Gyle Shopping Centre General Partners Ltd As Trustee For And General Partner Of Gyle Shopping Centre Limited Partnership
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2015] CSOH 14 |
| Docket Number | CA190/13 |
| Published date | 12 February 2015 |
| Court | Court of Session |
| Date | 12 February 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 14
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 & SPENCER PLC
Defender:
Pursuer: Lindsay QC, Walker Sol Adv; Gateley (Scotland) LLP
Defender: Murphy QC, Robertson; DWF Biggart Baillie LLP
12 February 2015
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 has entered into an agreement with Primark Stores Ltd for the construction and leasing of a new retail store building which would abut the existing shopping centre and would be constructed partly on currently unbuilt‑upon land including part of the car parking area. The defender contends that it has not given its agreement in probative writing to the construction of such a building, and accordingly that the pursuer is not entitled to commence construction or to grant a lease of it to Primark.
[2] I have previously issued two opinions in this action. In the first of these, dated 25 March 2014 (published with the reference [2014] CSOH 59), I held, after a debate, that the pursuer was not entitled to declarator that the defender had given its unqualified written consent to the use by the pursuer of areas currently forming part of the Shared Areas and car parking areas of the shopping centre for construction of a new building to be leased to Primark. The basis of the pursuer’s argument was that the Management Committee established in accordance with the defender’s lease had had power to agree, and had agreed, to a variation of the lease to the effect of permitting the construction of the new building on part of the Shared Areas, including the car parking area. I held that variation of the lease was not within the power of the Management Committee. I also expressed the view that the effect of certain clauses in the defender’s lease was that probative writing was required for any agreement that had the effect of altering the area within the site allocated to car parking, roads, and/or pedestrian routes.
[3] In my second opinion, dated 6 August 2014 (published with the reference [2014] CSOH 122), I held, after a proof, that the defender was not personally barred by its actings from taking action to prevent the pursuer from carrying out the construction of the proposed new building or proceeding to lease the resulting building to Primark.
[4] The pursuers now seek a declarator, in terms of conclusion 1.4 of the summons, that any refusal by the defender to consent to the Primark development, as shown on the plans produced, would amount to an unreasonable withholding of consent. On 18 December 2014 I heard a proof on this matter at which evidence was given by Mr Andrew Cronie, the centre manager for the Gyle Shopping Centre, and by Mr Kenneth Williamson, architect, a partner in the Hurd Rolland Partnership. Their evidence was to the effect that the Primark development would be beneficial to the Gyle Shopping Centre as a whole, and that the loss of car parking spaces which the development would entail would not render the shopping mall or the shared areas materially less adequate, commodious or convenient to the defender than they are at present. This evidence was largely unchallenged; the defender’s position, at the close of the proof, was that it was irrelevant because the provision of the lease concerning unreasonable withholding of consent (clause 24) did not apply to works which would effect a permanent alteration of the real rights granted to the respective parties in terms of the lease.
[5] The issues for determination in this opinion are accordingly:
(i) Does clause 24 apply to works which would have the effect of permanently removing an area of land from the Shared Areas in which the defender’s real right subsists?
(ii) If so, is the defender unreasonably withholding consent to works consisting of the proposed Primark development?
The defender's lease
[6] 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. As I observed in an earlier opinion, it is an intricate document drafted with meticulous care and attention to detail. This opinion is primarily concerned with clause 24; I will narrate the terms of that clause and of such other provisions as are essential to its understanding. Various other clauses of the lease were set out in my first opinion and again as an appendix to my second opinion; for the sake of brevity I will not repeat them here.
[7] Clause 24 provides as follows:
“The following provisions shall apply to any works within the Mall or the Shared Part (and any arbitration relating to any matter under this Clause shall be conducted in accordance with Clause 102 hereof):-
24.1 Such works shall be carried out within the minimum period reasonably necessary for the conduct of such works.
24.2 Except in case of emergency or where such works are carried out by the Management Committee pursuant to the duties of the Management Committee under Clause 77 hereof, such works shall not be carried out unless all of the Represented Parties either previously consent that they respectively accept that such works will not render the Mall or the Shared Parts materially less adequate, materially less commodious or materially less convenient to them respectively than the Mall and Shared Parts as existing immediately prior to the commencement of such works (which consents shall not be unreasonably withheld) or previously confirm in writing that they do not object to such works.
24.3 Except in so far as the Represented Parties shall otherwise agree, services not materially less adequate, not substantially less commodious and not substantially less convenient to the Represented Parties than those afforded by the Mall and the Shared Parts shall be provided and maintained by the party or parties responsible for carrying out the works, during the conduct of such works.
24.4 The services to be provided pursuant to Clause 24.3 hereof shall be in accordance with details previously approved in writing by the Represented Parties, each of whose approvals shall not be unreasonably withheld.
24.5 All such works shall be carried out in a proper and workmanlike manner and in accordance with good trade practice at the time.
24.6 Reasonable notice of all such works shall be given to the Represented Parties except in the case of emergency.
24.7 Such works shall be carried out in such manner as to conduct of works, and in accordance with such plans, elevations and specifications, and with such materials and finishes, as shall all previously have been approved by the Represented Parties (which approvals shall not be unreasonably withheld or delayed).
24.8 No such works shall be carried out which would prejudice the structural stability of the Shopping Centre or any part thereof.
24.9 Such works shall be so carried out as to minimise so far as practicable any adverse effect resulting from such works on the trading from, visibility of and access to the Stores and the Net Multiple Occupancy Building (including their respective Specific Pop-Out Front(s)) to the reasonable satisfaction of the Represented Parties.
24.10 Except to the extent any of the Represented Parties previously agree in writing to the contrary, the visibility of and access to the property to which such party has right shall be no less after the completion of any works under this Clause 24 than before the commencement of such works.
24.11 Such works shall be so conducted that access to and from the Stores and the Net Multiple Occupancy Building (including their respective Specific Pop-Out Front(s)) and the respective emergency egresses therefrom shall at all times be preserved to the reasonable satisfaction of the Represented Parties.”
[8] Clause 1 contains the defined terms of the lease. These include:
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“the Represented Parties” means the parties from time to time entitled to appoint a representative to the Management Committee.Those parties are presently (i) the pursuers, (ii) the defender, and (iii) Safeway Stores Limited, trading as Morrisons, the successors in title to the subjects described in the lease as the Asda Subjects.
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“the Shared Parts” means the Shared Services, the Shared Areas and the Common Internal Parts.
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“the Shared Areas” means the Site and the buildings and structures from time to time thereon, under exception of the M & S Subjects, the Asda Subjects, the Filling Station Subjects and the EDC Subjects.The Shared Areas accordingly consist of the Car Parking Areas, the Roads, and the Pedestrian Routes, together with the landscaped ground within the Site.The “Shared Services” means machinery, plant, pipes, wires etc within the Shared Areas and/or within the Multiple Occupancy Building which are agreed to be appropriate for shared use.
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the “Car Parking Areas" means 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.
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"the Roads" means the roads to be constructed on areas shown coloured orange and unhatched on the Boundary Plan or such other roads within the Shared Areas as shall from time to time be agreed in probative writing among the Represented Parties to be available for use among M & S, Asda and the M.O.B. tenants.
- There is a similar definition mutatis mutandis of "the Pedestrian Routes",...
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