Regent on the River Limited v Nicholas Bishop & Anor

MR JUSTICE RAJAH:

1. This is an appeal against the decision of HHJ Raeside, on 19 February 2025, as to which of the appellant or the respondents is responsible for the repair of glass panels in the respondents' penthouse flat. The question is whether the panels are part of the roof of the building or whether each glass panel is a window. The roof is not part of the demise; it remains owned by the landlord and is covered by the landlord's repairing covenant. Windows are part of the demise and fall within the tenant's repairing covenant. The judge found that it was a roof.

2. A bit of the background is this. Mr and Mrs Bishop, who are the respondents, are the owners of the leasehold interest in 70 Waterman's Quay, which comprises the demised premises. The lease of the demised premises is dated 9 December 1994, and the appellant, Regent on the River, is the landlord under the lease. The site in question comprises three buildings containing 231 flats: Ferryman's Quay which has 51 flats, Waterman's Quay which has 113 flats, and Sailmaker's Court which has 68 flats. The appellant owns the freehold, and the shares of the appellant company are held by 176 of the lessees of the three buildings. The demised premises is on the top floor and is partly covered by a glass structure. The structure comprises 25 panels of glass, of which four are windows in the conventional sense in that they are glass casement windows which can be opened. The 21 panels, excluding the four windows, have been referred to in this case as "the penthouse panels". The penthouse panels were described by the single joint expert, Mr Lovelock, as follows, at para.4.5.1 to 4.5.6: "4.5.1 The main elevation of flat 70 overlooking the river Thames features an unusual, glazed enclosure formed in a rectangular structural bay projecting from the main living area of the flat. The glazed enclosure is a cross between a bay window, a dormer window, a rooflight and a truncated conservatory. It is an unusual hybrid, architectural feature; it is not typical of architecture associated with residential developments and is not a particular form of construction/construction feature to which the property design and construction industry has attached a specific construction term. ..... 4.5.4 The rectangular bay features vertical, low-level glazing panels to the main and side elevations of the bay. On top of the vertical glazing panels, there are three interconnecting glazed roof slopes, which results in the glass roof of the bay having hipped end echoing the hipped end of the slated roof slope immediately behind it. 4.5.5 The glass panels themselves are formed from individual clear glass insulating units (colloquially referred to as 'double glazing'). Each panel is secured in the framing. I calculate there are a total of 25 separate panes of glass forming the glazed enclosure. Some of the vertical panes of glass sit within opening casements. There is a total of 4 such opening casements [ie the windows]. There are no opening panels in the roof slopes of the glazed enclosure. 4.5.6 Each glass insulating unit comprises two sheets of glass separated from each other at their edges by perforated spacer bars. These perforated spacer bars are usually hollow and are filled with a desiccant material to absorb water vapour in the cavity lying between the two glass sheets. A sealant material usually conceals the spacer bar around the outside edge of the unit and renders the cavity airtight."

3. These panels are fixed into the framework and cannot be repaired in situ. They cannot be removed from inside of the flat. They need to be lifted off the penthouse framework from above. It is said that the lifecycle of the panels is 25- 30 years, following which there has to be wholesale replacement. In the trial below, the expert could not opine on the construction of the framework but suggested that it was probably bolted and screwed into the structure of Waterman's Quay. The penthouse panels are in disrepair. They suffer from staining from interstitial condensation. It is not the framework which is in disrepair but rather it is the panels themselves. The only safe means of accessing the exterior of the penthouse panels is via the erection of scaffolding on the appellant's land. In the past they have been accessed by abseiling from anchor bolts, but it is said that those bolts were not intended for that purpose.

4. I turn to the lease. It is common ground that the terms of the lease of this flat are standard for all of the flats in Waterman's Quay and possibly also the other flats at the site. "The Demised Premises" is defined in the lease as: "the flat forming part of the Building and shown edged red on the Plan and more particularly described in the First Schedule hereto." The First Schedule, where relevant (and I am going to leave out words which I do not think are relevant) provides as follows: "The Demised Premises comprise the flat ... known as Flat 70 William Morris Way Fulham London SW6 and includes:- (1) all doors and windows of the Demised Premises including external doors and windows and door frames and the glass (but excluding the paint work and decoration of the external surfaces of such doors, windows and window frames ... BUT EXCLUDING (a) the Main Structure." "The Main Structure" is defined as: "the main structure of the Building including (but not by way of Limitation) (i) the roof ... (iii) the exterior and the load bearing walls and columns of the Building."

5. So far as repairing covenants are concerned, in clause 3.5 the tenant covenanted that: "Throughout the Term when and where and so often as occasion shall require well and sufficiently to repair renew maintain cleanse glaze amend and keep the interior of the Demised Premises and the appurtenances thereof including the doors glass windows fixtures fittings [etc] serving the Demised Premises alone ... in a good state of repair and condition ..." whereas the landlord covenanted: "To maintain and keep in good and substantial repair and condition and where necessary renew: (i) the Main Structure ..."

6. The last provision of the lease which is worth mentioning is clause 22 of the Fixed Schedule which provides for the tenant to clean all the exterior surfaces of all of the windows of the flat at least once in every calendar month.

7. That is the relevant background. This matter came up for a trial before HHJ Raeside, which looks, as far as I can tell, to have been set down for five days but may have lasted four days, including reading time and excluding judgment time. In the judgment the judge found that the penthouse panels were in disrepair because the insulated units had failed, and he said in his judgment at para.164: "... once glass insulating units have failed due to condensation and misting, the only practical remedy is to replace the unit completely with a new unit assembled in factory condition. In my opinion, the sum of £10,000 to £12,000 in respect of the deployment of independent scaffolding to access the penthouse panels is reasonable and, possibly, slightly inadequate. A sum of £65,000 for replacing the glass insulating panels is very high relative to cost of materials and operatives' time on site required, but it probably represents the amount that is sufficient to induce a specialist glazing company to take on the challenges, difficulties and risks associated with replacing the glass insulating units at high level in a central London location with little information about the original glazing system employed."

8. The judge then was referred to, and correctly summarised, the law relating to the interpretation of contracts. He referred to Arnold v Brittan , [2015] AC 6019 Buckingham v Bernardo's [2019] 1 ICR 495 , Investors Compensation Scheme v West Bromwich , [1998] 1 WLR 896 Chartbrook v Persimmon , and then went on to consider the terms of the lease so far as they relate to the penthouse panels. [2000] AC 1101

9. The judge considered that the penthouse panels were part of the main structure because they were part of the roof. He said at para.193: "This definition [of 'main structure'] is a structural definition which deals with the basic parts of a building as can be seen without division. There is no division so far as the roof is concerned by reference to what comprises part of that roof or the material used such as glass."

10. At para.195 he said: "The definition of the 'Main Structure' as set out above means (i) the roof without partition or without what comprised that roof including any panels within it."

11. Elsewhere, at para.200, he said. "A roof is a roof whether it is tiled or glass, especially when the definition is to structure not material used in the construction of the structure and the way the Lease was drafted." The main structure, as I have said, is not part of the demised premises.

12. At paras.194 to 200 of his judgment, the judge then discussed whether the reference to glass in clause 3.5 of the repairing covenant made the tenant responsible for the penthouse panels, which he clearly, as I have said, regarded as forming part of the roof. He concluded that they did not.

13. It is clear from this ex tempore judgment that the judge held, in summary, that (1) the term "roof" included the penthouse panels, and, (2) the reference to glass in the repairing covenant in clause 3.5 did not make the tenant responsible for the penthouse panels in the roof.

14. There is now one ground of appeal against that judgment, and that ground of appeal is this: that the judge was wrong to hold that the appellant was obliged to repair the penthouse panels to 70 Waterman's Quay and to order the appellant to pay the respondents damages for disrepair because the panels were part of the demise to the respondents and thus did not fall within the scope of the appellant's repairing obligation. It follows from this ground of appeal, and Mr de Waal KC was clear, that the appeal is the judge was wrong to conclude that the penthouse panels were part of the main structure or roof, which is retained by the landlord, and that he should have found that they were windows and therefore part of the demised premises. Mr de Waal KC does not contend that if the penthouse panels form part of the roof they are nevertheless the subject of the tenant's repairing covenant. The issue which the judge tussled with at paras.194 to 200 of his judgment therefore does not arise on this appeal.

15. Although presented by Mr de Waal KC as an issue of law because it raises a point of construction, I think this ground of appeal is a point of mixed law and fact. The lease itself is clear as to whose responsibility it is to maintain the main structure, including the roof, and who is responsible for maintaining the demised premises, including the windows. No real question of construction remains. The question of whether the penthouse panels are part of the roof or indeed the external walls which are also part of the main structure, or whether they are windows, seems to me to be ultimately a question of fact for the trial judge. He was clear that it was part of the roof - see para.201. No error of principle or mistake as to the evidence is alleged. So, as made clear by authorities such as Volpi v Volpi [2022] EWCA Civ 464 and Henderson v Foxworth Investments Ltd (SC(Sc)) [2014] 1 WLR 2600 , the question is whether the judge's finding that this formed part of the roof was one which no reasonable judge could have reached. Mr de Waal KC accepts that, but says this is a finding which no reasonable judge could have made, although I should say that Mr de Waal does encourage me to consider the matter afresh on the basis that it is a point of construction and at least a question of mixed law and fact.

16. Both parties referred me to Twinmar Holdings v Klarius [2013] EWHC 944, where Edwards-Stuart J said this at paras.31 to 32: "31. In the context of a lease, I consider that the essential characteristics of a window are that it is a glazed panel in a frame that is set into the external envelope of a building (although sometimes there can be internal windows to allow the passage of light within a building), the purpose of which is to let in light and, usually, to enable those in the building to see out. ... Further, it is reasonably clear that a window does not have to be in a vertical plane: opening glazed roof lights (such as the 'Velux' type window) are in my view properly described as windows. Whilst many windows are capable of being opened, this is not an essential characteristic of a window.

32. For the purposes of this case I leave out of consideration the modern glazed curtain wall, or similar structures, where glass panels may be mounted on a metal frame. These are not windows in the sense of being glazed panels set into a frame, but whether they are to be regarded as windows or part of a curtain wall is a question that would have to be decided by reference to the terms of the relevant lease if and when the point arises." I think that there is an error in the reporting of para.32. I think what the judge was saying was: "These are windows in the sense of being glazed panels set into a frame, but whether they are to be regarded as windows or part of a curtain wall is a question that would have to be decided by reference to the terms of the relevant lease if and when the point arises."

17. What I take from that judgment is, firstly, that the judge was identifying the minimum characteristics to be a window. He was not defining a window. Moreover, as recognised by his distinguishing of a glass wall from a window which is not capable of being opened, there will be structures which have what the judge considered to be the minimum characteristics of a window but which are not themselves windows. Within that class of structures which have what the judge considered to be the minimum characteristics of a window, there remains the question of whether the structure is a window or a wall or a roof for the purposes of the relevant lease in question. It is ultimately a matter of construction of the lease in question, but terms like "window", "roof" and "wall" are terms which have an ordinary meaning and do not need definition. It is usually fairly obvious what is a window in the ordinary usage of the term and what is not. It may be hard to describe an elephant but you know one when you see one. If it is a glazed panel in a frame in an exterior wall which opens and closes, then it is likely to be a window. There may be windows which do not fit this description because, for example, they are in an internal wall or because they do not open, or perhaps even because they are not glazed, but which may nevertheless be properly described as a window. But if you have a conservatory with walls and roof made up entirely of fixed glass panels in a frame and which do not open, can each such pane be regarded as a window? I do not think so. A fixed glass wall is not a window in itself, but it may have windows. In this case, the penthouse glass structure has four opening panels which are aptly described as windows. Many conservatories are the same. To my mind, a window also conveys the sense that it is an opening in a wall or roof for some amenity such as light or air, which the wall in which it is set does not provide. A glazed opening casement window in a brick wall provides both air and light. As I said, a fixed glass wall is not a window in itself but it may have an opening window which allows in air.

18. I therefore agree with the judge's conclusion that the penthouse panels form part of the roof and are not windows. Using the elephant recognition principle I have described above, that is how it appears to me also from the photographs. The structure provides shelter and insulation for the flat and the floors below from the elements. It may be made primarily of glass panels but that does not make each of those panels a window. I therefore do not consider that the appellants are able to cross the threshold of showing that the judge's findings that the penthouse panels form part of the roof was one which no reasonable judge could have reached.

19. It is not necessary to consider the several other less direct arguments which Mr Cohen advanced as to why, as a matter of construction of this particular lease and the scheme of the repairing obligations and access requirements, the penthouse panels should be treated as part of the main structure.

20. I dismiss this appeal. - - - - - - - - - - (This Judgment has been approved by Mr Justice Rajah.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com