Car Park Services v Bywater Capital
| Jurisdiction | Northern Ireland |
| Judge | Horner J,Mr Spence |
| Judgment Date | 16 September 2016 |
| Neutral Citation | BT/43/2015 (Part 1) |
| Court | Lands Tribunal (Northern Ireland) |
| Date | 16 September 2016 |
1
BT/43/2015
IN THE LANDS TRIBUNAL FOR NORTHERN IRELAND
_________
IN THE MATTER OF THE BUSINESS TENANCIES (NORTHERN IRELAND)
ORDER 1996
________
BETWEEN:
CAR PARK SERVICES LIMITED
Applicant
-and-
BYWATER CAPITAL (WINETAVERN) LIMITED
Respondent
_______
Lands Tribunal – The Honourable Mr Justice Horner and
Henry Spence MRICS Dip.Rating IRRV (Hons)
_______
PART 1
HORNER J
A. BACKGROUND
[1] Car Park Services Limited (“the applicant”) occupies premises comprising a
car park located at Winetavern Street/Gresham Street, Belfast (“the reference
property”) and which covers an area of some 0.9 acres. By an agreement in writing
dated 1 December 1997 (“the agreement”) the applicant was granted the right to use
the reference property for the purpose of parking motor vehicles and for no other
purpose. This agreement, made between Eamon McCann as owner of the land and
the applicant, commenced on 1st December 1997 and was to continue four weekly
until revoked by either party giving four weeks’ notice.
[2] The applicant continued to occupy and operate its car parking business from
the reference property until sometime in 2008 at which time it became aware that
Mr McCann had acquired several derelict properties adjacent to the reference
property. Shortly thereafter there was an agreement between Mr McCann and the
applicant that the applicant could demolish the derelict buildings and occupy the
additional areas for its car parking business. This agreement was undocumented.
2
The planning application to permit the applicant to continue with the car parking
business on the enlarged site was made by Mr McCann and not the applicant.
[3] In 2009 the applicant carried out the works required to merge the additional
areas into its car parking operation. These works created a car park which was some
0.3 acres larger than the reference property (“the new car park”). The applicant has
occupied the new car park for its car parking business from 2009 to the present and
continues to do so.
[4] In or around 13 March 2013 Mr Gavin Clarke of Osborne King was appointed
fixed charge receiver (“the receiver”) of Mr McCann’s interest in the new car park.
Subsequently, on 12 February 2016, Bywater Capital (Winetavern) Limited (“the
respondent”) became the successor in title to Mr McCann and since that date has
held the new car park subject to the agreement.
[5] On 26 March 2015 the applicant had made a request to the receiver for a
further tenancy of the new car park, pursuant to Article 7 of the Business Tenancies
(Northern Ireland) Order 1996 (“the Order”). This request was for a tenancy of the
new car park commencing on 1st October 2015 for a term of 5 years.
[6] On 26th May 2015 the receiver served a notice in response to the request,
advising the applicant that he would oppose a tenancy application on the following
grounds:
“A (i) The tenant is not a tenant of a tenancy to
which the Business Tenancies (Northern Ireland)
Order applies.
(ii) The document described in the Tenant’s
Request for a New Tenancy as ‘the current lease’ is
not a lease and grants no estate in the property
therein described, rather it is a licence.”
[7] The receiver’s notice also made the following proposals:
“B Without prejudice to the grounds expressed at
A, in the event that a court of competent jurisdiction
determines that the current lease be construed as a
lease then the landlord would be willing to grant a
new lease on the following terms:
(i) The new lease will comprise only the property
in the current lease.
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