London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Beldam,Lord Justice Ralph Gibson |
| Judgment Date | 25 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0525-6 |
| Docket Number | CHANF 92/0628/B |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 1993 |
[1993] EWCA Civ J0525-6
(His Honour Judge Paul Baker QC Sitting as a Judge of the High Court)
Before: Lord Justice Ralph Gibson Lord Justice Beldam and Lord Justice Peter Gibson
CHANF 92/0628/B
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR GAVIN LIGHTMAN QC and MR MICHAEL BRIGGS (instructed by MARRON DODDS & WAITE, Leicester) appeared for the RESPONDENT
SIR WILLIAM GOODHART QC and MR M KENNEDY (instructed by TITMUSS SAINER & WEBB,London) appeared for the APPELLANT
(AS APPROVED BY THE COURT))
This is an appeal by the Plaintiff, London & Blenheim Estates Ltd., from the order of His Honour Judge Paul Baker Q.C., sitting as a Judge of the High Court in the Chancery Division. The Plaintiff had claimed a declaration that it and its successors in title to certain leasehold land ("the Additional Land") in Leicester are entitled to the benefit of (inter alia) a right to park on certain other land ("the Retained Land") which at the time of the trial was owned by the then sole Defendant, Ladbroke Retail Parks Ltd. ("LRP"). The learned Judge dismissed that claim and granted a declaration which LRP had sought by its counterclaim that there existed no right to park on the Retained Land in favour of the Additional Land.
The facts were not in dispute. On 27 August 1987 the Leicestershire Co-operative Society Ltd. ("the Co-op") transferred on sale to the Plaintiff a parcel of land ("the Transferred Land") ripe for development in Leicester. The Transferred Land was expressed to be transferred "together with the easement and other rights specified in the First Schedule hereto but except and reserving the easements and other rights specified in the Second Schedule hereto". The Transferred Land, like the Additional Land and the Retained Land, was registered land. By clause 3 the Co-op and LRP applied for all such entries to be made on the register of titles of both of them as might be requisite for the purpose of fully protecting and recording all the rights granted and reserved by the Transfer.
The First Schedule contained 11 paragraphs. Paragraph 1 was a right of way for the Plaintiff for all purposes in connection with the use of the Transferred Land over a roadway and footway intended to be constructed on the Retained Land, being land retained by the Co-op, and, prior to that construction, an immediate right of way over a specified part of the Retained Land. Paragraphs 2 to 6 contained rights to enter the Retained Land for specific purposes and to connect with and use services to be provided on the Retained Land. Paragraph 7 reads as follows:
"7. When the Transferors development has been completed or otherwise as may be agreed by the Transferor a right for customers clients or employees of any retail shop or other business conducted on the transferred land to park (if space is available) on any part of the retained land set aside as a car park for the benefit of customers clients or employees of any retail shop or other business conducted on the retained land or for the benefit of members of the public on the like terms (as to charges and conditions of use) as are imposed upon such last-mentioned customers clients or employees but subject to the Tranferee paying a reasonable share of the costs of maintaining such car park and any adjoining landscaped areas".
Paragraph 8 contained provisions ancillary to the rights of entry and paragraph 9 contained a right to erect a signboard. Paragraph 10 contained provisions intended to ensure that the rights should not fall foul of the rule against perpetuities and sub-paragraph (b) provided (inter alia) that the right granted by paragraph 7 should apply only to car parks constructed within 20 years from the date of the Transfer.
Paragraph 11 was in this form:
"11. In this Schedule the expression "the transferred land" shall include any other land if
(a) such land is capable of being benefited by the rights hereby granted
(b) notice is given to the Transferor within five years from the date hereof that such land is to be included in the transferred land for the purposes of this Schedule
(c) at the date of such notice the original Transferee (or some other company which is a subsidiary holding or associated company of the Transferee) is the registered proprietor of or has contracted to purchase such land".
In clause 4 of the Transfer "the Transferor" was expressed to include the Co-op's successors in title where the context admitted. Clearly the context so admitted in paragraph 11.
The Second Schedule contained the easements and rights excepted and reserved to the Co-op. For the most part they are easements and rights corresponding to those in the First Schedule but over the Transferred Land for the benefit of the Retained Land and they included a right to park in terms similar, mutatis mutandis, to paragraph 7 of the First Schedule.
The learned Judge held that the rights conferred by paragraph 11 had been sufficiently registered.
On 18 December 1987 the Plaintiff contracted to purchase the Additional Land, being land bordering on the Retained Land and capable of being benefited by the rights in the First Schedule. On 2 February 1988 Wortley Developments Ltd. ("Wortley") became the registered proprietor of the Retained Land. On 1 March 1988 the Plaintiff gave notice to Wortley under paragraph 11(b), requiring the Additional Land to be included in the Transferred Land for the purposes of the First Schedule. On 2 September 1988 Wortley transferred the Retained Land to LRP and early in 1990 the Plaintiff, which had earlier sold part of the Transferred Land to another company, sold the rest of the Transferred Land to LRP.
By October 1990 LRP had developed the Retained Land and that part of the Transferred Land which it had bought from the Plaintiff into a retail park with a large car park of about 850 spaces extending across part of the Retained Land and part of the Transferred Land. It is the car park on the Retained Land that is relevant to the dispute in the present case. In December 1992 LRP transferred the Retained Land to Ladbroke Group plc which then transferred it to Retail Parks Investments Ltd. Both these companies were by consent joined on 1 February 1993 as Defendants with LRP.
To summarise the factual position, the Plaintiff, the original Transferee, contracted to purchase the Additional Land, being land capable of being benefited by the rights in the First Schedule, before the Co-op transferred the Retained Land, but it was only after that transfer that the Plaintiff gave notice to Wortley that the Additional Land was to be included in the Transferred Land for the purposes of the First Schedule; that notification was within 5 years from the date of the Transfer of 27 August 1987.
There were 4 issues before the learned Judge:
(1) Can a right to park exist as a valid easement? The learned Judge held that it could, but on this appeal the Defendants submit that a right to park of the type set forth in paragraph 7 cannot.
(2) Can the servient owner terminate or modify the right to park by changing the user of the Retained Land? The learned Judge held that the right to park was only exercisable over so much of the Retained Land as was from time to time set aside as a car park, but on this appeal the Plaintiff submits that once a car park has been set aside, the servient owner cannot terminate or modify that right save only to reduce it, but not beyond an extent that would leave insufficient car-parking space.
(3) Can the rights conferred by paragraph 11 be exercised in relation to leasehold (as opposed to freehold) land? The learned Judge held that it could and that conclusion is not challenged on this appeal. (4) Can the right given by paragraph 11 to add land to benefit from the rights in the First Schedule be exercised so as to bind successors in title to the Retained Land? The learned Judge held that it could not, but the correctness of that conclusion is challenged by the Plaintiff on this appeal.
The fourth issue was the substantial issue argued before the learned Judge. He described it as "by far the most difficult issue in the case". He dealt with it first, and, as it is the substantial issue before us, I too shall address it first.
The nature of the issue, as it was...
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