Scottish courts debate contaminated land

The Inner House of the Court of Session has reversed an earlier decision of the Outer House, concerning the ability of a commercial landlord to carry out intrusive site investigations on potentially contaminated land.

The Outer House had held that a phrase in a commercial lease entitling the Landlord “to enter upon the premises generally to inspect and examine the same to view the state of repair and condition” was sufficient to cover the right to sink boreholes in order to ascertain whether soil pollution had occurred. However, the Inner House did not agree.

The Inner House held that although the lease entitled the landlord to enter the premises “to inspect and examine the same to view the state of repair and condition”, there was no obligation to do so in such a way as to cause the least practicable disturbance to the tenant, nor was there any obligation to make good any damage caused.

In light of this fact, the Court considered that it had not been envisaged or intended that the exercise of the landlord’s right of inspection would cause any material disturbance to the tenant or would result in any material damage to the premises.

The Court also held that the wording of the lease indicated that the landlord was only entitled to inspect and examine the premises in order to view their state of repair and condition, and that the word view concerned only matters which were observable as distinct from matter which required more intrusive investigation.

Accordingly the Court has held that the language used in the lease was insufficient to cover the intrusive site investigations proposed. It was the Court’s view that where the parties had intended that the landlord should be entitled to interfere with the tenant’s possession of the premises to the extent referred to, it would have expected to see a much clearer indication to that effect in the lease.

The judgement of the Inner House, together with the earlier judgement of the Outer House, is available below:-

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