Robert Purvis Plant Hire Limited V. David Farquhar Brewster+alex Kinloch Brewster+the Firm Of Alex Brewster & Sons
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2009] CSOH 28 |
| Court | Court of Session |
| Date | 27 February 2009 |
| Published date | 27 February 2009 |
| Docket Number | CA76/08 |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 28 | |
| CA76/08 | OPINION OF LORD HODGE in the cause ROBERT PURVIS PLANT HIRE LIMITED Pursuers; against DAVID FARQUHAR BREWSTER, ALEX KINLOCH BREWSTER and THE FIRM OF ALEX BREWSTER & SONS Defenders: ________________ |
Pursuers: N. E. Beynon, advocate; Biggart Baillie LLP
Defenders: R. W. Dunlop, advocate; Maclay Murray & Spens
27 February 2009
[1] The pursuers in February 2006 entered into a lease of approximately 1.75 hectares of land on Baird Road about 300 metres to the north of Ratho village, near Edinburgh. The land had previously been used as a concrete batching plant. The lease was for a period of five years at an annual rental of £45,000. In entering into the lease, the pursuers intended to use the site for recycling and storing bulk road materials and they aver that the defenders, who are the landlords, similarly envisaged that use. As a result of the service of an enforcement notice by the planning authority and the pursuers' failure on an appeal against that notice, the pursuers aver that they can neither store nor recycle bulk materials on the site. They seek declarator that they are no longer obliged to fulfil the tenants' obligations under the lease. In support of that conclusion they aver that the lease has been frustrated and separately that the lease is void for illegality. The pursuers also seek repayment of the rent which they have paid since the adverse appeal decision. In a procedure roll debate the defenders challenged the relevancy of the pursuers' pleadings and sought dismissal of the action.
Factual background
[2] The factual background revealed in the pursuers' averments and the documents to which I was referred may be summarised as follows. The site was used as a concrete batching plant from some time between 1955 and 1960 until 1998. The defenders purchased it in 2001 and let it intermittently on short term lets to various building firms for miscellaneous storage purposes. In 2006 there were several hundreds of tonnes of rubble on the site and the defenders asked the pursuers to recycle the rubble when the pursuers took the lease of the site. The pursuers did so. The pursuers aver that the defenders knew that the pursuers intended to recycle construction and demolition materials on the site, using heavy plant and mobile crushing units. The defenders' agents, Rydens, sent the pursuers a copy of a planning consent dated 1990 which permitted storage on part of the site and told them of their belief, which they did not warrant, that industrial use was also permitted. In terms of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (SI 1997/3061) class 5 is general industrial use which is use for the carrying on of an industrial process other than one falling within class 4 (business) and class 6 is storage or distribution which is defined as use for storage or as a distribution centre.
[3] The relevant clauses of the lease were the following. Clause 3 provided that the lease would endure from 18 January 2006 until 17 January 2011. It also provided for the earlier termination of the lease by notice on the occurrence of either of two events, namely (a) the acquisition of the access roadway by the local authority under a compulsory purchase order and (b) the destruction of or material damage to the premises. Clause 4 provided that the rent would be £45,000 per year. Clause 5.10 prohibited the tenants from doing anything which would contravene statutory provisions which included the Planning Acts and clause 5.12 required the tenants to apply at their own cost for all licences, consents and permissions for alteration of the premises. The user clause, which was clause 5.14, was in these terms:
"To use the premises only for the storage of bulk road materials or for such other purposes as may from time to time be approved in writing by the Landlords ..."
Two other clauses are relevant. Clause 5.15 prohibited the tenants from doing anything which would be or would tend to be a nuisance to the landlords or the owner of any adjoining property. Clause 6.6 provided that nothing contained in the lease should be deemed to constitute a warranty by the landlords that the premises or any part thereof were authorised under the Planning Acts for any specific purpose.
[4] Although the user clause in the lease referred only to the storage of bulk road materials, the pursuers installed heavy plant and crushers to recycle such material. Noise and dust from their operations gave rise to complaints from neighbouring proprietors. Within about two weeks after the lease was signed, the planning authority, the City of Edinburgh Council, served a planning contravention notice dated 28 February 2006 on the defenders alleging that the use of the site for the recycling of construction and demolition materials with associated plant and ancillary facilities was a breach of planning control. The planning authority then served an enforcement notice dated 5 September 2006 on both the pursuers and the defenders. The enforcement notice ordered them to cease to use the site for the recycling of construction and demolition materials and to remove all plant and materials from the site within two months of 12 October 2006.
[5] The pursuers, with at least the tacit support of the defenders, appealed against the enforcement notice. That appeal was not successful. On 27 March 2007 Mr Douglas G Hope, the planning reporter, issued his decision letter, in which he dismissed the appeal and upheld the enforcement notice but varied the time allowed for compliance from two months to four months. His decision related to the Class 5 use of the site. He held that the former industrial use had been abandoned in 1998 and that the short term tenants of the site between 2001 and 2005 had used it intermittently for storage which was a different use class in the Use Classes Order. He therefore held that planning permission was needed. He went on to consider the relevant planning policies and the adverse impacts of the proposed use, and, in particular, landscape impact, noise, dust and heavy lorry movements, and concluded that planning permission should not be given. While Mr Hope's decision did not determine whether there was an extant permission for use of the site or part of it for storage, it was clear from the reporter's summary of the Council's submission that the Council's position was that there was no such permission. The pursuers aver that they have no prospects of obtaining planning consent for class 6 use.
[6] The pursuers' case is thus that, as a result of the decision of the reporter in the class 5 appeal and the attitude of the planning authority in relation to class 6 use, they cannot use the site either for the recycling of the construction and demolition material or, in accordance with the user clause of the lease, for the storage of that material.
The pursuers' submissions
[7] I summarise briefly the pursuers' submissions in relation to frustration and secondly in relation to illegality. In relation to the proposition that the lease had been frustrated Mr Beynon submitted that the reporter's decision and the stance taken by the local planning authority amounted to a supervening event which rendered illegal the only use of the site which was permitted under the lease. This event had occurred without any fault on the part of the pursuers. Both of the parties to the lease had envisaged the industrial use of the site and it could be inferred that the defenders would have consented to such use as they had encouraged it in relation to the disposal of their rubble on the site. The pursuers were offering to prove that they had neither class 5 or class 6 consents and had no prospects of obtaining them. While the reporter had referred to nuisance caused to neighbours, it was not possible without inquiry to determine whether the noise and dust from the operations amounted to a breach by the pursuers of the prohibition against causing nuisance in clause 5.15 of the lease. He submitted that the lease had not made sufficient provision for the circumstances which had occurred as the landlords could not enforce the user obligation to require the pursuers to store materials...
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