Land Reclamation Company Ltd v Basildon District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE SHAW,LORD JUSTICE BRANDON |
| Judgment Date | 14 February 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J0214-4 |
| Docket Number | 1976 L No. 3877 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 1979 |
[1979] EWCA Civ J0214-4
Lord Justice Buckley
Lord Justice Shaw
and
Lord Justice Brandon
In The Matter of The Landlord And Tenant Act 1934
and
In The Matter of Premises Known As Pitsea Access Road Being The Private Road Leading To The Sea Transport Depot At Pitsea, Basildon, Essex
In The Supreme Court of Judicature
Court of Appeal (Civil Division)
On Appeal from The High Court of Justice
Chancery Division
Group A
(Mr. Justice Brightman
MR. ANTHONY SCRIVENER Q.C., MR. H.A.P. PICARDA and MR.D.A.LOWE (instructed by Messrs. Ellison & Co., Solicitors, Colchester) appeared on behalf of the Plaintiffs (Appellants).
MR. R. BERNSTEIN Q.C. and MR. C.B. PRIDAY (instructed by Mr. J.L. Knight, solicitor, Basildon) appeared on behalf of the Defendants (Respondents).
This is an appeal from a judgment of Mr. Justice Brightman who, on a preliminary issue in an application for a new tenancy under the Landlord & Tenant Act 1954, section 26, declared that the tenancy created by a lease dated 14th August 1970 between the respondent Council as lessor and the appellant company as lessee is not a tenancy to which Part II of that Act applies. The respondents are the successors of the former Basildon Urban District Council, but I shall describe those two local authorities as "the respondents" indifferently.
The appellants carry on a business of disposing of waste, both domestic and industrial, on a large area of land exceeding 1,000 acres at Pitsea in Essex. The respondents are owners of other land adjoining the applicants' land, and known as the Sea Transport Depot; the respondents acquired that land from the Ministry of Defence not long before the date of the lease in question. The only existing vehicular access to the appellants' land is along a private road of some considerable length running over the respondents' land from north to south, from a point marked D on an exhibited plan to a point marked A upon it. When the respondents' land was in the ownership of the Ministry of Defence, the appellants were licensed to use this road for the purposes of their business.
On 14th August 1970 the respondents made the following grant of a right of way over the road; the document is called a lease and I shall refer to it as "the lease". It is dated 14th August 1970; it is made between the respondents of the one part and the appellants of the other part; it recites that the respondents are the owners in fee simple of the land at Pitsea known as the Sea Transport Depot, which includes the road coloured ped on the planattached to the lease, and that the company (that is, the appellants) were estate owner in fee simple of land to the southeast of the extreme point of the road, which provided the sole means of vehicular access to and from the highway.
The operative part of the document is in the following terms: "NOW THIS DEED WITNESSETH as follows:- 1. IN consideration of the rent and covenants hereinafter reserved and contained the Lessor hereby demises unto the Company full right and liberty for them and their assigns their agents servants or licensees to pass and repass with or without vehicles along the private road in common with the Lessor its servants agents tenants and licensees and others having a like right and liberty between the hours of 6 a.m. to 8 p.m. Mondays to Fridays and 6 a.m. and 2.30 p.m. Saturdays (hereinafter called 'the permitted hours') for all purposes in connection with the use of the Company's land for the dumping and disposal of waste materials Subject nevertheless to and reserving unto the Lessor the right at all times hereafter or at any times or time to erect renew and maintain a gate or gates across the said roadway at the points marked 'G' on the said plan with all necessary fittings and fixtures but so that the same shall not be locked or be so erected or maintained as to impede or obstruct the free use and enjoyment of the right and liberty of the way hereby granted in accordance with the tenor hereof TO HOLD the same unto the Company from the 25th March 1970 for the term of SEVEN YEARS paying therefor unto the Lessor during the said term the yearly rent of ONE THOUSAND POUNDS (£1,000) by equal quarterly payments in advance on the usual quarter days in every year without any deduction the first of such quarterly payments to be made on the signing hereof for the two quarters ending 28th September 1970".
Then clause 2 contains lessees' covenants, which include a covenant to make up part of the road between the points marked A and B on the plan at the cost of the lessee and to the satisfaction of the lessor's surveyor, and to pay to the lessor the cost to the lessor of putting another part of the road, between the points marked B and C into a proper state of repair, and to pay to the lessor three-quarters of the cost to the lessor of maintaining during the first year of the term granted, that part of the road between the points marked B and C, and thereafter to pay in like manner a fair proportion according to user of the lessor's cost of maintaining during the remainder of the term that part of the road. There is a covenant by the lessee not to use the private road outside the permitted hours without the previous consent of the lessor, and a covenant by the lessee to use its best endeavours to prevent vehicles which call at the company's land from parking on any part of the private road or other part of the land belonging to the lessor at the Sea Transport Depot; and there is a covenant for peaceable enjoyment of the right given by the lessor. I need not read any more of that document.
The use of the road in question by the appellant is, and has always been, entirely for business purposes. It has been a heavy use; we are told that the appellant's lorries go down the road at the rate, on an average, of one every four minutes during the permitted hours. There is no alternative access to the appellant's land readily available; they do own other land adjoining the land on which they carry out their tipping operations, but that land is land which is scheduled as being of special scientific interest. They have made an application for planning permission to construct a road across that other land; that application has been refused bythe local planning authority and at the present time an appeal to the Minister from that refusal is pending. Industrial waste can only be brought to the appellant's land where they carry out their tipping operations by use of the road; it seems however that domestic waste can be brought there by water.
On 20th April 1976 the appellants applied, purportedly under section 26 of the Landlord & Tenant Act 1954, for a new tenancy of the right of way; on 14th June 1976 the respondents served a counter notice under the Act, which is at page 6 of our documents, giving as their grounds for refusing a new tenancy: "(i) That on the termination of the current tenancy the Council or landlord intends to carry out substantial work on the holding or part thereof and that the Council as landlord could not reasonably do so without obtaining possession of the holding; (ii) That on the termination of the tenancy the Council as landlord intend to occupy the holding for the purposes or partly for the purposes of a business to be carried on by them therein". That notice was served without prejudice to a contention by the respondents that the lease was not within the Act.
On the application of the respondents the proceedings were transferred from the County Court into the Chancery Division of the High Court, and the following question was in due course directed to be tried as a preliminary issue, namely, "…whether the tenancy created by the lease made the 14th August 1970 is a tenancy to which Part II of the Landlord & Tenant Act 1954 applies …". That matter came before Mr. Justice Brightman in December 1977. The respondents first submitted that the legal relationship between the respondents and the appellants was that of licensor and licensee and not that of landlord and tenant. The judgerejected that argument, saying at on page 1165 of (1978) 2 All England Reports, where his decision is reported: "… it seems to me clear that the local authority granted to the company a legal easement for a term of years and not a mere licence". There is no appeal from that decision, and although I would not wish to be taken to decide that on its true interpretation the lease amounted to a grant of an easement for an interest equivalent to a term of years absolute, I proceed upon the footing, for the purposes of this judgment, that that is its effect.
The judge went on to consider whether upon that basis the lease came within the terms of the operation of the Act. He said: "In ordinary speech, a right of way is not a possible subject matter of occupation as distinct from user, nor is it easy in normal circumstances to say that a roadway is occupied by a person who has a mere right of way thereover". He went on to discuss certain provisions of the Act and certain authorities, and reached the conclusion, at page 1167 of the report, at the end of the judgment: "In my judgment, the company uses the roadway for the purposes of its business but it does not occupy either the easement or the roadway. I take the view that Part II of the 1954 Act has no application to a mere right of way standing by itself, because such a right is not property or premises capable of being occupied for the purposes of a business, or indeed for any other purpose", and he accordingly made the declaration which is appealed against.
Part II of the Landlord & Tenant Act 1954 is the part of the Act which deals with security of tenure for business, professional and other tenants; section 23 (1) provides that: ...
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