The Royal Exchange is a Grade 1 listed building. The claimants (the Corporation of London and the Mercers Company) are the trustees of the Gresham Trust and the registered proprietors of the Royal Exchange. Opposite the Royal Exchange was the head office of Lloyds Bank. On 24 October 1928 the claimants and Lloyds executed a deed relating to the height of their respective buildings.
In May 2002, IVG Asticus Real Estate Ltd purchased the Lloyds Building that was now a listed Grade II building. IVG intended to develop the building along with other adjacent sites. IVG obtained planning permission and Listed Building Consent in August 2004. The planned buildings were at various points, higher than what was then thought to be permitted by the deed.
The deed provided that the Royal Exchange and Lloyds respectively would not erect any new building or buildings that would exceed the height indicated on the attached drawing. There was also a mutual covenant that the respective parties would not at any time after the date of the deed heighten, alter, reconstruct or rebuild their respective buildings in any way to contravene the heights shown on the attached drawing. The attached drawing showed the facade of the two buildings and specified two heights: (1) 80 ft to the pediment, and (2) 108 ft 3” to the top of the facade and 75° from the outside edge of the pediment to the top of the facade.
IVG’s proposed new building would exceed 108 ft 3” in height. Before the parties agreed on the effect of the deed, IVG commenced demolition work. Doing this gave rise to an obligation as a result of the conditions attached to the grant of planning permission to construct the new building in accordance with the plans.
On the true interpretation of the deed, was IVG entitled to erect any building to a height of more than 108 ft 3”?
IVG’s development was not in breach of the deed’s imposed height restriction. The drawing attached to the deed suggested that it was produced for the purpose of the deed and therefore would not have included a lot of irrelevant details or omitted relevant details such as the areas of affected sites, in the ascertainment of the height restriction. Secondly, if the parties to the deed had intended to impose a uniform horizontal restriction on height of 108’3” across the whole site why did they use a drawing at all? It could have been possible to refer to the appropriate words in the legislation at the time or to merely depict a horizontal line at 108’3” on the drawing.
Thirdly, the deed imposed an obligation on the parties to erect new buildings “in accordance with the drawing” as well to a “height not exceeding …” Thus it was envisaged that all the parameters indicated on the drawing and relevant to height would be observed. Fourthly the towers incorporated into the Lloyds Bank building (built after execution of the deed) exceeded 108 ft 3”. Fifthly the deed and the drawing had to be construed as a whole giving appropriate weight to each part of each of them. Sixthly it was not uncommon to impose a height restriction otherwise than over a uniform horizontal plane. Thus greater heights are often acceptable if they are stepped back from the frontage.
*Full case details
(1) Mayor & Commonalty & Citizens of London, (2) Wardens & Commonalty of the Mystery of Mercers in the City of London vs (1) Intercede 1765 Ltd (2) Intercede 176 Ltd
27 July 2005, High Court of Justice – Chancery Division, Sir Andrew Morritt VC.
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
It is reasonably common that adjacent parties may enter into agreement to ensure their right to light. Agreements between parties as to the future height of buildings must be very clear and, if the agreement refers to a drawing, the drawing refers to all areas of the building that the restriction is to apply to.