PCCW HKT TELEPHONE LTD AND ANOTHER v. LINK PROPERTIES LTD

CACV 275/2017

[2019] HKCA 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2017

(ON APPEAL FROM HCMP NO 3458 OF 2016)

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J U D G M E N T

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Hon Lam VP:

1.  I agree with the judgment of Kwan JA and have nothing to add. There will be an order in terms of [51] and [52] below.

Hon Yuen JA:

2.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

3.  This appeal is concerned with the proper construction of sections 14(1) and (10) of the Telecommunications Ordinance, Cap 106 (“the Ordinance”).

4.  By section 14(1), the Communications Authority[1] (“the Authority”) and any licensee authorized by the Authority (such as the plaintiffs), have a right of access for the purpose of placing and maintaining a telecommunications line, and such posts as may be necessary, “in, over or upon any land or seabed”.

5.  Section 14(10) provides for an exception as follows:

“In subsections (1) and (1A)[2], land (土地) does not include land for the exclusive occupation or use of any person whilst the land is being so occupied or used.”

6.  At issue is whether the plaintiffs, as licensees authorized by the Authority, have a right of access under section 14(1) to parts not leased out to tenants of a privately owned commercial complex.  Those unleased parts have been referred to in the originating summons as the “Common Use Parts” and which include entrances, passages, accesses, and rights of passage of telecommunication services and electricity.

7.  In his judgment of 6 November 2017 ([2017] 5 HKLRD 814), Lok J answered the question in the negative, holding that the exception in section 14(10) applies and the Common Use Parts are not “land” within the meaning of section 14(1).  Accordingly, the plaintiffs do not have a right of access under section 14(1) to lay or maintain telecommunications lines in the Common Use Parts.

8.  This is the plaintiffs’ appeal.

Background

9.  The relevant background matters may be stated as follows.

10.  The plaintiffs are fixed telecommunications network service providers.  They were granted Unified Carrier Licence No 025 by the Authority on 29 June 2010.  In order to serve users of its licensed services, it is necessary for the licensee to install and maintain certain facilities in common parts of those buildings where the existing or future users are situated.  For this purpose, the Authority granted an authorisation to the plaintiffs dated 29 June 2010 pursuant to section 14(1) of the Ordinance[3].

11.  Under the Special Conditions of the Unified Carrier Licence, the plaintiffs are required to have interconnection with the services and networks of other carriers[4].  Further, the plaintiffs are required to assume a “universal service obligation”[5].  By section 35B(2) of the Ordinance, a universal service obligation is “to ensure that a good, efficient and continuous basic service is, in the Authority’s opinion, reasonably available to all persons within the areas of Hong Kong covered by that obligation”.

12.  The defendant is the sole legal owner of the Choi Wan Commercial Complex (“the Complex”) in Choi Wan (1) Estate (“the Estate”) in Ngau Chi Wan, Kowloon, Hong Kong.  The Complex was built by the Hong Kong Housing Authority (“HKHA”) in or about 1980 on unleased Government land.

13.  On 29 December 2008, the Government granted a lease to HKHA of New Kowloon Inland Lot No 6461.  On 22 April 2009, HKHA subdivided the land into Section A of New Kowloon Inland Lot No 6461 and the Remaining Portion of New Kowloon Inland Lot No 6461 (“the Relevant Land Lot”).  The Relevant Land Lot contains buildings collectively known as the Estate, which includes the Complex.

14.  By an assignment dated 7 October 2009, HKHA assigned to the defendant 61,003 equal undivided shares 394,552^nd parts or shares in the Relevant Land Lot, together with the sole and exclusive right to hold, use, occupy and enjoy the Complex, which includes commercial blocks, car park blocks and car‑parking spaces, and associated areas of the Estate as shown on the plans annexed to the assignment.

15.  HKHA and the defendant also entered into a deed of mutual covenant (“DMC”) on the same date in respect of the Estate.  The DMC again recited that the defendant shall have sole and exclusive right to hold use, occupy and enjoy, to the exclusion of HKHA its successors and assigns, the Complex.  And included in the additional rights of the defendant are the right to redevelop or further develop the Complex and to change the use of the Complex.

16.  Over the years, the defendant has leased out shop units in the Complex to various tenants.  As mentioned before, the Common Use Parts are those parts in the Complex not leased out by the defendant.

17.  Most of the tenancy agreements are based on the same standard form and contain these relevant provisions:

(1)   In the definition provision in clause 1.2, “Common Parts” is defined to mean:

“the entrances, passages, accesses, lifts, escalators, toilets, car parking, loading and unloading and other areas and facilities of the Building[6] and the [Relevant Land Lot] from time to time designated by the Landlord and/or the Manager for common use by the owners and occupiers of the Building.”

(2)   By clause 2, the defendant as the landlord demised the Premises[7] to the tenant for the term, together with the rights set out in Part I of Schedule 2, except and reserving as mentioned in Part II of Schedule 2.

(3)   Clause 4.27 relates to “Common Parts” and provides as follows:

“4.27.1 Not to cause any obstruction to the Common Parts nor to cause any obstruction to the pavement in front of the Premises, nor to park, load or unload vehicles otherwise than in the loading and unloading areas or other areas designated for such purpose from time to time;

4.27.2 Not to use any Common Parts outside the Premises for any purpose such as storage or display of goods and not to erect any structure or roof on or over the Common Parts;

4.27.3 Not to erect or install any aerial, transmitter or other telecommunication cable or wiring equipment in or on any Common Parts save with the prior written consent of the Landlord and/or the Manager which consent, if given, may be subject to conditions and may be revoked at any time by the Landlord and/or the Manager;

4.27.4 To pay to or reimburse to the Landlord the cost of any damage caused to any part of the Common Parts occasioned by the Tenant, its licensees, employees, agents or contractors or any other person claiming through or under the Tenant.”

(4)   Part I of Schedule 2 is headed “Easements and Other Rights granted”, the relevant provisions are:

“There are granted to the Tenant (in common with others authorised by the Landlord):

1. The right to use the relevant Common Parts for access to and from the Premises and for the proper use and enjoyment of the Premises.

2. Free and uninterrupted use of all Conduits[8] which are in the Building and serving the Premises, subject to the Landlord’s rights to re‑route the same. …”

(5)   Part II of Schedule 2 is headed “Exceptions and Reservations”, the relevant provision is:

“There are excepted and reserved to the Landlord:

… 5. The right to remove, cancel, relocate or otherwise change the Common Parts of the Building from time to time and in such manner as the Landlord may in its absolute discretion deem fit without the same constituting an actual or constructive eviction of the Tenant and without incurring any liability to the Tenant therefor provided that the change of the Common Parts shall not affect the shop front or adversely affect the access to and egress from the Premises[9].”

18.  The defendant closes some parts of the Complex at night. Certain parts of the Complex are accessible 24 hours a day.

19.  At present, the plaintiffs are permitted by the defendant to have the right of access to the Common Use Parts to place and maintain telecommunications lines, with the full co‑operation of the defendant in gaining access, subject to the prior application to enable the defendant to assess any risks involved in the installation and possible disruption to tenants.  They pay the defendant a modest sum of $1,800 a year as licence fee.  The plaintiffs contended they should be able to do so without the need to seek the defendant’s approval, asserting that they have a statutory right of access to the Common Use Parts under section 14(1).

The legislative context and purpose

20.  In the interpretation of a statutory provision, “it is necessary to read all of the relevant provisions together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting.”  (Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 154B to C, per Bokhary PJ) “The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.” (HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 606E, per Mason NPJ)

21.  On 30 June 1995, the Government ended the monopoly in the provision of telegraphic and telephonic services in Hong Kong of the plaintiffs’ predecessor.  Prior thereto, the Authority had issued a statement dated 18 May 1995 entitled “Building Access Guidelines” in which it was stated:

“4. It is the Government’s policy that all consumers in Hong Kong should have unimpeded access to the full range of public telecommunications and broadcasting services of their choice. All network operators have been granted the “utility” status and they will be authorized under the Telecommunications Ordinance to install and maintain their networks in, over or upon any land, including the “common parts” of buildings in private properties.

5. It is in the mutual interests of the property developers and the network operators for adequate facilities (cable ducts, risers, equipment rooms, etc.) to be provided to enable the occupiers in the property developments to access the full range of public telecommunications and broadcasting services. …

6. … As from 1 July 1995, there will be a multi-operator environment for the local fixed networks in Hong Kong. There should be fair and effective competition among the network operators. The facilities provided by developers should be available for access by all network operators on a non-discriminatory basis.”

“36. Under section 14 of the Telecommunications Ordinance, the owners, developers or managers of existing buildings are not entitled to charge for the space to be provided for the additional access facilities. If the access facilities provided by the owners, developers or managers are not adequate to serve the occupiers in the building, the network operators may also install their own access facilities in exercise of their right of access under section 14 of the Telecommunications Ordinance. The network operators are required to compensate the landowners for any damage caused in the installation or operation of the access facilities.”

22.  Prior to the amendments introduced in 2000, the right of access under section 14(1) was unqualified.  By this provision, the Authority and any licensee authorised by it, may “place and maintain a telecommunications line, and such posts as may be necessary, in, over or upon any land”.

23.  Section 14(10) was added by the Telecommunications (Amendment) Ordinance 2000.  According to the Legislative Council Brief dated 30 April 1999, one of the aims of the proposed amendments was to “clarify certain provisions concerning access to land and interconnection which are already in existence” in the Ordinance[10].  The principles for the proposals of the Information Technology and Broadcasting Bureau on access to buildings and land were set out in §§24 to 26 at Annex D to the Brief, the relevant parts of which read as follows:

“24. Under section 14 of the Telecommunications Ordinance, the [Authority] may authorise a licensee to place and maintain telecommunication lines upon land which, by virtue of section 19A[11], includes the “common parts” of buildings. When a licensee is so authorised by the [Authority], the licensee has a right under section 14 to enter the land to place and maintain telecommunication lines. …

25. Many submissions to the Review[12] referred to difficulties in gaining access into buildings to extend the coverage of the fixed networks because of the failure to obtain the necessary cooperation from the developers and landlords. They complained about discriminatory treatment of fixed network operators in some cases and the lack of expeditious and certain channels to enforce the right under section 14. Difficulties in building access had been cited as one of the major factors contributing to the slow development of competition in the supply of local fixed lines. We propose to amend section 14 to empower the [Authority] to intervene if the licensees encounter difficulties in enforcing the right of access. …

27. … As mentioned above, under the Telecommunications Ordinance land is broadly defined – there is no limitation to the common parts of buildings. It certainly is not, though, the intention of the [Authority] or any licensee to possess authority to enter residential accommodation or general business premises. The intention is to allow telecommunications companies to lay lines and to place equipment in the common parts of buildings or land, particularly in shielded places like shopping malls and tunnels, and this will be made clear in amendments to the Telecommunications Ordinance.”

24.  As part of the amendments in 2000, section 19B was added and this provides that a term in a lease agreement, deed of mutual covenant or commercial contract that unreasonably restricts the right of a resident or occupier, or deprives a resident or occupier of the right, to have access to the public telecommunications services of his choice is void. Section 35B(2), also part of the 2000 amendments, provides for a “universal service obligation” which the Authority may require a fixed carrier licensee to take up, “to ensure that a good, efficient and continuous basic service is, in the Authority’s opinion, reasonably available to all persons within the areas of Hong Kong covered by that obligation.”

25.  These two provisions sought to give effect to the policy considerations mentioned in the “Building Access Guidelines”, that all consumers should have unimpeded access to the full range of public telecommunications and broadcasting services of their choice, and that there should be fair and effective competition among network operators.

26.  By section 14(1), a defence of statutory authorisation is provided to an action for trespass or nuisance that may otherwise be brought by persons affected.  By section 14(2), a statutory right to compensation is given to the persons affected by the statutory authorisation.  Under this provision, the Authority or the licensee shall (a) give reasonable notice to the owner of any land of the Authority’s or the licensee’s intention to enter upon that land, (b) do as little damage as possible, and pay full compensation to any person having a lawful interest in the land, or being lawfully thereon, who suffers physical damage to any fixture or chattels found on the land as a result of the exercise of those powers.

27.  The legislative device in section 14(1) was to cast the net wide.  The word “land” in that provision is general and unlimited. An exception to section 14(1) is provided in section 14(10).  To come within that exception, the land must be “land for the exclusive occupation or use of any person whilst the land is being so occupied or used” (emphasis supplied).  There are two necessary requirements in this provision.  The effect of the words “for” and “whilst” is as submitted by Mr Yu, SC for the plaintiffs.  The word “for” introduces a condition of purpose, namely, that the land is intended for the exclusive occupation or use of a person.  The word “whilst” introduces a temporal condition, namely, the fulfilment of the purpose referred to in the condition of purpose, related back by the word “so”, in the present time.

28.  The word “or” in section 14(10) should be noted. Provided that the condition of purpose and the temporal condition are met, either “exclusive occupation” or “exclusive use” would be sufficient to bring the land within the exception.

29.  The focus of the submissions in this appeal is on “exclusive occupation”.

The judgment below

30.  Lok J held that the defendant has factual exclusive use and occupation and the intention for exclusive use and occupation of the Common Use Parts[13], hence the exception in section 14(10) applies.  His reasoning may be summarised as follows:

(1)   The defendant has the right of exclusive use and occupation of the Common Use Parts and retains exclusive control over the use and occupation of the Common Use Parts, by virtue of the assignment and the DMC.  The provisions in the DMC in relation to “common parts” do not affect the defendant’s right of exclusive occupation and use of the Complex including the Common Use Parts because the definition of “Estate Common Areas and Facilities” in the DMC excludes any parts in the Complex[14].

(2)   The defendant has not lost its right of exclusive use and occupation of the Common Use Parts by entering into the tenancy agreements.  The court should not just look at the physical use of the Common Use Parts, but should examine the nature of the right granted to the tenants and the right reserved by the defendant[15].

(3)   The tenants only have limited right of using the Common Use Parts for access and for the proper use and enjoyment of their shops.  They do not have any right to occupy the Common Use Parts.  They cannot claim a proprietary right to use a particular area of the Common Use Parts.  As for the right to use conduits serving their shops, this is subject to the defendant’s right to re-route the same[16].

(4)   The defendant maintains the absolute right to change the “common parts” defined in the tenancy agreements from time to time.  It exercises exclusive right to grant ingress and egress to visitors to the Complex and the Common Use Parts, and determines the opening hours of the Complex.  It has exclusive control over the accessibility of any part of the Complex.  In addition, it carries out various acts to manage, maintain and repair the Complex at its own costs[17].

31.  The judge concluded that the fact that the defendant is contractually bound to provide passageways for access to the tenants does not mean that it has lost exclusive use or occupation of the Common Use Parts.

32.  In light of his conclusion that the Common Use Parts do not fall within the meaning of “land” in section 14(1) by reason of the exception in section 14(10), the judge did not find it necessary to deal with the defendant’s supplemental argument based on section 19A(1) that the Common Use Parts would fall within the exception of “common parts” in section 2 of the Building Management Ordinance, Cap 344[18].

The concept of occupation

33.  The word “occupation” in section 14(10) is not a legal term of art, with one single and precise legal meaning applicable in all circumstances.  Its meaning varies according to the subject matter, the factual situation, the context and purpose of the statutory provision (Graysim Holdings Ltd v P&O Property Holdings Ltd [1996] 1 AC 329 at 334G to 335C, per Lord Nicholls).

34.  At 335G, Lord Nicholls addressed the problem where the business of one person consists of permitting others to use his property for their business purposes, so that in the result both exercise rights over the same property for the purposes of their own separate businesses.  In some instances, the landowner will remain in occupation of the whole even though his business consists of permitting others to come onto the property and use it temporarily for their business purposes.  At the other extreme are cases where the landowner permits another to enter and carry on his business there to the exclusion of the landowner.  Pertinently, at 336A to C, Lord Nicholls had this to say:

“To look for a clear line between these instances would be to seek the non-existent. The difference between the two extremes is a difference of degree, not of kind. When a landowner permits another to use his property for business purposes, the question whether the landowner is sufficiently excluded, and the other is sufficiently present, for the latter to be regarded as the occupier in place of the former is a question of degree. It is, moreover, a question of fact in the sense that the answer depends upon the facts of the particular case. The circumstances of two cases are never identical, and seldom close enough to make comparisons of much value. The types of property, and the possible uses of property, vary so widely that there can be no hard and fast rules. The degree of presence and exclusion required to constitute occupation, and the acts needed to evince presence and exclusion, must always depend upon the nature of the premises, the use to which they are being put, and the rights enjoyed or exercised by the person in question.”

35.  In this instance, the context and purpose for which the concept of occupation is being used is a statutory right of access to land and buildings including common parts of the land and buildings, the only exception being land which is for the exclusive occupation (or use) of a person and only whilst such land is being exclusively occupied (or used).  For the present analysis, we look at the nature of the Common Use Parts, the use to which they are put, the rights enjoyed by the tenants over the Common Use Parts, and the rights exercised by the defendant over the same.  It is a question of fact and degree.  And it must be borne in mind that exclusive occupation must be established both in respect of the condition of purpose and the temporal condition for the exception in section 14(10) to apply.

Analysis

36.  I start with the nature of the Common Use Parts, the uses to which they are put, and the nature of the rights granted to the tenants under the tenancy agreements.  For present purpose, there is no material difference between the Common Use Parts and the “common parts” as defined in the tenancy agreements.  “Common parts” are defined in the tenancy agreements to mean “the entrances, passages, accesses, lifts, escalators, toilets, car parking, loading and unloading and other areas and facilities of the Building and the [Relevant Land Lot] from time to time designated by the Landlord and/or the Manager for common use by the owners and occupiers of the Building”.  They are the subject of express grants by the defendant to its tenants with the “right to use”, “in common with others” authorised by the defendant, “for access to and from the [demised premises] and for the proper use and enjoyment of the [demised premises]”.

37.  The Complex contains shop units let to tenants.  Some units, such as the convenience store operated by The Dairy Farm Company, Limited, have the right to run their business 24 hours a day.  It is expected that staff and customers would be using the common parts for access to and from these premises round the clock.  Even for shop units that do not operate 24 hours a day, it does not mean that employees would not need to use the common parts for access to and from such premises outside normal business hours.

38.  There was some debate whether the right granted to the tenants in respect of the common parts under the agreements was in the nature of an easement, right or privilege in or over the land.  Mr Yu submitted that the legal interest granted in the tenancy agreements was for an interest equivalent to a term of years absolute and falls within the meaning of “legal estate” in section 2 of the Conveyancing and Property Ordinance, Cap 219[19].  Mr Jat, SC submitted on behalf of the defendant that the heading “Easements and Other Rights granted” in the tenancy agreements is for ease of reference only and tenants cannot be regarded as having acquired an easement or any proprietary right over the common parts when the scope of such right can be changed by the defendant in its absolute discretion.  For present purpose, I do not think it necessary to come to a firm view on this, adopting an approach similar to the English Court of Appeal in Saeed v Plustrade Ltd [2002] 2 EGLR 19.

39.  In that case, the lease granted to the tenant a right, in common with others entitled to like right, to park her car on such part of a defined area of land retained by the landlord as might from time to time be specified by the latter as reserved for car parking when space was available.  Sir Christopher Slade, who gave the judgment of the court, left open the question whether a right to park in a car park could amount to an easement or merely a contractual right.  The crucial question was what were the legal rights of parking (if any) granted to the tenant by the lease on its true construction; it mattered not whether they should be categorised as easements (at §23).

40.  The principal submissions made on behalf of the landlord in that case have some resemblance to the submissions of the defendant here.  Reliance was placed on the phrase “as may from time to time be specified by the lessor” which made it clear that the lessor would have the power in some circumstances to vary the area specified by it as reserved for car parking.  It was argued on its behalf that as the area set aside for parking was not fixed and immutable, but could be changed by the lessor when it saw fit, it followed that if the lessor saw fit the parking area could be withdrawn altogether.

41.  In rejecting the argument that the lessor had the right if it thought fit wholly to determine the tenant’s right to park, Sir Christopher Slade agreed with the court below the words “from time to time” indicated merely that the lessor could change the specified location of the parking spaces from one part of the forecourt to another, but not that it could extinguish the right to park.  If the lessor had wanted to retain the entitlement to determine at its option the right to park, it was incumbent on it to say so explicitly in the lease (at §32).

42.  Similarly in our case, the fact that the defendant retains the right to change the location of the “common parts” in the tenancy agreements and to re-route the conduits serving the demised premises does not mean it could extinguish the tenants’ right to use the common parts for access to and from the premises and for the proper use and enjoyment of the premises and the right to have free and uninterrupted use of conduits serving the premises.  The present situation is even clearer than Saeed v Plustrade Ltd as there was built into the proviso to §5 in the “Exceptions and Reservations” section in Schedule 2 of the tenancy agreement regarding the landlord’s right to “remove, cancel, relocate or otherwise change the Common Parts of the Building from time to time and in such manner as the Landlord may in its absolute discretion deem fit” that “the change of the Common Parts shall not affect the shop front or adversely affect the access to and egress from the Premises”.

43.  Even more pertinently, during the time when land is designated for use by the tenants in common with others authorised by the defendant as common parts or for the use of conduits serving the demised premises, though the defendant retains the right to change the common parts and to re‑route the conduits, the defendant could not have at the same time exclusive occupation or use of those very same parts.  It should be noted that of the items mentioned in the definition of “common parts” in the tenancy agreements, lifts and escalators are hardly installations of short-term duration. The temporal condition that whilst the land is exclusively occupied or used is not satisfied, and the condition of purpose is likewise not satisfied whilst the land is intended for common use or occupation.

44.  The purpose for which the concept of exclusive occupation is being used in the present context should be borne in mind.  The object of section 14 is to provide a right of access to facilitate the installation and maintenance of telecommunication lines in, over or upon any land, including the “common parts” of buildings in private properties.  The legislation is to give effect to the policy considerations of unimpeded access of all consumers to the full range of public telecommunications and broadcasting services of their choice, and fair and effective competition among the network operators.

45.  As guaranteed by section 19B, tenants of the Complex should be in a position to exercise their right of access to the full range of public telecommunications services of their choice, where networks extend to the demised premises, and tenants can then decide which provider to use to lay the cables and install equipment within their own premises.  As required by the Unified Carrier Licence granted to the plaintiffs, the telecommunication lines and facilities laid by them in the Common Use Parts form part of the plaintiffs’ network and is interconnected with all of the other operators’ networks.  The plaintiffs’ lines and facilities are thus in common use by the public, including customers of other telecommunications operators.

46.  To give effect to the legislative purpose, land designated as the common parts under the tenancy agreements, albeit for the time being, and conduits for the common purpose of the tenants, should be construed as subject to the right of access in section 14(1).  The exception in section 14(10) would apply to the demised premises let to tenants for their exclusive use and occupation and are so occupied by them (the point to which the networks extend) and tenants can then choose which provider they would use for telecommunications services.  I do not agree with Mr Jat that the line in section 14(10) should be drawn at the door of the privately owned Complex, which would include the Common Use Parts.  Nor do I agree with the judge that the legislative intent is to draw a distinction between common areas jointly owned by multiple owners, and common areas owned by a single owner[20].  Mr Jat was unable to point to any legislative material to substantiate this intent.

47.  Looking at the substance of the whole matter and taking a common sense approach, I am satisfied that as a matter of fact and degree, the Common Use Parts do not come within the exception in section 14(10).

48.  Mr Jat placed much reliance on the defendant’s exclusive and extensive right to control the use and occupation of the Common Use Parts, and emphasised the limited right of the tenants over the Common Use Parts.  This missed the point that the defendant does not have the right to deny any of the tenants and licensees the use of the common parts for the proper use and enjoyment of the demised premises.

49.  Nor am I troubled by the “anomalies” mentioned by the judge[21] and urged upon us by Mr Jat – that it is common and permissible for landlords of shopping malls to rent out spaces in passageways on short term basis for sales promotion counters and thereby prevent such converted areas from being used as passageway; and by analogy that shop units leased to tenants would not be under their exclusive use and occupation in that members of the public are permitted entry by the shopkeepers, if one applies the same logic deployed by the plaintiffs in the case of the Common Use Parts that the defendant permits the public to access the shop units via the Common Use Parts.

50.  I have dealt with the former concerning the right to re‑designate the common parts under the tenancy agreements.  As to the latter, it is a matter of fact and degree in each instance whether the licence or right of access granted by the tenants/the defendant is such that the tenants/the defendant no longer remain in exclusive use and occupation of the demised premises/Common Use Parts.

51.  I would allow the plaintiffs’ appeal, set aside the judge’s order, make a declaration in lieu that the plaintiffs have the right of access under section 14(1) to the Common Use Parts, and that the defendant should pay the plaintiffs’ costs of the originating summons.

52.  Costs of the appeal should follow the event.  I would make an order nisi that the defendant should pay the plaintiffs’ costs, with a certificate for two counsel.