Energizer Supermarket Ltd v Holiday Snacks Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Burrows |
| Judgment Date | 09 May 2022 |
| Neutral Citation | [2022] UKPC 16 |
| Docket Number | Privy Council Appeal No 0035 of 2020 |
| Court | Privy Council |
[2022] UKPC 16
Lord Briggs
Lord Sales
Lord Leggatt
Lord Burrows
Lady Rose
Privy Council Appeal No 0035 of 2020
Privy Council
Appellant
Fyard Hosein SC Sasha Bridgemohansingh Aadam Hosein (Instructed by One Chancery Courtyard Chambers (Port of Spain))
Respondent
Christopher Sieuchand Sonnel A David-Longe (Instructed by Sinclair Gibson LLP (London))
The legal issues raised by this case involve equitable easements and the defence of illegality (both statutory illegality and common law illegality). The facts concern a gas pipeline that runs under what is now the land of Energizer Supermarket Ltd (“Energizer”), which is the defendant and appellant. That gas pipeline is being used to supply gas to Holiday Snacks Ltd, which is the claimant and respondent. The existence of that gas pipeline has been stymying Energizer's plans to construct a supermarket on its land.
A written agreement was made on 3 March 1986 (“the March agreement”) between two neighbouring landowners, Kiss Baking Co Ltd (“Kiss”) and Sookram Boodhai (“Mr Boodhai”). Kiss was the owner of the land at Pole No A54, El Socorro Rd, San Juan and Mr Boodhai was the owner of the land (“the Land”) at Pole No 54 on the same road. Under the written agreement (which was not made by deed), Mr Boodhai agreed to allow Omega Fabricon Ltd (“Omega”), on behalf of Kiss, to lay a two-inch gas pipeline, with a length of about 400 feet, under the Land for the benefit of Kiss. Mr Boodhai also agreed to allow any approved agent of Kiss to carry out any necessary repairs to the pipeline in the future. It was agreed by Kiss that all safety features required by the National Gas Company of Trinidad and Tobago Ltd (“NGC”) would be adhered to. The price payable by Kiss to Mr Boodhai under the agreement was $12,000 payable immediately on the completion of the laying of the pipeline. The agreement was signed on behalf of Kiss by its managing director, Mr Yip Choy.
By a written agreement dated 30 September 1986 between NGC and Kiss, NGC agreed to supply natural gas to Kiss (using the pipeline) subject to a number of conditions including that NGC would be the owner of the gas pipeline and metering facilities.
The gas pipeline was constructed under the Land by Omega who were paid to do so by Kiss. As provided for in the terms of the March agreement, Kiss paid the agreed sum of $12,000 to Mr Boodhai. The gas pipeline still runs under the Land. Its location is marked by yellow posts.
Although there is some ambiguity in the agreed statement of facts — and the Board has not been supplied with any relevant documents to resolve the ambiguity — it would appear, and shall be assumed, that in May 1992 Kiss transferred part of its business, including the relevant land and the rights and liabilities in respect of the pipeline, to its wholly owned subsidiary, Sweetheart (1989) Ltd. The name of that subsidiary was subsequently changed in April 1996 to Holiday Snacks Ltd (“Holiday Snacks”). Certainly, it has not been suggested by Energizer that, in so far as there is an equitable easement, it is Kiss, rather than Holiday Snacks, that is entitled to enforce that easement.
On 12 October 1993, under a deed of conveyance that was registered on 5 January 2004, Mr Boodhai sold the Land to Energizer. On 14 November 1994, Mr Boodhai informed Kiss by letter that he had sold the Land to Energizer and that the March agreement “is at an end”. In or around October or November 1994, Energizer had a survey carried out in respect of the Land in which the existence of the gas pipeline was reported. On 13 December 1994, Mr Boodhai signed a note indicating that he had informed Jerome Boodhoo (“Mr Boodhoo”), Energizer's managing director, of the existence of the gas pipeline prior to the conveyance of the Land from Mr Boodhai to Energizer.
On 12 June 1996 Energizer, through its attorney-at-law, called upon Kiss to remove the gas pipeline from the Land.
On 29 October 1997, Energizer's outline application for planning permission for the construction of a supermarket was refused because of the existence of the gas pipeline on the Land.
No licence for the laying of the gas pipeline was obtained from the relevant Minister by Kiss or Mr Boodhai (or by Holiday Snacks or Energizer) although, as we shall see, this is a requirement under the Petroleum Act. There is also no evidence that Omega, who were paid by Kiss to construct the pipeline, had obtained a licence under the Act.
By its (amended) writ of summons and statement of claim, dated 21 December 2006, Holiday Snacks brought a claim against Energizer seeking, inter alia, a declaration that Holiday Snacks' ownership of the Land is subject to an equitable “way leave” (which is a type of equitable easement so that we shall refer to it in this judgment as an equitable easement) in respect of the gas pipeline running through the Land; and an injunction to restrain Energizer from interfering with Holiday Snacks' use of the pipeline.
By its (amended) defence and counterclaim, dated 24 January 2007, Energizer seeks, inter alia, damages and a mandatory injunction for the removal of the gas pipeline on the basis that Holiday Snacks has no right to be using the Land for a pipeline because the March agreement was void for illegality, as contravening the Petroleum Act. Energizer also alleges that the agreement between Mr Boodhai and Kiss, even if valid, merely conferred a contractual licence on Kiss and, because that contractual licence was validly terminated by Mr Boodhai on 14 November 1994, neither Kiss nor Holiday Snacks, as the assignee of the contractual licence from Kiss, has any continuing right to use the pipeline.
The relevant statutory provisions concern the conveyance of land and the regulation of petroleum operations, in particular the requirement for a licence.
Under the Conveyancing and Law of Property Act (Trinidad and Tobago):
“ Conveyances to be by deed
10(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by Deed.
General words implied in conveyances
16(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”
Under the Petroleum Act (Trinidad and Tobago):
“ Interpretation
2(1) In this Act -
…
‘licence’ means a licence to engage in petroleum operations granted in accordance with this Act and of any Regulations;
‘natural gas’ means petroleum in the gaseous state;
…
‘petroleum operations’ means the operations related to the various phases of the petroleum industry, and includes natural gas processing, exploring for, producing, refining, transporting and marketing petroleum or petroleum products or both, and manufacturing and marketing of petrochemicals; …
…
Licences
6(1) Subject to this Act, no person shall engage in petroleum operations on land … unless he first obtains a licence as provided for in this Act or the Regulations.
(2) A person who contravenes this section is liable on summary conviction to a fine of five hundred thousand dollars and in the case of a continuing offence, to a further fine of fifty thousand dollars for every day during which the offence continues.
Licensee to negotiate for ancillary rights
25 Where a licence is granted and ancillary rights are required by the licensee, he shall, in accordance with any other written law relating to landholding, negotiate with -
(a) in the case of State Lands …, the Minister who is hereby authorised to act on behalf of the President for such purpose;
(b) in any other case, the person entitled to grant the rights for a grant of such rights.
Power to grant ancillary rights
26(1) Where any facility, right, or privilege is required in order that petroleum operations may be properly and conveniently carried out by a licensee, and the proper and efficient carrying out of petroleum operations is unduly hampered by the inability or failure of the licensee to obtain such right, facility, or privilege (in this Part referred to as an ancillary right), such ancillary right may, in the manner and subject to the provisions hereinafter appearing, be conferred on the licensee who is working or desirous of working them either by himself or through his lessees or assignees.
(2) In particular, but without prejudice to the generality of the foregoing provision, such ancillary rights include -
(a) a right to cut timber, rights of way and other easements …
Limitation on power of granting rights
27(1) No ancillary right shall be granted or acquired by a compulsory purchase Order under this Act unless it is shown that it is not reasonably practicable to obtain the right in question by private arrangement for any of the following reasons:
(a) that the persons with power to grant the right are numerous or have conflicting interests;
(b) that the persons with power to grant the right, or any of them cannot be ascertained or cannot be found;
(c) that the persons from whom the right must be obtained, or any of them, have not the necessary powers of disposition, whether by reason of defect in title, legal disability or otherwise;
(d) that the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable.”
Under the Petroleum...
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Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd
...[2016] UKSC 42, [2017] AC 467 (see the Board's judgment, on appeal from the Court of Appeal of Trinidad and Tobago, in Energizer Supermarket Ltd v Holiday Snacks Ltd [2022] UKPC 16 In this case, although there was some ambiguity in the submissions to the Board made by Ramesh Lawrence Mahar......