasonably necessary to achieve it, but not what was merely convenient or desirable. Conversely, a highly intrusive activity might make the asserted purpose unreasonable. Whether an activity was permitted was a question of fact and degree.

4. Ecological surveys undertaken to meet planning obligations were a reasonable purpose. The right was not confined to entering, inspecting and immediately removing every item brought onto the farm. It could permit temporary reference markers and monitoring equipment ancillary to inspection. On the available material, temporary Anabat detectors strapped to trees were within the 1965 right; trees were excepted from that demise. Under the 1968 inspection right, the activity must not cause material disturbance to the tenant or material damage to the premises. The same fact-and-degree assessment applied.

5. The evidential basis was slender but sufficient. The judge could take judicial notice of matters capable of immediate and accurate demonstration from readily accessible sources of indisputable accuracy. In any event, if the detectors were as described in the respondents’ skeleton argument, their temporary installation on trees fell within the rights of entry and inspection.

• Court of Appeal (Civil Division) — dismissed the tenant’s appeal: [2020] EWCA Civ 816.
• High Court of Justice, Business and Property Courts in Wales — HHJ Keyser QC held that the contractual rights of entry allowed some survey activities but excluded others: [2019] EWHC 1008 (Ch); [2019] 4 WLR 74.