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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bellow Properties Ltd v Master Fellows & Scholars Of College Of Holy & Undivided Trinity Within Town & University Of Cambridge (Trinity College) [2001] EWCA Civ 1386 (31 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1386.html Cite as: [2001] EWCA Civ 1386, [2002] 1 P & CR DG6 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE RATTEE)
Strand London WC2 Tuesday, 31 July 2001 |
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B e f o r e :
LORD JUSTICE MUMMERY
SIR MARTIN NOURSE
____________________
BELLOW PROPERTIES LTD | ||
Claimant/Respondent | ||
- v - | ||
THE MASTER FELLOWS AND SCHOLARS | ||
OF THE COLLEGE OF THE HOLY AND UNDIVIDED TRINITY | ||
WITHIN THE TOWN AND UNIVERSITY OF CAMBRIDGE | ||
(TRINITY COLLEGE) | ||
Defendant/Appellant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 404 1400
Official Shorthand Writers to the Court)
MR TIMOTHY MORSHEAD (Instructed by Porter Crossick, 8A-9A Kilburn Bridge, London, NW6 6HT)
appeared on behalf of the Respondent
____________________
Crown Copyright ©
"The Lessees shall in default of agreement between the parties pay (1) during the period between the sixteenth day of June 1998 and the fifteenth day of June 2026 a yearly ground rent which shall be determined in accordance with the following formula (that is to say) such rent shall be the yearly ground rent (but not less than One Thousand and Six Hundred and Fifty Pounds) at which the demised premises alone excluding any buildings or other erections at any time thereon might reasonably be let without the payment of any premium in the open market on the sixteenth day of June 1998 at a ground rent with vacant possession and as a cleared site on the same terms (except as to the amount of the rent) and subject to the same incidents in all respects including a covenant to erect a building in accordance with the plans which have heretofore been approved by the Corporation as are contained in this present Lease..."
" (2) THAT the layout of the demised premises and the plans and elevations of any buildings to be erected thereon and the materials of which the same may be constructed and the drainage thereof shall be subject to the approval of the Corporation which approval shall not be unreasonably withheld.... and no building shall be commenced until planning permission shall have been received and the layout-plans and elevations thereof shall have been approved by the Corporation and the boundaries of the demised premises shall have been set out by the Corporation."
"TO use the demised premises for the erection thereon of permanent buildings at the cost of the Lessees such buildings to conform to the building lines laid down by the Corporation and the plans elevations and layout approved by them under Clause 3 (2) hereof and to be constructed with materials and drainage approved as aforesaid."
"It seems to me that the intention of the parties is very clearly expressed in it. It may be not wholly aptly expressed, in the sense that there is not an entirely happy fit between the reference to the hypothetical lease including all the same incidents as are included in the existing lease on the one hand and to its including a covenant to build in accordance with the plans which had already been approved on the other hand, but the effect of the inclusion of the express words `including a covenant to erect a building in accordance with the plans which have heretofore been approved by the Corporation' seem to me to make inescapable the conclusion that the parties did indeed intend what they said, namely, that the hypothetical tenancy to be assumed on rent review should be one which included a covenant to erect a building in accordance with plans which had been approved prior to the date of the 1970 lease."
"...it is axiomatic that what the court is seeking to identify and declare is the intention of the parties to the lease expressed in that clause. Thus, like all points of construction, the meaning of this rent review clause depends on the particular language used interpreted having regard to the context provided by the whole document and the matrix of the material surrounding circumstances. We recognise therefore that the particular language used will always be of paramount importance. Nonetheless it is proper and only sensible, when construing a rent review clause, to have in mind what normally is the commercial purpose of such a clause."