Piechnik v Oxford City Council

An express lease covenant requiring access for broad categories of building works may extend beyond the landlord’s repairing obligations. A covenant of quiet enjoyment does not qualify that access covenant where the lease expressly recognises the tenant’s obligation. The Housing Act 1985 provisions concerning access to light and air do not imply a general right of entry to carry out works. A First-tier Tribunal decision on whether works are repairs or improvements in service-charge proceedings does not, without more, bind the parties on unrelated access issues.

The appeal concerned a right-to-buy lease of a flat owned by Dr Piechnik. Oxford City Council sought access to carry out major works. The leaseholder argued that the lease did not permit access for improvements and that earlier First-tier Tribunal decisions concerning service-charge liability bound the parties on the interpretation of the lease.

The County Court held that the lease contained express and implied access rights, including an extended right for works addressing risks to health or personal safety. It also held that the FTT decisions bound the parties only so far as they determined whether particular works were improvements rather than repairs. The appeal concerned the construction of the express access covenant, the alleged statutory implied right, and the effect of the FTT decisions.

The appeal was allowed in part. The County Court was correct on the express access covenant and on the limited effect of the FTT decisions, but wrong to imply an extended right of access for works intended to avoid death or personal injury or remedy a state of affairs injurious to health.

1. The access covenant in paragraph 12 of the Fourth Schedule was broad. It permitted entry for repairing, maintaining, supporting, rebuilding, cleaning, lighting and keeping in good condition parts of the building and its services, and for laying down, maintaining, repairing and testing pipes, wires, cables and associated apparatus. It was not co-extensive with the landlord’s repairing covenant in clause 7.3.
2. The covenant of quiet enjoyment in clause 7.1 did not qualify paragraph 12. The demise was subject to the Fourth Schedule, the tenant had covenanted to observe it, and clause 7.1 itself was conditional on performance of the tenant’s covenants. Reliance on paragraph 12 was therefore not a derogation from grant. Yeoman’s Row Management Ltd v Boentein-Meyrick [2002] EWCA Civ 860 and [2002] 2 EGLR 39 did not assist because that lease and its facts were different.
3. Paragraph 2(1)(b) and paragraph 2(2) of Part I of Schedule 6 to the Housing Act 1985 concern rights to the access of light and air. They do not imply a general right to enter premises to carry out works. The alleged extended right of access therefore did not exist.
4. The parties’ agreement to accept the FTT’s jurisdiction on lease-interpretation issues was made in the context of section 27A service-charge proceedings. It did not create a common assumption that the FTT’s decisions would bind the parties on every issue concerning the lease. The FTT had not determined the landlord’s access rights. The recorder’s answer to Question Two was correct.
5. The trial judge remained responsible for deciding whether individual disputed works fell within the express access covenant or any other valid access right.

• High Court (Queen’s Bench Division): On appeal from the Oxford County Court order of Mr Recorder Berkley QC dated 25 September 2019, the appeal was allowed in part.