Batley Pet Products V. North Lanarkshire Council
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Bonomy,Lord Hardie |
| Neutral Citation | [2012] CSIH 83 |
| Date | 07 November 2012 |
| Docket Number | A229/10 |
| Court | Court of Session |
| Published date | 07 November 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Clarke Lord Hardie Lord Bonomy | [2012] CSIH 83 A229/10 OPINION OF THE COURT delivered by LORD BONOMY in the reclaiming motion L BATLEY PET PRODUCTS LIMITED Pursuers and Respondents; against NORTH LANARKSHIRE COUNCIL Defenders and Reclaimers; _______ |
Pursuers and respondents: Logan; Balfour and Manson LLP
Defenders and reclaimers: Lindsay QC; Ledingham Chalmers LLP7th November 2012
Background and issues
[1] Contractual arrangements between the parties relating to the occupation by the reclaimers of premises at One/Three South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld were regulated by a number of documents. In June 2007 the respondents acquired the tenant's interest in a lease ("head‑lease") of the premises. The premises had been sub‑let to the reclaimers. The respondents thus acquired the role of landlord or mid‑landlord in the sub‑lease to the reclaimers. The sub‑lease was originally due to expire in February 2008 but was continued by a minute of variation of lease so that the expiry date was postponed until 18 February 2009. On 30 December 1998 the respondents' predecessor as mid‑landlord entered into a minute of agreement with the reclaimers which regulated the terms on which the mid‑landlord consented to the carrying out of certain works to the premises by the reclaimers under the sub‑lease.
[2] These proceedings relate to the obligations upon the reclaimers in relation to dismantling and removing the works authorised in the minute of agreement and reinstating the premises on the expiry of the sub‑lease. The first issue is whether oral notice by the respondents requiring the reclaimers to reinstate the subjects was sufficient to trigger the reclaimers' obligation to reinstate. In the event that that is determined against the respondents, there is a second issue as to whether the reclaimers failed to comply in certain respects with a general maintenance, repairing and renewal obligation under the sub‑lease.
Form of notice required
[3] We turn now to address the first issue. In addition to prescribing the obligations of the reclaimers in relation to the alterations to the subjects to which it related, the minute contained the following provisions:
"5. Obligations of Tenant Incorporated into Lease
That during the execution of the Works and when the same shall have been completed all the undertakings and obligations on the part of the Sub‑Tenant herein contained shall be deemed to be incorporated in the Sub‑Lease and the power of irritancy contained in the Sub‑Lease shall be construed and have effect accordingly.
...
7. The Lease
Excepting so far as amended hereby the parties ratify and confirm the whole terms of the Sub‑Lease."
The obligation upon the appellants to reinstate the subjects at the end of the sub‑lease was set out in clause 2.5 of the minute of agreement as follows:
"2. The Sub‑Tenant's Obligations
...
2.5 By the expiration and sooner determination of the period of the Sub‑Lease (or as soon as the licence hereby granted shall become void) if so required by the Mid‑Landlord and at the cost of the Sub‑Tenant to dismantle and remove the Works and to reinstate and make good the Premises and to restore it to its appearance at the date of entry under the Sub‑Lease, such reinstatement to be carried out on the same terms (mutatis mutandis) as are stipulated in this Licence with respect to the carrying out of the Works in the first place (including as to consent, the manner of carrying out works, reinstatement, inspection, indemnity, costs and otherwise)."
To establish how effect was to be given to the condition that reinstatement depended upon the sub‑tenant being "so required" by the mid‑landlord requires reference to both the sub‑lease and the head‑lease.
[4] Clause 13 of the sub‑lease was as follows:
"13. Notices
The provisions for notices contained in Clause 5.8 of the Lease shall apply also under the Sub‑Lease as if 'the Mid‑Landlord' had been substituted for 'the Landlord' and 'the Sub‑Tenant' had been substituted for 'the Tenant'."
Clause 5.8 of the head‑ lease was as follows:
"Notices:
5.8
Any notice, request, demand or consent shall be in writing."
Clause 5.8 went on to specify what in various circumstances would amount to sufficient service and sufficient proof of service of a notice.
[5] It was conceded by counsel for the respondents, appropriately in our opinion, that intimation by the respondents that they required reinstatement in terms of the minute of agreement had to be given before expiry of the sub‑lease. It was also a matter of concession that the only indication given by the respondents that might be construed as a requirement had been given orally. The Temporary Lord Ordinary concluded that an oral requirement was sufficient. She decided that, unless the minute of agreement provided for a specific amendment to or departure from the terms of the sub‑lease, the general provisions of the sub‑lease continued to regulate the relationship between the parties. It followed, in her opinion, that, if a notice required to be served in terms of the minute of agreement, it might well be that the notice provisions of the head‑lease, incorporated into the sub‑lease, would apply. She then decided that clause 2.5 of the minute of agreement did not specify the means by which the appellants could be required to remove the works because it made no mention of a notice. She concluded her judgment on this issue in these terms:
"[19] In my opinion, it cannot be said to be a mandatory term of the minute of agreement that the mid‑landlords convey in writing to the sub‑tenants the requirement to remove the works unless it can be implied that service of some form of notice or request is part of that term. If written notification of the type envisaged in clause 5.8 of the head‑lease cannot be so implied, then clause 2.5 would seem to me to permit the pursuers to offer to prove that they required the defenders to remove the work by conveying that to them orally. I note in this context that the notice provision in clause 5.8 of the head‑lease contains no general words suggesting that any communications between the relevant parties required to be in writing. In accordance with the maxim expressio unius est exclusio alterius intimation that does not require to be by notice, request, demand or consent does not on the face of it require to be in writing because only those specified types of intimation fall within the specific wording of clause 5.8.
[20] It seems to me that the defenders' argument is predicated upon a notice being necessary for the purposes of clause 2.5. However, there is nothing in that provisions of the minute of agreement to support the contention that something formal was necessary before the sub‑tenants can be required to remove the works. For that reason I do not accept the submission that the notice provisions of the lease automatically apply to the 'if so required' provision of clause 2.5."
[6] It was the submission of Mr Lindsay QC for the reclaimers that the Temporary Lord Ordinary had erred in concluding that written notice was not required. The minute of agreement amended the sub‑lease to enable alterations to be made, but also ratified the provisions of the sub‑lease, including...
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L Batley Pet Products Ltd v North Lanarkshire Council
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