Edf Energy Networks (EPN) Plc (Claimant) (1) Boh Ltd (2) Layhawk Consultants Ltd (3) Salvatore Avanzato (Defendants)
| Jurisdiction | England & Wales |
| Judge | EDWARD BARTLEY JONES QC |
| Judgment Date | 04 December 2009 |
| Neutral Citation | [2009] EWHC 3193 (Ch) |
| Docket Number | Claim No : HC06C01758 |
| Court | Chancery Division |
| Date | 04 December 2009 |
[2009] EWHC 3193 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Edward Bartley Jones QC (sitting as a Deputy High Court Judge)
Claim No : HC06C01758
Mr Christopher Stoner (instructed by Eversheds LLP of Norwich) for the Claimant
Mr Jonathan Small QC (instructed by Ahmud & Co of Hendon) for the First and Second Defendants
Mr Avanzato in person
HEARING DATES
,16,17 and 20 July 2009 – Further written submissions 7 September 2009
I direct that no official shorthand note should be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
EDWARD BARTLEY JONES QCINTRODUCTION
The claimant in this Action (“EDF”) is the well known electricity supplier. It operates an important sub-station on Plot 2 off Fourth Way on the Wembley Stadium Trading Estate (“the Estate”). Between Fourth Way (now a public highway) and Plot 2 lie Plots 20 and 26. The First Defendant (“BOH”) is the freehold owner of Plot 20. The Second Defendant (“Layhawk”) is the freehold owner of Plot 26. Both BOH and Layhawk say that, in the events which have happened, EDF now has no rights in or over Plots 20 and 26 either so as to access Plot 2 or so as to maintain in position a substantial number of underground cables which have been in place for many years. The reality of this Action, therefore, is that it is an attempt by BOH and Layhawk to establish that they are entitled to “ransom strips” as between Plot 2 and Fourth Way. Whether they are correct in that contention depends on whether a 1953 Lease of (inter alia) Plot 2 continues in existence by virtue of the provisions of Part II of the Landlord and Tenant Act 1954 (“the 1954 Act”). EDF is now the freehold owner of Plot 2 but the Action proceeded on the basis that no easements of access or cabling were appurtenant to the freehold of Plot 2 over Plots 20 and 26. All, therefore, depends on whether the 1953 Lease continues in existence.
The Third Defendant (“Mr Avanzato”) appeared before me in person (although his Defence had been settled by counsel and he had formerly had solicitors acting for him). After the first day he left to attend to his business, leaving his wife to represent him. Both Mr Avanzato and his wife appeared bewildered, not merely by the complexity of the legal issues being aired but also by the very fact that Mr Avanzato was a defendant in this Action. It is quite clear that Mr Avanzato has no wish whatsoever to have a dispute with anyone. His only relevance to this dispute is that, as an adjunct to Plot 35 from which he operates his business, he occupies part of Plot 31. There are no cables under Plot 31 and there is no way whatsoever in which Plot 31 could be used to access Plot 2. It is very difficult, therefore, to understand why Mr Avanzato had to be a party to these very expensive High Court proceedings. I have the greatest possible sympathy for his predicament. Each of EDF, BOH and Layhawk should be aware that, on hand down, I will be anxious to give Mr Avanzato the maximum possible protection which I can in costs.
In order to understand the issues which arise it is necessary to understand the physical layout of the relevant parts of the Estate and to analyse the complex conveyancing history.
THE SITE
The Estate was, apparently, the site of the British Empire Exhibition in 1924. Thereafter the Estate was developed in a somewhat ramshackle way, with difficulties in identifying the true boundary line between various units. The fly parking and fly tipping which occurred on Plots 20 and 26 are illustrative of the locality – this was not a perfectly laid out Estate with clear boundaries. It was not an Estate maintained in pristine condition.
In 1953 EDF's predecessor in title (Eastern Electricity Board) took a lease of Plots 2, 26 and 31 for the purposes of erecting the sub-station. The lessor was The British Transport Commission which was the freeholder of a substantial area of land on the Estate, including not merely the demised plots but also Plot 20 and Fourth Way.
The physical layout of the plots demised can only properly be understood by reference to a plan. In giving a verbal description I shall, of necessity for ease of exposition, overly simplify and engage in inaccuracies. None of these simplifications, and none of these inaccuracies, affect the substantive issues in this Action.
Plot 2 can best be imagined as a rectangle with the short sides of the rectangle running north – south and the long sides of the rectangle running west – east. It is by far the largest part of the land demised by the 1953 lease. To the north of the rectangle lies Plot 31, a small sliver of land running the whole length of the long rectangular side of Plot 2. To the south of Plot 2, again running the whole length of the long rectangular side of Plot 2, is Plot 26. This is a somewhat wider area of land than Plot 31, the width being approximately 13 foot. Each of Plots 31 and 26 are long thin rectangles whose western and eastern boundaries form a straight line with the western and eastern boundaries of Plot 2. Between Fourth Way and Plot 26 is another thin area of land (Plot 20) widening at its eastern end, so that its shape, to the extent that it is co-extensive with the southern boundary of Plot 26, is a rhomboid. In fact Plot 20 appears to extend to the west, beyond the western boundary of Plots 2 and 26. To the north of Plot 31 are various other Plots which comprise industrial units (including Plot 35 – Mr Avanzato's plot) which abut the northern boundary of Plot 31.
THE LEASE
By Lease dated 20 February 1953 (“the Lease”) The British Transport Commission demised to Eastern Electricity Board Plots 2, 26 and 31. They were described as comprising 2600 square yards (or thereabouts) and the term was 42 years from 24 June 1952. The rent reserved was £25 per annum, payable by equal quarterly instalments.
The Lease was granted, on its express terms, in consideration of the erection by Eastern Electricity Board of the sub-station. The parcels clause of the Lease granted the following rights to Eastern Electricity Board:-
“Together with a right of way (in common with the Commission and the occupiers of the adjoining and neighbouring premises) at all times and for all purposes necessary for the enjoyment of the demised premises with or without vehicles over and along the Commission's roads and on foot only over and along the Commission's paths as provided from time to time between Wembley Hill Road and the demised premises And Together Also with full right and liberty for the Lessees to lay maintain inspect renew use alter and remove electric cables and lines and conduits or pipes for containing the same where necessary under the Commission's said roads and paths along such route or routes between Wembley Hill Road and the demised premises as may be agreed between the Commission and the Lessees and to break up the surface thereof so far as necessary from time to time for the purpose of relaying repairing maintaining altering and removing the said electric cables and lines and conduits or pipes such right to be exercised on such terms and conditions as may from time to time be agreed between the Commission and the Lessees (all which rights are together hereinafter referred to as “the said rights”) Provided that the Commission may close any such road or path on substituting another similar road or path therefor”.
The precise status of Plot 20 as at the date of the grant of the Lease is unclear – in that it is unclear whether, at that date, it formed part of the Commission's roads. Nevertheless, it is easy to see why the easements as granted by the Lease should have subsisted over Plot 20 – and the contrary was not argued before me.
The Lease also contained the following provisions :-
(1) a covenant by the lessee (clause 2(6)) not to erect anything upon the demised premises except an electricity sub-station;
(2) a covenant by the lessee (clause 2(7)) not to use the demised premises for any purpose other than as an electricity sub-station;
(3) a standard form proviso for re-entry in the event of the yearly rent, or any part thereof, being in arrear for 21 days (whether legally demanded or not).
THE SUB-STATION
The sub-station was duly constructed following grant of the Lease. It was constructed entirely on Plot 2 and surrounded by security fencing. It is clear that this security fencing enclosed only Plot 2, so that Plots 26 and 31 were outside the security fencing. The sub-station functions as an enormous fuse box. Electricity enters at 33kV and is transformed down to 11kV. It is then placed into many different circuits to serve the local area (so that if there is a fault on one circuit then the other circuits continued to function). In 1987/88 major improvement works were carried out to the sub-station. A new switch-house was built (to supplement the existing building) and the existing security fencing was replaced with new palisade fencing. This new fencing still enclosed only Plot 2 so that Plots 26 and 31 were outside the security fencing.
I was shown various cable plans. It can easily be deduced from those plans that, from its initial construction, the primary route for cables to enter and leave Plot 2 was through and across Plots 26 and 20. No cables were laid on Plot 31. The new switch-house erected in 1987/88 has cables running to it which pass through and along Plots 26 and 20. That the British Transport Commission was content with this arrangement is undoubted. There are before me numerous wayleaves and other agreements whereunder the British Transport Commission consented to extensions of the cabling system (as...
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