Gyle Shopping Centre General Partners Ltd As Trustee For And General Partner Of Gyle Shopping Centre Limited Partnership V. Marks And Spencer Plc
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2014] CSOH 59 |
| Court | Court of Session |
| Docket Number | CA190/13 |
| Published date | 25 March 2014 |
| Date | 25 March 2014 |
| Year | 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 59 | |
| CA190/13 | OPINION OF LORD TYRE in the cause GYLE SHOPPING CENTRE GENERAL PARTNERS LTD as trustee for and general partner of GYLE SHOPPING CENTRE LIMITED PARTNERSHIP Pursuer; against MARKS AND SPENCER PLC Defender: ________________ |
Pursuer: Walker; Gateley (Scotland) LLP
Defender: E Robertson; DWF LLP
25 March 2014
Introduction
[1] The pursuer is the owner of the Gyle Shopping Centre, Edinburgh. The defender is the tenant of subjects in the shopping centre which were leased to it in 1992 by the City of Edinburgh District Council ("EDC"), a predecessor in title of the pursuer. The pursuer avers that it has entered into an agreement with Primark Stores Ltd for the erection and leasing of a new retail store building which would abut the existing shopping centre and would be constructed on currently unbuilt-upon land including part of the car parking area. In this action the pursuer seeks declarator (i) that the defender has given its unqualified written consent to the use by the pursuer of this land for the construction of a new building to be leased to Primark; (ii) that it is entitled to construct the building and would not be acting unlawfully or in breach of the defender's lease in so doing; and (iii) that the defender would be barred from taking any action to prevent construction on the ground that there is absence of agreement complying with the terms of either the Requirements of Writing (Scotland) Act 1995 or the defender's lease. The defender contends that it has not given its agreement in probative writing to the construction of the building and accordingly that the pursuer is not entitled to commence construction. The matter came before me for debate of the parties' respective pleas to relevancy. It was agreed by the parties that if I were to find in favour of the defender on the issues debated, further procedure would be required in order to address the pursuer's case based on personal bar.
The defender's lease
[2] The lease by EDC in favour of the defender (who is referred to therein as "M & S") is for a period of 127 years from 1 October 1990. It was executed on 24, 26 and 27 February 1992 and recorded in the Register of Sasines on 23 March 1992, at a time when the site was still in course of development. It is an intricate document drafted with meticulous care and attention to detail, and provides much by way of context for the issues of interpretation that arise in these proceedings. It consists of three parts and a schedule. Part I contains recitals, definitions of 59 expressions to some of which I shall return, and a few general interpretative provisions.
[3] Part II, comprising only eight clauses, contains the operative provisions for the letting of land to the defender. Clause 2 states as follows:
"EDC hereby lets to M & S ALL and WHOLE the said subjects shown coloured blue on the Boundary Plan together with (a) the building(s) and structure(s) (or part(s) of building(s) and structure(s)) to be constructed thereon from time to time and (b) a one-third pro indiviso share of and in the Shared Areas; all subject to and with the benefit of the following terms and conditions of this Part II of these presents and also subject to (so far as comprising obligations on M & S or relating to the M & S Subjects), and with the benefit of, the terms and conditions set out in Part III of these presents."
Clause 6 made provision for the substitution by agreement of a redrawn Boundary Plan for the plan annexed to the lease. This reflected the fact that the lease was being executed at a time when details of the layout of the development had not been finalised. In due course, a revised Boundary Plan was indeed substituted by a Minute of Variation of Lease executed by the parties and recorded later in 1992. No further amendment has been made to the Boundary Plan.
[4] Part III is entitled "The Mutual Conditions". The context of this part was the intention of EDC and other parties, narrated in Recital C, that the shopping development should consist of three separate but connected buildings being (1) a retail store for M & S, (2) a retail store for Asda, and (3) a shopping mall between and directly adjoining these two stores to be let by EDC for multiple occupancy by retail traders. Provision was to be made in relation to each of the three buildings for possible future expansion within specified areas. Recital C also narrated the parties' desire that the site should include a petrol filling station for Asda, car parking spaces, roads, pedestrian routes, landscaped areas and other services and facilities. Recitals F, G and H stated:
"(F) It is necessary that M & S and Asda should each have (as pertinents of their respective Stores) interests in land in, and common rights to, parts of the remainder of the said development and the ground on which it is to be constructed;
(G) For the benefit of all of the parties hereto and their respective successors and the tenants or other occupants from time to time of the said property between the two Stores, and for the purposes of maximising and preserving the value and amenity of the asset to be produced by the said development (and any future redevelopment of the Site) and the value and amenity of the respective properties comprised and to be comprised therein it has been agreed that mutual obligations shall be imposed as hereinafter written so as to be binding on EDC and persons deriving right from them and also on M & S and Asda;
(h) These presents comprise the Lease in favour of M & S and incorporate the said mutual obligations. The Lease in favour of Asda is granted contemporaneously herewith and also incorporates the said mutual obligations."
[5] The Mutual Conditions begin with clauses (10 and 11) in terms of which the parties bind themselves to one another to implement and observe the provisions of Part III, to the intent and effect that M & S, Asda and EDC and its successors shall be entitled to enforce these provisions against one another. Clause 12 notes that the terms of Part III of the M & S lease and of Part III of the Asda lease are identical. The M & S lease was executed by Asda as well as by EDC and M & S; no doubt the same applied to the Asda lease. The tenant's interest in the subjects leased to Asda is now held by Safeway Stores Ltd, trading as Morrisons. Sub-clauses 13.1, 13.2 and 13.3 are in similar terms mutatis mutandis as regards each of the parties; by way of a representative example, Clause 13.3 provides:
"The rights and obligations of EDC under this Part III and under the Management Regulations shall endure in respect of the Letting Currency and accordingly shall remain enforceable after the Letting Currency insofar as they relate to the Letting Currency."
"Letting Currency" means whichever is the longer of the currency of the Asda lease and the M & S lease.
[6] A number of clauses in Part III are potentially of relevance to these proceedings. I need not take these in strictly numerical order.
Use of the premises
[7] Clauses 61 to 71 impose restrictions on use of the various elements of the site. Except to the extent that Asda and M & S give prior written consent, Clause 61 permits the use of the shops in the shopping mall only as a complex of separate retail shops and other separate premises providing services for consumers. Clauses 62 and 63 permit the use of the M & S store and the Asda store respectively only for retail purposes and certain other consumer services. Clause 64 concerns use of the mall itself and provides inter alia:
"Except to the extent that the Represented Parties may otherwise agree in writing, the Mall shall be used only:-
64.1 For the following purposes during Normal M.O.B. hours:-
64.1.1 For the purposes of pedestrian access and recourse to and from the M & S Store, the Asda Store and the premises from time to time let by M.O.B. Leases;
64.1.2 (Subject to Clause 66 hereof) for the purposes of such exhibitions, displays or events as the Management Committee may from time to time decide...
64.1.3 (Subject to Clause 66 hereof) for the purposes of such (if any) leisure-related or community-related activities as may from time to time be agreed among the Represented Parties as appropriate to be held in the Mall..."
"M.O.B." stands for Multiple Occupancy Building, i.e. the building containing the mall and retail units located between the M & S and Asda stores. References in the lease to "M.O.B Proprietors" are to EDC and its successors in title (i.e., for present purposes, to the pursuer); references to "M.O.B. Tenants" are to the grantees of leases or licences in respect of retail units within the M.O.B. For an explanation of the references to the Management Committee and the Represented Parties, see paragraph 11 below. Clause 66 is not material for present purposes.
[8] Clause 65 is similar in structure to Clause 64 but concerns the car parking areas. It provides:
"Except to the extent that the Represented Parties may otherwise agree in writing, the Car Parking Areas shall be used only for:-
65.1 Car parking for customers and staff of the Shopping Centre...
65.2. For the purposes of such exhibitions, displays or events as the Management Committee may from time to time decide...
65.3 (Subject to Clause 66 hereof) for the purposes of such (if any) leisure-related or community-related activities as may from time to time be agreed among the Represented Parties as appropriate to be held in the Car Parking Areas.
65.4 For access to and egress from the Mall and access to and egress from any separate door of either Store..."
"The Car Parking Areas" are defined in Clause 1.9 as the areas shown coloured purple on the Boundary Plan or such other areas within the Shared Areas as shall from time to time be agreed in probative writing among the Represented Parties to be the parts of the Shared Areas on which car parking shall be permitted. In terms of Clause...
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