B e f o r e :
THE MASTER OF THE ROLLS (Lord Denning),
LORD JUSTICE PEARSON and
LORD JUSTICE SALMON
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Between:
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WAI MAN WONG
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Plaintiff
Respondent
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-and-
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BEAUMONT PROPERTY TRUST, LIMITED
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Defendants
Appellants
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Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, V.C.2).
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MR. LIONAL BLUNDELL QC. AND M E F CORLEY (instructed by Messrs Wedlake, Letts & Birds) appeared as Counsel for the Appellants
MR. W M HUNTLEY (instructed by Messrs Barry & Blott, Bristol) appeared as Counsel for the Respondent.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OF THE ROLLS: Mr Wai Man Wong is the tenant of a Chinese restaurant in Exeter called the "Chopstick". It is situate underground below Nos 83 and 84, Queen Street, Exeter. He has a kitchen there where he cooks the food. It is so badly ventilated, however, that it is necessary to have an air duct so as to take the used air up to the roof. This duct will have to be fixed on to the back wall of the building which belongs to the landlords. Mr Wong asked the landlords for permission to erect the duct and to fix it on to the back wall, but the landlords refused. Mr Wong now seeks a declaration that he is entitled to erect the duct and fix it on the wall without the landlords' consent. To do this, as it seems to me, he has got to show an easement of necessity. This depends on the circumstances in which the lease was granted.
The lease was made on 25th March 1957. At that time the owner of Nos 83 and 84 Queen Street was a Mr Melhuish. He let the three cellars underneath the building to a Mr Blackaby. Before the lease was executed, it had come to the knowledge of the public health department of the City of Exeter that the cellars were going to be used as a restaurant. So they wrote to Mr Blackaby and told him that it would be necessary to agree on the lay-out of a ventilation system; but the lease was executed before any ventilation system was installed. No doubt all concerned had complete confidence that it could be satisfactorily installed. The lease was for twenty-one years from 25th March 1957 at a rent of £250 a year. Mr Wong covenanted to use the premises as a restaurant, and particularly
"at all times of the year during the usual business hours of the locality to keep the demised premises open as a popular restaurant for carrying on the said business in its several branches including the retial sale of chocolate and sugar confectionery and to use his best endeavours to develop extend and improve the said business."
There was also a specific covenant by Mr Wong about smells and odours. He covenanted
"to control and eliminate all smells and odours caused by the use of the demised premises as a restaurant, to comply with the Health Regulations for the time being in force, so that same shall not become or cause an annoyance or nuisance to the landlord or Mr Wongs and occupiers of adjacent buildings belonging to the landlord."
At that time the Food Hygiene Regulations, 1955, were in force. Regulation 21 provided that
"suitable and sufficient means of ventilation shall be provided in every food room, and suitable and sufficient ventilation shall be maintained there."
The public health inspector of the City of Exeter gave evidence as to what was suitable and sufficient. He said that, in order to comply with these regulations in a restaurant like this, there ought to be an overall change of air twenty times an hour; and in the canopy over the cooking apparatus of sixty changes an hour. The Judge has found that, at the very time when the lease was made, the existing ordinary flue was insufficient. Unfortunately, the parties did not appreciate that this was so. They made efforts to ventilate through the existing flue, but the result was unsatisfactory. Later on, an electric fan was put in but that was unsatisfactory too. Although it was unsatisfactory, however, Mr Blackably carried on a restaurant there. He called it the "Kingfisher" restaurant. He served English food. It was not very profitable. He served only some fifty lunches a day.
At the end of 1961 Mr Wong bought the remainder of the twenty-one years' lease from Mr Blackaby. He paid £600 for it. He had the premises decorated. He changed the name to the "Chopstick" restaurant and he started serving Chinese food. He improved the business greatly. The numbers were up to 200 to 250 lunches a day, sixty per cent of them being with Chinese food and forty per cent with English food. At about this time, or a month or two later, on the floor above came in the Midland Bank. The Midland Bank and its staff took objection to the smell and odours which were coming from the restaurant. They reported it to the public health authorities. The public health inspector came and inspected the premises. He said there must be a proper ventilation system. Whereupon Mr Wong called in ventilation experts. All agree that the place cannot be carried on as a restaurant unless a proper ventilation system is put in. There must be a duct to take away the used air and to carry it off with the required frequency. The duct would have to be twenty inches by twenty-two inches across. At first it was suggested that this duct should be carried up inside the building, but the landlord refused his consent. It was next suggested that it should be carried up outside the building and fixed to the wall outside. Mr Wong asked the then landlord Mr Melhuish if he would agree to it and he refused. Then in 1962 Mr Melhuish sold the premises to the present landlords, Beaumont Property Trust, Ltd. Mr Wong asked them for their consent to put up the duct. They too refused.
The whole question in the case now is: Is Mr Wong entitled to put up this duct outside the building without the landlords' consent? The Midland Bank readily consent because they dislike very much the odours and smells which come up. The public health inspector says it is absolutely essential, if the business is to be carried on at all, that this ventilation duct should be put in. But the landlords object. It is difficult to see any good reason for the landlords' refusal. The Judge has found that the duct would hardly make any appreciable difference to the landlords at all. Of course, it would be unsightly for a big duct to be put up on the back wall; but the back of these premises is unsightly anyway. It faces a back street and is hardly seen by anyone. The Judge said:
"There will be a trifling disturbance with the surface of the landlords' property; there will be no disturbance of light; and on that wall and in that street the duct will form only a lesser eyesore. The cost of installation and its maintenance will be borne by the plaintiff and the whole scheme will cost this plaintiff £837. The scheme is approved by the public health inspector and by the Midland Bank. The public health inspector insists that it be carried out to comply with the regulations."
The question is: Has Mr Wong a right to put up this duct without the landlords' consent? If he is to have any right at all, it must be by way of easement and not merely by way of implied contract. He is not the original lessee, nor are the defendants the original lessors. Each is a successor in title. As between them, a right of this kind, if it exists at all, must be by way of an easement. In particular, an easement of necessity. The law on the matter was stated by Lord Parker of Waddington in Pwllbach Colliery Co Ltd v Woodman [1915] Appeal Cases 634 at p.646, where he said, omitting immaterial words:
"The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted … is to be used … But it is essential for this purpose that the parties should intend that the subject of the grant … should be used in some definite and particular manner. It is not enough that the subject of the grant … should be intended to be used in a manner which may or may not involve this definite and particular use."
That is the principle which underlies all easements of necessity. If you go back to Rolle's Abridgment you will find it stated in this way:
"If I have a field inclosed by my own land on all sides, and I alien this close to another, he shall have a way to this close over my land, as incident to the grant; for otherwise he cannot have any benefit by the grant."
I would apply those principles here. Here was the grant of a lease to the lessee for the very purpose of carrying on a restaurant business. It was to be a popular restaurant, and it was to be developed and extended. There was a covenant not to cause any nuisance; and to control and eliminate all smells; and to comply with the Food Hygiene Regulations. That was "a definite and particular manner" in which the business had to be conducted. It could not be carried on in that manner at all unless a ventilation system was installed by a duct of this kind. In these circumstances it seems to me that, if the business is to be carried on at all - if, in the words of Rolle's Abridgment, the lessee is to "have any benefit by the grant" at all - he must of necessity be able to put a ventilation duct up the wall. It may be that in Mr Blackaby's time it would not have needed such a large duct as is now needed in Mr Wong's time; but nevertheless a duct of some kind would have had to be put up the wall. Mr Wong may need a bigger one. That does not matter. A man who has a right to an easement can use it in any proper way, so long as he does not substantially increase the burden on the servient tenement. In this case a bigger duct will not substantially increase the burden.
There is one point in which this case goes further than the earlier cases which have been cited. It is this. It was not realised by the parties, at the time of the lease, that this duct would be necessary. But it was in fact necessary from the very beginning. That seems to me sufficient to bring the principle into play. In order to use this place as a restaurant, there must be implied an easement, by the necessity of the case, to carry a duct up this wall. The County Court Judge so held. He granted a declaration. I agree with him.
In the course of the argument Mr Blundell for the landlords has raised a question whether the county court had any jurisdiction to deal with the matter. This point was not raised in the county court. It was not raised in the notice of appeal to this court. But I suppose that, as it goes to jurisdiction, we ought to consider it. Nevertheless, having considered it, I think that there is nothing in it. The particulars of claim claimed a declaration and damages limited to £400. It raised a question of the title to a hereditament—an easement. The court had jurisdiction to deal with it so long as the rateable value of neither of the properties was more than £400 a year, see Section 51 of the County Courts Act, 1959. No evidence was given in the case about the rateable value; and we must assume that in neither property did it exceed £400. It was a genuine claim, not only as to a declaration, but also as to damages. It is the nature of the claim which founds the jurisdiction, not the result of the case. There was sufficient jurisdiction in the court to deal with the matter and equally in this court.
I need only mention one further point. In order to make this duct it will be necessary for Mr Wong to cut through one of the walls of the cellar. He will have to get consent for this from the landlords under one of the covenants in the lease. Under the statutee consent is not to be unreasonably withheld. In the circumstances it is quite clear that it could not be reasonably withheld. So I do not think that any trouble should arise on
I therefore find myself in agreement with the decision of the County Court Judge and I would dismiss the appeal.
LORD JUSTICE PEARSON: I agree. This case affords a good example of an easement of necessity. It is important to take into account the relevant covenants in the lease, namely, Nos 11, 12 and 19. No 11 has been read by my Lord . First of all, I understand the expression "popular restaurant" not as meaning the opposite of an unpopular restaurant, but as meaning one at which food is sold at inexpensive prices, and it is contrasted with what might be called an exclusive or luxurious restaurant. Having that description, it requires that food should be sold at inexpensive prices and that a large number of people should come in order to make it a reasonably paying proposition. That phrase itself implies that a substantial number of customers will come to the restaurant. Secondly, Clause 11 contains a provision that Mr Wong will "use his best endeavours to develop extend and improve the said business". Clause 12 is the usual clause providing that nothing is to be done or suffered on the premises
"which may be or become a nuisance or annoyance or cause damage to the landlord or Mr Wongs or occupiers of other property in the neighbourhood."
Clause 19 is important as showing what was contemplated and provided for by the lease, because it provides that Mr Wong is "to control and eliminate all smells and odours caused by the use of the demised premises as a restaurant", and that must be done, as I read this covenant, so as to comply with two tests: first, "to comply with the Health Regulations for the time being in force" and, secondly, so that the smells and odours "shall not become or cause an annoyance or nuisance to the landlord or Mr Wongs and occupiers of adjacent buildings belonging to the landlord." That provision means that it is expected that smells and odours will be created by the use of these premises as a restaurant, and, therefore, that steps are to be taken to control and eliminate the smells and odours which are expected to be created in that way. Those are the relevant covenants.
Then we have the findings of fact, which are supported by the evidence, that from the beginning the flue was not large enough to perform the functions which have to be performed under Clause 19, which I have read, not large enough to carry up the odours and smells which would be created. There is one finding by the learned Judge that the flue has always been too small and has never been sufficient for the purpose of the restaurant, and there is a further finding later that
"the existing flue was incapable of carrying the extra burdens which would be thrown on it and which would increase with the increase of the business of the restaurant."
The effect of those findings, in conjunction with the provisions of the lease, is this, that those covenants could not be complied with unless Mr Wong were allowed to carry up the cooking smells otherwise than through the flue inside the premises, and therefore he could only comply with the covenants if he was permitted to carry some pipe or duct up the outside back wall of the premises. It was from the beginning necessary that a substantial duct should be provided. I agree that the proposed duct now is somewhat larger. That will not impose any substantial additional burden on the servient tenement. There is, therefore, this choice for the court: either to say that the provisions of the lease cannot be carried out and must remain inoperative or to imply an easement of necessity into the lease. The court should read this lease in such a way that res magis valeat quam pereat, and therefore the right course is to imply an easement of necessity in this case.
With regard to jurisdiction, I agree with what Lord Denning MR has said and have nothing to add.
I agree with the learned Judge's decision in this case, and I agree that the appeal should be dismissed.
LORD JUSTICE SALMON: Whether or not an easement of necessity is here to be implied, seems to me to depend solely on this question: in 1957, at the date when the lease was granted, could the business of a popular restaurant have been lawfully carried on on these premises without some system of ducting, whereby smells and odours were taken from the restaurant up the back of the building to the roof of the premises? The Food Hygiene Regulations then in force provided in effect that any restaurateur would be committing a criminal offence if he failed to provide sufficient and suitable means of ventilation or failed to maintain sufficient ventilation in his restaurant. At the time when the lease was granted, everyone no doubt thought that it would be possible to provide sufficient ventilation by means of the existing internal flue; but in this they were mistaken. The learned Judge has come to the conclusion (and in my view there is evidence to support this finding) that even in 1957 the existing flue was insufficient and some form of ducting from the restaurant to the roof was necessary. This is not a very surprising conclusion when one considers that this restaurant was in a cellar with no windows at all. I should have thought that, if a popular restaurant is in a cellar with no windows, there are bound to be smells (as indeed the lease recognises by Clause 19) and that unless some means are devised of carrying these smells outside and regularly changing the air, it would be impossible at any time, particularly in the height of summer, even in this country, to say that there were sufficient and suitable means of ventilation. Therefore, it seems to me that unless a duct from the cellar to the roof were installed in 1957, it would have been impossible lawfully to carry on the business of a popular restaurant on these premises. It is quite true that although the authorities had been agitating since early days, nothing was done very actively until some years later. This does not, however, mean that the business was being lawfully carried on and that there was suitable ventilation in the meantime. It means merely that the authorities in the exercise of their discretion had decided that as the illegality was only a little one, the circumstances did not then require a prosecution or any further steps to be taken. The fact remains that without the duct, as the County Court Judge has found, the carrying on of the business was illegal. It seems to me to be plain on the authorities that, if a lease is granted which imposes a particular use on the tenant and it is impossible for the tenant so to use the premises legally unless an easement is granted, the law does imply such an easement as of necessity.
I only desire to add this on the point of jurisdiction. Mr Blundell for the landlords has addressed an interesting argument to the court on the basis that the correspondence passing between the parties before action amounted to no more than an amiable discussion between solicitors as to the legal implication in the lease. I do not so read the correspondence. I consider the fair construction to put on the correspondence is this, that on behalf of Mr Wong it is being asserted that he had a legal right to put a ventilation duct up the back of the building from the restaurant to the roof and on behalf of the landlords it is being stated that no such right exists and that the landlords will prevent Mr Wong from erecting such a duct. To my mind, once the owner of the servient tenement says in effect that he will prevent the owner of the dominant tenement from exercising an easement, there is an interference with the easement. I cannot think of a more effective one in a law abiding country. The alternative view is that before an actionable interference with an easement can be proved, the owner of the dominant tenement has perhaps to fight his way on to the servient tenement and try to exercise his right and take the risk that he will be forcibly ejected—in this case take the risk that the ladder will be flung off the wall. I think that is wholly unrealistic. There is ample evidence here that there was an interference with this easement of necessity which gave Mr Wong a claim to some damages. Accordingly the County Court had jurisdiction to entertain the action.
I agree that the appeal should be dismissed.
Order: Appeal dismissed.
Leave to appeal to House of Lords refused.
