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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> National Car Parks Ltd, R (on the application of) v Trinity Development Company (Banbury) Ltd [2001] EWCA Civ 1686 (18 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1686.html Cite as: [2002] 1 P & CR DG19, [2002] 2 P & CR 18, [2002] L & TR 24, [2001] EWCA Civ 1686

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Thursday 18 October 2001

Thursday 18 October 2001

1. LADY JUSTICE ARDEN: This is an appeal from the order of His Honour Judge Rich QC, sitting as a deputy judge of the Chancery Division of the High Court, dated 9 November 2000, whereby the judge dismissed the claim for a declaration that the appellant ("NCP") was a tenant of premises described in an agreement called a licence, dated 18 November 1982, to manage a car park at Cherwell Centre, Banbury.
2. There is no dispute as to the facts. The signatories to the agreement were the NCP and the Standard Life Assurance Company, but it is common ground that the interest of the latter is now vested in the respondent to this appeal, whom I shall for convenience call "the landlord", but without expressing any view by that title as to whether the landlord is a licensor or a lessor. The agreement contains a provision for determining it on three months' notice. By letter dated 4 May 2000 the landlord gave such a notice. The NCP responded saying that the agreement created a tenancy and accordingly NCP was entitled to protection under Part II of the Landlord and Tenant Act 1954. The parties are agreed that the correctness of this contention depends simply on the question whether the agreement, as a matter of construction, creates a tenancy or a licence and that, if the former, the notice dated 4 May 2000 was invalid.
3. I now turn to the agreement. It will be necessary for me to set out some extensive parts of it.

"This licence is made the Eighteenth day of November One thousand nine hundred and eighty-two BETWEEN THE STANDARD LIFE ASSURANCE COMPANY .... (hereinafter called "the Licensor") of the one part and NATIONAL CAR PARKS LIMITED .... (hereinafter called 'the Licensee") of the other part.

WHEREBY IT IS AGREED as follows:

1. In this Agreement the following expressions shall have the following meanings: --

... ...

'Licenced premises' means the vehicle park and nearby landscaped areas at the Cherwell Centre Banbury as the same is edged red on the plan .... .

2. This Agreement shall continue in force from year to year until determined (without prejudice to the then accrued rights of the parties hereunder) by either party on three months prior written notice

3. The Licensee shall:

(1) Manage and administer the Licensed Premises subject to the provisions hereinafter contained

(2) Provide an attendant's kiosk and the necessary trade signs

(3) Employ adequate staff for the operation of the Vehicle Park. .

....

(6) Keep and maintain the Landscaped Areas in a neat and tidy condition.

(7) Keep in a good and substantial state of repair the lighting and surfacing of the Vehicle Park and the boundary walls and fences of the Licensed Premises PROVIDED ALWAYS THAT the Licensee shall not be obliged to resurface the whole of the Vehicle Park in any one operation in any one financial year ....

(9) Effect and maintain an adequate insurance against damage to or destruction of the boundary fencing and lighting comprised from time to time within the Licensed Premises and the surface of the Vehicle Park by such risks as are reasonably required by the Licensor from time to time and also adequate third party insurance covering the operations of the Licensee and the Licensee will indemnify the Licensor against all liability arising from the occupation and use of the Licensed Premises PROVIDED THAT the Licensee shall be under no insurance liability with regard to the Landscaped Areas other than third party risks

(10) Pay for and be responsible for all head office and local supervision and security with respect to the operation and use of the Licensed Premises

(11) Make good any damage to boundary walls and fences arising through vehicle impact --

(12) Operate the Vehicle Park as a shoppers car park and ensure that the parking charges are no less than in accordance with the scale of charges for the time being applicable to the Cherwell District Council's multi-storey car park in Castle Street Banbury

(13) Subject to the provisions of clauses 4(2) and 6 hereof ensure that 40 car parking spaces in the Vehicle Park are available free of charge to the occupiers and their employees of the Licensor's land shown edged blue on the said plan annexed hereto provided the relevant occupier or employee enters and leaves the Vehicle Park between the hours of 8.30 am and 6.00 pm Monday to Friday inclusive."

4. Clause 4(2) dealt with the provision of a list of names for the persons entitled to the 40 free car parking spaces. Clause 5 dealt with the calculation (by reference to a percentage of net profit as defined) of the consideration to be paid to the landlord for the rights conferred by the agreement, and I need not read that.
5. Clause 6 provides:

"THE following provisions shall have effect in relation to clauses 3(13) and 4(2) hereof: -

(1) The Licensee shall issue the relevant occupiers and employees with complimentary season tickets providing for cancellation on the requirement of the Licensee

(2) The Licensee shall not require the cancellation of any such ticket save on the direction of the Licensor

(3) Any such ticket holder who is unable to produce the same to the Licensee shall be liable to pay the current parking fee charged to the general public using the Vehicle Park

(4) Every such ticket holder shall be bound to the Licensee in the same manner as members of the general public using the Vehicle Park by the Licensee's Standard Terms and Conditions of Parking from time to time current save in relation to parking fees (subject to the provisions of sub-clause (3) of this clause) and without prejudice to the generality of the foregoing it is hereby declared that as between the parties hereto the contract entitling every such ticket holder to use the Vehicle Park shall be a contract between the holder and the Licensee made in consideration of the said terms and conditions save as aforesaid.

7. The Licensee shall not impede in any way the officers, servants or agents of the Licensor in the exercise by them of the Licensor's rights of possession of the Licensed Premises and shall give all reasonable assistance and facilities to afford the Licensor and its agents occupation of the Licensed Premises on a temporary basis for the re-surfacing thereof and the carrying out of other works thereto provided always that the Licensor shall not be thereby be entitled to require the Licensee to infringe any contract between it and a person entitled to use the Vehicle Park and provided that the Licensor shall indemnify the Licensee from and against all loss damage and legal liability that the Licensee may thereby sustain.

8. This Licence is not intended by either party hereto to confer upon the Licensee any right or interest in the nature of a tenancy and gives no proprietary interest to the Licensee in the Licensed Premises."

6. Clause 7 is the clause to which a considerable amount of the argument has been addressed. It falls into two parts. I call from "The Licensee" down until "the Licensor's rights of possession of the Licensed Premises" the first limb, and the remainder the second limb.
7. It will be observed that there is some overlap between clause 3(7) and some of the later provisions. There is an overlap, for instance, in relation to the resurfacing obligations imposed by clause 7. Mr Furber, for the NCP, explained that in the following terms: that the licensor might wish to resurface using the rights implied by clause 7 if the licensee was in breach of its own obligations in clause 3(7), or if the licensor wanted to carry out resurfacing which went beyond that which the licensee is obliged to do under 3(7). But the general resurfacing was clearly a matter for NCP because of clause 3. There is also further overlap through subclause (7) and subclause (11) of clause 3 in relation to boundary walls. Again Mr Furber submitted that that overlap was not necessarily complete, since there might be work which should be done to the boundary walls because of vehicle impact which did not constitute repairs under subclause (7).
8. The parties to this appeal are agreed upon the relevant principles of law, which may be summarised as follows. The first is that, in determining whether the agreement amounts to a tenancy or a licence, regard must be had to the substance and not to the form. The fact that the parties describe their agreement as a tenancy does not prevent it from being a licence, or vice versa. Mr Furber submits that several parts of the agreement are akin to a declaration that the agreement amounts to a licence rather than a tenancy. He also submits that the opening clause of clause 7 is also in the nature of such a declaration, since it referred to the licensor having a right of possession. He submits that that is merely a label, a point to which I will have to return in due course.
9. Secondly, where there is a grant of exclusive possession to the occupier for a term and at a rent then, save in exceptional circumstances, there is in law a tenancy: see Street v Mountford [1985] AC 809, 819D-G and 826A-827B per Lord Templeman, with whom the House agreed. In Street v Mountford, the only question was whether an agreement dated 7 March 1982, which it was common ground gave exclusive possession to the occupier, created a licence or a tenancy. The document signed by the occupier stated that she understood that a licence in the form granted did not, and was not intended to, give her a tenancy protected under the Rent Acts. The Court of Appeal held that, unless the declaration was a sham or an inaccurate statement of the agreement between the parties, the agreement which the parties had made was indeed a licence. Lord Templeman at page 826 set out the following passage from the judgment of Slade LJ:

"Slade LJ said, at p 330:

'It seems to me that, if the defendant is to displace the express statement of intention embodied in the declaration, she must show that the declaration was either a deliberate sham or at least an inaccurate statement of what was the true substance of the real transaction agreed between the parties; ...'"

10. Lord Templeman continued:

"My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent. Sometimes it may be difficult to discover whether, on the true construction of an agreement, exclusive possession is conferred. Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships. Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referrable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office. But where as in the present case the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy."

11. Thirdly, still dealing with the applicable principles in this case which are common ground between the parties, by parity of reasoning the declaration that exclusive possession is not given cannot prevent the arrangement from constituting a tenancy if that is it its true effect; and the parties referred in the skeleton arguments to Family Housing Association v Jones [1990] 1 WLR 779 at 788 per Balcombe LJ with whom Farquarson LJ agreed.
12. Fourthly, exclusive possession means the ability to exclude all persons, including the landlord, from possession save in so far as the landlord is exercising a right of re-entry conferred by the agreement. This meaning is attributed to exclusive possession by Lord Templeman in Street v Mountford at 816C-E, where Lord Templeman says this:

"The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in the real sense his land albeit temporarily and subject to certain restrictions. A tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair."

13. I now turn to the judgment of His Honour Judge Rich QC. First the judge stated that clause 8 indicates the intention of the parties and it is not to be assumed that the parties failed in that intention. Next the judge said that the need to express clause 8 raises a question as to the effect of the agreement which has been made. Citing Hill & Redman on Landlord and Tenant, he said that the question is one of substance and not of form, and that the court had to look at the transaction as a whole. The judge compared clause 7 with the clause considered by the Court of Appeal in Shell-Mex and BP Ltd v Manchester Garages [1971] 1 WLR 612 at 616. The relevant clause was a provision under which the occupier agreed:

"'Not to impede in any way the officers, servants or agents of the company in the exercise by them of the company's rights of possession and control of the premises and in particular to give all reasonable assistance and facilities to such officers, servants and agents for the alteration at any time of the layout, decoration or equipment of the premises'."

14. The opening words were thus identical to clause 7 in this case, except that the words "the rights of ... control" do not appear and that the obligation in Shell to give assistance and facilities was preceded by the words "in particular".
15. In the Shell case the Court of Appeal held that the agreement was a licence. The grounds relied upon by Lord Denning MR (that is, that it was a personal privilege and that exclusive possession was not a decisive factor) were later criticised by Lord Templeman in Street v Mountford. However, the analysis of Buckley LJ was not subject to this criticism. The judge cited a passage in the judgment of Buckley LJ. It was noted that in Shell-Mex the relevant clause gave rights of control to the landlord but, in the judge's view, this was not essential because the retention of possession would in any event give the right to control the premises. The real question was whether the landlord had retained possession, as opposed to merely reserving rights of entry.
16. The judge also considered the judgment of the Court of Appeal in Esso Petroleum Co Ltd v Fumegrange Ltd [1994] 46 EG 199 where the Court of Appeal held that the agreement was a licence because of extensive rights of control which the agreement gave the landlord over the premises. The judge held that in the present case, clause 7 stated that NCP was not to interfere with the landlord's right to possession and that NCP was to give such assistance and facilities in connection with resurfacing and so on. The judge held that this latter obligation was a separate and additional obligation.
17. The judge then proceeded to examine the agreement as a whole to see whether the second limb of clause 7 showed that the landlord had not in fact retained the right to possession. The judge then turned to consider a number of clauses in the agreement. He noted that clause 3(13) was drafted as a covenant by NCP and not as the reservation of a right by the landlord. The judge considered that the degree of control retained by the landlord over the premises was very small. However, the crucial question was whether the landlord gave NCP a right to keep the landlord out. He held that none of the clauses in the agreement was misleading, and on this basis distinguished Dellneed v Chin [1987] 1 EGLR 75, a decision of Millett J (as he then was). He noted that the NCP's rights were expressed as obligations rather than as rights. He accepted that the imposition of obligations had to confer some right to enter and occupy the premises. However, there was nothing to show that such a right of possession was to be an exclusive right of possession.
18. He then turned to clause 3(9) and (10). He held that 3(9) suggested that the landlord might have some liability and that this was a pointer against the grant of exclusive possession to the NCP. Clause 3(10) did not require more than payment for security arrangements and moreover there was no use of the landscaped areas envisaged by the agreement. He rejected the argument that, because by implication the landlord must have the right to carry out repairs which NCP had not covenanted to do, the landlord could not have granted exclusive possession since the NCP had agreed to be responsible for most of the repairs.
19. The judge thought that the critical test might be whether NCP could keep the landlord out if its agents sought to park there without paying. The landlord had the right to 40 free places and it was arguable that it would be inconsistent with this provision for the landlord to claim more spaces. But the judge said that that conclusion depended on what was the grant. The judge held that moderate use of the car park by the landlord would not be inconsistent with the commercial motive of the agreement. If the landlord abused the right, then NCP could terminate the agreement. He thought that if the landlord's agents sought to use the car park, they would be expected to identify themselves to the attendants and would not expect to be charged. Tested in that way, he saw no reason to construe the agreement other than as a licence as it purported to be.
20. I now turn to the parties' submissions. Mr John Furber QC, for the appellant, makes the following submissions. If the landlord has a right of control over the premises, this would be inconsistent with the grant of exclusive possession and a tenancy. He cites Esso Petroleum v Fumegrange Ltd [1994] 2 EGLR 90 at 93, where the court found that there was a very significant degree of control over the premises and, additionally, over the way in which the tenant conducted his business, and he sought to distinguish the situation in this case.
21. He contends that the agreement, properly construed as a whole, amounted to a tenancy. NCP had the right to enter and occupy the premises. NCP had the right to run the car park business and it had the right to control the premises. It had control and responsibility for the business carried on there. He relied on clause 3(13) for the provision of 40 free car parking spaces. This would not have been necessary if the landlord had retained the right of control. Clause 7 was also important. This contained no reference to such rights of control as was to be found in the Shell case. Under clause 7 there was an express obligation to give assistance on a temporary basis and for specified purposes. This suggests that the first limb of clause 7 is no more than an assertion of exclusive possession which should be disregarded. Secondly, clause 7 is in effect a reservation of a right which, on Mr Furber's submission, is inconsistent with the retention of possession.
22. Clause 8 could be disregarded as a statement of intent and the judge failed to realise that clause 7 and clause 3(13) were in reality merely reservations of a right of re-entry. Moreover, he wrongly gave weight to the form of the agreement and it is simply contrary to commercial reality to conclude that the landlord could claim further free car parking rights. So the second limb of clause 7 was the reservation of a right of re-entry, and in all the circumstances the agreement should be construed as granting exclusive possession to NCP.
23. We did not call on Mr Nigel Thomas for the landlord. However, in his skeleton argument he made a number of submissions as follows. He sought to uphold the judge's approach. He submitted that there were a number of pointers against exclusive possession. As regards the landlord's landscaped areas, NCP had only an obligation to maintain these; no use of these areas was envisaged. Clause 3(9), on insurance, was another pointer. There was no reservation of a right of re-entry, no covenant of quiet enjoyment, no right of re-entry for a breach and no reservation of any other right of re-entry. Clause 7, on Mr Thomas's submission, was not a reservation of a right of re-entry: the landlord is stated to have possession throughout and what NCP agreed to do was to provide assistance. Mr Thomas submitted that there is no ambiguity about the right of possession. The landlord might genuinely want to inspect the state of the premises. He submitted that very similar wording was considered in the Shell and Esso cases and held not to be inconsistent with licenses in both cases. The second limb of clause 7 merely regulates the way in which the landlord is to carry out works of repair. It is not the reservation of a right of re-entry because the clause proceeds on the basis that the landlord has a right of possession. There is no right of re-entry reserved: see, for example, clause 3. That permission, he submitted, is distinguished from the Dellneed case. He submitted that clause 3(13) was also not the reservation of a right of re-entry. He submitted that the judge's approach to further free parking over and above the 40 spaces was correct.
24. I will now turn to my conclusions. In my judgment the judge came to the correct conclusion on the construction of the agreement as a whole and accordingly this appeal should be dismissed. I will set out my reasons. There is virtually no challenge to the judge's statement of the relevant legal principles. In addition, I have proceeded on the basis that the question before the court is whether there was exclusive possession granted to the tenant in the sense explained by Lord Templeman, that is, a right to keep out strangers and a right to keep the landlord out unless the landlord was exercising a limited right reserved by the agreement to enter for maintenance and repair.
25. I have come to the conclusion that the judge was correct on the interpretation of the document as a whole. (It was not submitted that there were any further circumstances which would be relevant in this case.) The declaration in clause 8 does not in itself make the agreement a licence. Mr Furber goes further: he submits that the correct approach to that clause is that it is not germane at all. This contrasts with the judge's approach, which was in these terms. At page 4 of his judgment, having set out clause 8 the judge said this:

"This indicates the intention of the parties and it is not to be assumed that they failed in such intention, although the need to express it raises a question, and that is, what is the effect of the agreement which they actually made and not what was it that they expressed themselves as intending to make."

26. Mr Furber submits that Street v Mountford made such a declaration irrelevant, and for that purpose he relied on a passage from Lord Templeman's speech, set out above, in which Lord Templeman says that "the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent." The court must, of course, look at the substance but as I see it it does not follow from that that what the parties have said is totally irrelevant and to be disregarded. For my part, I would agree with the judge that some attention must be given to the terms which the parties have agreed. On the other hand it must be approached with healthy scepticism, particularly, for instance, if the parties' bargaining positions are asymmetrical.
27. The parties' declaration is not determinative. That is clear from the passage in Lord Templeman's speech, and also from an earlier passage in Lord Templeman's speech at 819, where Lord Templeman says this:

"Both parties enjoyed freedom to contract or not to contract and both parties exercised that freedom by contracting on the terms set forth in the written agreement and on no other terms. But the consequences in law of the agreement, once concluded, can only be determined by consideration of the effect of the agreement. If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence. The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade."

28. So the court must look to the substance and not to the form. But it may help, in determining what the substance was, to consider whether the parties expressed themselves in a particular way. Of course I bear in mind in Street v Mountford that the apparent effect of an agreement which, it was common ground, conferred exclusive possession on the occupier, was to create a tenancy on that ground. It would in my judgment be a strong thing for the law to disregard totally the parties' choice of wording and to do so would be inconsistent with the general principle of freedom of contract and the principle that documents should be interpreted as a whole. On the other hand, I agree with Mr Furber's submission that it does not give rise to any presumption. At most it is relevant as a pointer.
29. While this declaration is not, of course, determinative, as I have explained, the court, it seems to me, must proceed on the basis that where two commercial parties have entered into an agreement of this nature, calling it a licence, they have received appropriate advice, they were aware of the importance of the term and they were intending to enter into such an agreement with an appreciation of its significance. I also bear in mind that there has been no suggestion that any of the terms of this agreement constitute a sham, in the sense that they were never intended to be acted upon as a result of some other agreement between the parties.
30. Under the agreement, the landlord retained a certain amount of control over the way in which the NCP conducted its business. However, I accept Mr Furber's submission that the rights of control were not so substantial as to have a determinative effect on the true interpretation of this document. I would accept that they go no further than would normally be expected of a tenancy. The agreement, for instance, as to the level of parking charges seems to me to be supportive of the rent provisions, which enable the landlord to take some share in the profits from the car park.
31. Next, the judge attached some significance to clause 3(9), clause 3(10) and clause 3(6). Clause 3(9), dealing with insurance, shows that the landlord had an interest for which he desired to arrange insurance, for instance in relation to third party liability. In a tenancy agreement some similar provision might well exist, so while this clause may be a pointer in the direction of a licence, it is not one which has great weight. So far as 3(10) is concerned, the judge held that this provision was merely an obligation to pay for security and therefore was not indicative of exclusive possession. It is not suggested that the security arrangements would be such as necessarily to exclude access by the landlord. So this clause again seems to me to be a pointer, but not one of weight, towards the conclusion which the judge reached. In the way it is expressed, it does not give any right to exclude the landlord.
32. As regards clause 3(6), as the judge pointed out, the occupier has no obligation other than to maintain this part of the premises. He is not expected to use them for any particular purpose, which must suggest that the parties contemplated that some other use of the premises would be made. That again is a pointer in favour of a licence rather than a tenancy. I also attach importance to the absence of a covenant for quiet enjoyment and the absence of an express right of re-entry. Such provisions would characteristically be found in a tenancy. (I leave to one side for the moment the argument that the second limb of clause 7 is on its true construction a right of re-entry.) I also attach significance to the fact that this agreement is framed as a series of obligations on the tenant. It does not start, as a tenancy would, with the conferral of an express right of occupation.
33. The appellant's two strongest points on the agreement seem to me to be clause 3(13) and the second limb of clause 7. Clause 3(13) provides for the landlord to have 40 free car parking spaces. The fact that the landlord is given that specific right is said to be inconsistent with his having retained the right to exclusive possession. The judge contemplated that the landlord would be entitled to occupy further car parking spaces free of charge. For my own part, I have some difficulty with that particular construction. Assuming, as I do, that the car park is one for which there is competition for spaces, it seems to me that on the true construction of the agreement as a whole, the landlord is only to have 40 car parking spaces free of charge and will then be charged the same rate as the general public for the rest. The number of free car parking spaces is relevant to the calculation of net profit under clause 5 of the agreement. On the other hand, that conclusion would only amount to a restriction on the landlord occupying the premises for the purpose of parking. There is nothing in clause 3(13) which would stop the landlord entering upon the premises for other purposes and, indeed, occupying the spaces in some other way apart from parking. Accordingly, clause 3(13) is not inconsistent with the landlord having granted only a licence. The judge regarded the question whether the landlord could occupy car parking spaces free of charge in excess of the 40 spaces allowed by clause 3(13) as potentially a critical test. I agree with the judge that this provision is not one which on consideration means that the agreement must be treated as a tenancy, although the reasons I have given differ from those which he gave.
34. The most important provision for present purposes is in my judgment the second limb of clause 7. Mr Furber makes a number of submissions about this. He points out that the second limb does not begin with the words "in particular", as was the case in the Shell-Mex case, and he attaches some importance to this. If those words had been included, the second limb would then clearly have been merely an example of the consequences of the landlord's rights of possession referred to in the first limb. Mr Furber also relies upon the fact that there is no reference to rights of control and indeed the control over the premises and the occupier's business is far less than the rights of control reserved in the Shell-Mex case.
35. Mr Furber's strongest argument is that the second limb of clause 7 confers a right on the licensor to enter on a temporary basis for the purpose of resurfacing and that this is in reality and in substance the reservation of a right of re-entry and therefore inconsistent with the conclusion that the landlord retained the right of exclusive possession. In my judgment, however, that is not the true interpretation of this provision. The obligation imposed upon the tenant is (subject to the proviso) to give "assistance and facilities" for the licensor's occupation of the licensed premises on a temporary basis for the purpose of resurfacing. It is important to analyse the reasons why the obligation was so framed. In my judgment, the following considerations are important. Firstly, resurfacing by the landlord is only to arise in exceptional circumstances. Secondly, in order to effect resurfacing it could not be expected that the landlord would want to occupy the premises otherwise than on a temporary basis, and indeed to do so would be to make the car park unprofitable. Thirdly and most importantly the landlord would require some assistance from the licensee in ensuring that when he did want to resurface, he could get access to parking spaces in order to resurface the car park. Therefore in my judgment the function of the second limb of clause 7 is to ensure the occupier's cooperation and for that reason NCP's obligation is to give reasonable assistance and facilities. On that construction, the second limb of clause 7 is not in substance a right of re-entry reserved to the landlord. It is in truth a perfectly understandable provision for the protection of the landlord and not a provision which indicates that NCP has a right to exclusive possession.
36. In conclusion, there is no express grant of a right of occupation to NCP. As the judge said, NCP clearly has some implied right to occupy the premises for the purpose of performing the obligations which are imposed on it under the agreement. However, the agreement states that it does not confer a tenancy interest and that the landlord has rights of possession: see the first limb of clause 7. Mr Furber's best points are his points on clause 3(13) and the second limb of clause 7. As I see it, for the reasons given above, clause 3(13) does not have the effect of excluding the rights of possession which the landlord is expressed as having under the first limb of clause 7, and that the second limb of clause 7 is not inconsistent with such rights of possession. The parties expressly provided in clause 8 that in effect the agreement should only amount to a licence, and the first limb of clause 7 proceeds on the basis that the landlord has rights of possession. I do not accept the submission that these provisions are to be disregarded on the basis that they merely attach labels, such as rights of possession, and that such labels are of no relevance. Moreover, as I see it, the conclusion that the agreement confers a licence and not a tenancy flows naturally from the agreement when it is read as a whole. In the circumstances and for those reasons, I would dismiss the appeal.
37. LORD JUSTICE BUXTON:I also would dismiss this appeal for the reasons given by my Lady.
38. I venture to add only a few words in relation to the argument that was addressed to us concerning the effect of the judgment of the House of Lords in Street v Mountford. Mr Furber's argument was that on the authority of Street v Mountford we should not merely ignore any part of the agreement that could properly be described as a label, or a simple assertion of the existence of a licence; but should also ignore those parts of the agreement that state the intention of the parties as to the creation of a tenancy or a licence (in this case the whole of clause 8), and also that part of the agreement that asserts an agreement about the licensor's right of possession. That is the first limb of clause 7.
39. It has to be borne in mind that in Street v Mountford it was conceded that the agreement in that case, on its true construction, did indeed confer exclusive possession of the premises upon Mrs Mountford. The argument before the House of Lords was rather that an occupier with exclusive possession, so agreed, could nevertheless still be a mere licensee and not a tenant. That latter argument failed, as did the further argument that, even in a case where exclusive possession was agreed to be conferred by the agreement, a tenancy and the existence of a tenancy could be excluded by a statement that the parties only intended to create a licence.
40. As to that latter argument, Lord Templeman said this at page 826G:

"My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent."

41. Such intention to grant exclusive possession has indeed to be demonstrated by the agreement. That is to say, one looks at the agreement as a whole and, looking at this agreement, it seems to me, as I understand it seems to my Lady, that clause 8, in the terms that it is set out, must be at least potentially relevant to the intent that is to be collected from the agreement as a whole. The parties say in clause 8 (and it is to be assumed that they were parties acting with the benefit of skilled legal advice, which fully understood the implications of the nature of a tenancy as set out in Street v Mountford): "This licence is not intended by either party hereto to confer on the Licensee any right or interest in the nature of a tenancy." The use of the phrase "in the nature of a tenancy" must in my judgement indicate that the parties had in mind the prime requirement for the existence of a tenancy delineated in Street v Mountford; that is to say, exclusive possession of the premises.
42. I cannot therefore agree that Street v Mountford requires an approach to this agreement as extreme as that which was argued for by the appellant. It must be relevant to look at the agreement as a whole and at what the parties have indicated that they seek to do; but bearing in mind also the important guidance given in Street v Mountford, that if the parties had in fact agreed upon exclusive possession, they cannot offset that agreement simply by labelling the agreement in a certain way or by saying that that is not what they have agreed.
43. I therefore, like my Lady, would look at this agreement as a whole and although, like her, I think it is possible and open to the court to reach the conclusion that she has without reference to the considerations that I have just set out, nonetheless I cannot accept the argument that those considerations must be put entirely out of our minds.
44. Apart from that point, I have nothing to add.
45. THE VICE-CHANCELLOR: I agree with both judgments and have nothing to add.
ORDER: Appeal dismissed with costs subject to detailed assessment. Permission to appeal to the House of Lords refused.