British Malleable Iron Company Ltd v Revelan (IOM) Ltd and Another
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] EWHC 1954 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: 3BM30026 |
| Date | 16 July 2013 |
[2013] EWHC 1954 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: 3BM30026
David Stockill (instructed by SGH Martineau LLP) for the Claimant
Martin Hutchings QC (instructed by DLA Piper UK LLP) for the Defendants
Hearing dates: 11 June 2013
The defendants apply for summary judgment on the whole of the claim against them on the basis that the claimant has no reasonable prospect of success if the matter were to go to trial and there is no other compelling reason to allow it to do so. That claim is for a declaration as to the construction of a right of way over Vernon Road, Halesowen which is a private road owned by the claimant and forms the only vehicular access to an industrial estate called Acorn Park, of which the defendants own the freehold. The claimant alleges that use made by CES (UK) Ltd, a tenant of the defendants by virtue of a lease date 6 February 2013, is outside the purposes permitted on the true construction of the deed of grant of the right of way and/or excessive in any event, and seeks an injunction to restrain that use, and damages. There are factual disputes as to the extent of that use and the exact nature of CES's business, and also as to the factual matrix against which the language of the deed of grant is to be construed, so that the defendants must satisfy me that the claim is bound to fail even if these matters are taken at the strongest position in favour of the claimant that may reasonably be established at trial on its evidence and pleaded case.
Vernon Rd is in an old industrial area of Halesowen, but has residential housing nearby. The defendants' right of way is given by a Deed of Grant ("the Grant") dated 3 April 2009 (bundle 1/ tab 12/p6), superseding an earlier deed dated 23 July 1971 ("the 1971 Deed") in favour of the defendants' predecessors in title, GE Bissell & Co Ltd. Prior to 2009 what is now Acorn Park was a factory site and Vernon Rd was apparently a badly made up track with a potholed surface. The Grant was agreed in the context of a planning application made by the defendants to redevelop the Acorn Park site into 12 units for sale or letting, which involved creation of a new access via Vernon Rd. The commercial deal between the parties involved the defendant making up the surface of Vernon Rd to a proper standard for access to the new estate and the installation of security gates across the road which would be closed (to put the matter neutrally) outside business hours but remotely controlled by a security company so that access could be obtained by occupiers of Acorn Park and various other premises bordering Vernon Rd authorised by the claimant.
The material terms of the Grant (in which the claimant was referred to as "the Owner" and the defendants as "the Grantee") were as follows:
i) the rights granted ("the Rights") were set out in schedule 3, including:
"… the right for the Grantee and its successors in title and those authorised by it or them in common with the Owner and other persons having the same right to … pass with or without vehicles over and along [Vernon Road] to and from the public highway known as New John Street at all times to gain access to and egress from [Acorn Park]"
ii) Clause 2.2(c) provided that the rights were granted:
" only for so long as [Acorn Park] is used for the purposes of industrial units or for such other purpose as the Owner shall consent to[,] such consent not be unreasonably withheld where the proposed use will not result in an increase in traffic above that which would be produced where [Acorn Park] is used for the purposes permitted by the Planning Permission"
iii) Schedule 4 set out covenants given by the Grantee, including the obligation to carry out "the Required Improvements" and:
"4. Not to cause any nuisance or disturbance to the Owner or occupiers of [Vernon Road], or of any neighbouring land, or to any other person entitled to the Rights in common with the Grantee…
9. Keep the Gates closed (other than for access and egress) between the hours of 18.00–06.30 Monday-Friday (inclusive) and at all times on Saturdays, Sundays and public bank holidays (such hours and days being subject to change at any time by the Owner upon written notice to the Grantee)
10. Not allow [Vernon Road] to be used by (1) commercial vehicles of more than 44 tonnes laden (2) tracked vehicles of any weight or (3) cranes of any weight without the prior written consent of the Owner such consent not to be unreasonably withheld or delayed."
iv) The "Required Improvements" were defined as:
" 1. Creating a new access from [Vernon Road] in compliance with planning permission number PO6/1191… as applicable at the date hereof ("the Planning Permission")
2. Installing new fully functional electronically operated Darfen cantilever sliding security gates between the points marked A and B on the Plan which shall include two separate intercoms to remote operators for each of the Owner and Grantee and security cameras…" [these being the "Gates"]
v) Clause 6 contained an indemnity as follows:
" the Grantee covenants with the Owner on behalf of itself and its successors in title for the benefit of [Vernon Road] to keep the Owner indemnified at all times from and against any Losses suffered by the Owner in the exercise of the Rights which shall for the avoidance of doubt include any Losses suffered by the Owner as a result of any breach of the provisions of the Planning Permission."
vi) By clause 14 any rights the defendants previously had over Vernon Road pursuant to the 1971 Deed were extinguished. That deed had provided for a right of way (Tab 19) in favour of what was referred to as "the second property". That was defined by reference to a plan which is not included in the bundle, but I assume that it included all or at least part of what is now Acorn Park. The terms of the right of way were expressed very widely and without any restriction as to the use to which the grantee's land was put as follows:
"… at all times hereafter by day or night to pass and repass over and upon Vernon Road aforesaid … with or without vehicles of any description for all purposes in connection with the use and enjoyment of the second property but not for any other purpose whatsoever."
The essence of the present dispute is whether the use that CES is making of the unit leased to it is or is not "use for the purposes of an industrial unit" as referred to in clause 2.2(c) of the Grant. If not, the claimant says that such use is unauthorised and liable to be restrained. Mr Stockill confirmed on instructions that it is not his client's case that if the use is outside the purpose envisaged by clause 2.2(c) the effect of that clause is to terminate the right of way entirely.
Mr Hutchings made the point that insofar as the relief sought by way of declaration, the court will not normally make a declaration unless all the persons potentially interested in the outcome are either before the court or have had the opportunity to appear. Such persons clearly include CES, and yet despite the point being flagged up at a previous hearing the claimant has taken no steps to join CES. It seems to me also that any other occupier of Acorn Park is also potentially interested since he too would have a right of way over Vernon Road derived from the defendants' rights. Arguably, the occupiers of other properties with concurrent rights of way over Vernon Road derived from the claimant may also be interested in the outcome since it is the claimant's case that the excessive and/or unauthorised use by CES interferes with their own use of the road and the security of their properties. I accept that point, but it seems to me that it is not sufficient on its own to dispose of the matter on summary judgment since it is a procedural matter that could in principle be resolved before any eventual trial.
Mr Hutchings further submitted that in so far as damages and an injunction are sought against the defendants, there is no allegation of unauthorised use or conduct amounting to a nuisance by the defendants themselves, and that in so far as complaint is made of use by CES, the defendants are only the landlords of CES and cannot be held responsible for unauthorised or excessive use of the right of way by their tenant unless they have expressly or impliedly authorised that use, and that on the evidence the defendants have done all they can to ensure that CES comply with the terms of the Grant, as properly construed. That too is not a basis for resolving the claim summarily since it seems to me to raise issues of fact which cannot be determined at this stage, in that the claimant disputes the evidence as to what the defendants have done in relation to CES's activities.
The pleaded case is that "CES operates, or apparently operates, a wholesale and/or retail, warehousing and supply business involving the delivery of car parts at short notice to local garages and other retailers and also for sale on the premises to members of the general public. It operates six days a week including a Saturday." Such use "necessitates almost continuous use in and out of its premises (and therefore through the gates) by vans on a very regular almost continual basis. During such times the gates are more open than closed (and opening and closing very frequently)" (Amended Particulars of Claim paras 10–11). The pleading sets out the construction that the claimant says should be put upon the Grant by cross-reference to the terms of the planning permission and various categories of use prescribed for the purposes of planning law. At paragraph 13(2)(c) "the...
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