Car Park Services Limited v Bywater Capital (Winetavern) Limited
| Jurisdiction | Northern Ireland |
| Judge | Stephens LJ |
| Neutral Citation | [2018] NICA 22 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 03 May 2018 |
1
Neutral Citation No: [2018] NICA 22
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE10519
Delivered: 3/5/2018
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
ON APPEAL BY WAY OF CASE STATED
________
Between:
CAR PARK SERVICES LIMITED
Appellant:
and
BYWATER CAPITAL (WINETAVERN) LIMITED
Respondent:
________
Before: Stephens LJ, McBride J and Sir John Gillen
________
STEPHENS LJ
Introduction
[1] Mr Eamon McCann (to whose interests Bywater Capital (Winetavern) Limited
has succeeded) as the owner of premises at Winetavern Street/Gresham Street,
Belfast, (“the car parking site”) entered into what was described by the parties as a
“licence” agreement dated 1 December 1997 (“the agreement”) with Car Park
Services Limited. In the agreement Mr McCann was described as the “Licensor” and
Car Park Services Limited as the “Licensee.” By virtue of the agreement the
“Licensor” permitted the “Licensee,” its servants and agents, the right to use the car
parking site for the purpose of parking motor vehicles. On 26 March 2015 Car Park
Services Limited, contending that the agreement created a tenancy rather than a
licence, requested a new tenancy under Article 7 of the Business Tenancies
(Northern Ireland) Order 1996 (“the 1996 Order”). The application for a new
tenancy was opposed on the ground, amongst others, that the agreement was not a
lease and did not grant any estate in the land, but rather was a licence. On 17 June
2015 under Article 10 of the 1996 Order, Car Park Services Limited made a tenancy
application to the Lands Tribunal (“the Tribunal”). The Tribunal directed that three
questions should be determined as preliminary issues of which the first was:
“Did the agreement create a lease or a licence?”
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The Tribunal having heard evidence in relation to this issue and having made factual
findings decided that the agreement was “a licence, not a lease.” Car Park Services
Limited requisitioned under section 8(6) of Lands Tribunal and Compensation Act
(NI) 1964 and the Tribunal stated a case for determination by the Court of Appeal as
to:
“… whether the Lands Tribunal were correct in
finding that the agreement in writing, for the
occupation by (Car Park Services Limited) of
premises comprising a car park located at Winetavern
Street/Gresham Street, Belfast, dated 1 December
1987 and entered into between Eamon McCann, as
owner of the said premises, and (Car Park Services
Limited) created a licence, and not a lease.”
[2] As the issue is whether the agreement created a licence or a lease and so that I
do not express any view at this stage as to the outcome I shall not refer in this
judgment to the parties as “Licensor” or “Licensee” but rather I will refer to Car Park
Services Limited as the appellant and to Bywater Capital (Winetavern Limited) as
the respondent.
[3] Mr Edwin Johnson QC appeared for the appellant, Mr Hanna QC and
Mr Stevenson appeared for the respondent. I am grateful to counsel for their
assistance.
The Background Facts
[4] The background facts are taken from the case stated and from photographs of
the car parking site.
[5] The carpark is a typical city centre surface carpark formed as a consequence
of the demolition of derelict buildings leaving available a flat open area. On three
sides the site is bounded by Winetavern Street, Gresham Street and North Street. It
is separated from the surface of these streets by the public pavements then by a
narrow low brick plantar which has been planted with grass. The plantar is on the
car parking site. There are also rows of bollards on the car parking site. By these
devices the only entrance and exit for vehicles is on Winetavern Street with that
entrance being controlled by a mechanical barrier adjacent to a ticket booth. There
is no fencing around those three sides of the carpark so that anyone can walk from
the pavement over the low grass area between the bollards on to or across the site of
the carpark. On its fourth side there are some existing three storey buildings. The
surface of the carpark is tarmac which is painted with white lines delineating the car
parking spaces. There are presently a row of signs along Winetavern Street with a
capital “P” and an arrow pointing towards the carpark together with a larger sign
3
with a capital “P” and the word “Entrance” together with an arrow pointing to the
entrance on Winetavern Street.
[6] The Tribunal found that at the time that they entered into the agreement the
appellant and Mr McCann were not “asymmetrical” in their bargaining power. The
company directors of the appellant included Mr McHugh, an accountant and Mr
O’Kane, a builder/surveyor who was experienced in running car parks. Mr McCann
is a well-known music promoter and property developer in Northern Ireland.
[7] Prior to entering into the agreement each of the parties had the opportunity to
take legal advice and the Tribunal found that both had solicitors, who are well
regarded, acting on their behalf. The court was informed that McCormick, O’Brien &
Co were then the solicitors for the appellant and that Philip Gallen was the solicitor for
Mr McCann.
[8] Mr McHugh knew prior to entering into the agreement that if the agreement
was a licence the 1996 Order would not apply. His fellow Director, Mr O’Kane,
proceeded on the basis that the agreement was a licence.
[9] Mr McCann knew that there was a difference between a licence and a lease.
However, he considered that after 18 months the licence became a lease and that there
was protection under the 1996 Order. The Tribunal considered that this was either a
result of him misunderstanding the advice given by his solicitor or his solicitor giving
incompetent advice.
[10] Mr McCann gave evidence that he did not use the car park to park his own
motor vehicle when he was in the vicinity unless he paid for a ticket. He considered
that “he could not be using it for my convenience.” The Tribunal noted that he had a
vested interest in the turnover of the car park as this was linked to the rent that the
appellant was required to pay although Mr McCann’s fee would have made no
difference. The Tribunal did not consider that Mr McCann’s use of the car park
provided any real clue as to the construction of the agreement given that he had little
need to use it and he either received incorrect legal advice or misunderstood that legal
advice.
[11] The car parking site as referred to in the agreement extended to 0.9 acres. The
appellant continued to occupy and operate its car parking business from the car
parking site from 1 December 1997 and still does so though the extent of the site
increased in 2008 – 2009. In 2008 the appellant became aware that Mr McCann
had acquired several derelict properties adjacent to what was then the car
parking site. Shortly thereafter there was an agreement between Mr McCann and
the appellant that the appellant could demolish the derelict buildings and
occupy the additional areas for its ca r parking business. This agreement was
undocumented. The planning application was made by Mr McCann and not by
the appellant. In 2009 the appellant carried out the works required to convert
the additional area into its car parking operation. These works
formed
a car
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