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Articles | Fri 24th Jul, 2020
Sometimes a judgment blows away the smoke produced by generations of lawyers and leaves the legal landscape a little bit clearer. The judgment of Lewison LJ in Rees v Earl of Plymouth is one of those occasions.
The case concerned a landlord who wished to enter farmland for the purposes of carrying out surveys, including a bat survey, required to comply with conditions attached to an outline planning permission for a large housing development. The tenant objected to the landlord leaving remote bat detectors and surveyors’ marking pins on the farm.
Whether the landlord could carry out the surveys depended on the interpretation of reservations in two leases which provided the landlord with rights of entry drafted in general terms. In one lease the reservation permitted, “the Landlord and his Consultant and others authorised by him with or without horses, carriages and other vehicles to enter on any part of the Farm lands and premises at all reasonable times for all reasonable purposes.” In a second lease the right permitted the landlord entry “for the purpose of inspecting the same or for making roads, sewers or drains or for any other purpose connected with his estate.”
One approach to this sort of problem is to ask questions about derogation from grant, the contra proferentem rule and revisit the conundrum about whether the landlord or the tenant, as the grantor of the reservation, is the party who is considered to be proferens.
This had not been the way that HHJ Keyser had looked at the problem and first instance. He explained that:
“the correct position is not that there is a rule of interpretation, as such, that a reservation is construed restrictively against the landlord. Rather, as part of the normal method of construing written instruments, the court will have regard to the entirety of the text and to the main subject matter of the agreement and, in the normal course of things, is likely to suppose that the intention of the parties is to advance the main purpose of the agreement as shown by its subject matter. Thus in the case of a lease, which necessarily grants exclusive possession and the right to quiet enjoyment, the court will naturally be inclined to suppose that qualifications on these rights will emerge clearly from the lease. This is not a matter of applying a special rule that a certain kind of provision must be construed against a particular party. It is simply a matter of applying the normal approach to construction [para 56].”
This approach was endorsed by Lewison LJ who gave the only judgment in the Court of Appeal. In a wide-ranging judgment Lewison LJ explained how decisions relied on as examples of the application of technical rules of interpretation were simply instances of the courts applying the ordinary rules of construction. Each case turned on the application of a commercial and common-sense approach to the words used and the context in which the parties used them. Even the case of Wheeldon v Burrows (1879) 12 Ch D 31 which has given rise to “rules” by which one can imply a grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed was said by Lewison LJ to be, “little more than the application of ordinary principles under which terms are implied into contracts.” [para 31]
So where did this leave the landlord and his wish to carry out a bat survey? The extent of the right of entry in each case is a question of fact and degree to be set against the impact the landlord’s exercise of the right would have on the tenant’s quiet enjoyment of the land [paras 50 62, 65 and 71]. What was permitted was what was reasonable but there must be no material disturbance to the tenant or material damage to the land [para 78]. The landlord’s bat detectors could be left on the farm.
Common sense was not restricted to the interpretation of the leases though. In response to the tenant’s second ground of appeal viz that there was inadequate evidence to support the judge’s view that the installation of remote bat survey boxes would be permitted by the rights of entry, Lewison LJ was even prepared to endorse a limited amount of judicial internet searching. He said:
“there was material before the judge that showed that the bat detectors were a proprietary product called Anabat, and even a cursory search of the internet will find the proprietor’s website with a product description and picture. A judge may take judicial notice of matters which are capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy: Scott v The Attorney General  UKPC 15 at  – .” [para 81].
Whether this opens those floodgates to reports of judicial Googling remains to be seen.