Stadium Capital Holdings Ltd v St Marylebone Property Company Plc
| Jurisdiction | England & Wales |
| Judge | SIR DONALD RATTEE |
| Judgment Date | 15 October 2009 |
| Neutral Citation | [2009] EWHC 2942 (Ch) |
| Date | 15 October 2009 |
| Court | Chancery Division |
| Docket Number | Case No: HC08C02437 |
[2009] EWHC 2942 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Donald Rattee
Case No: HC08C02437
MR J FURBER QC appeared on behalf of the Claimant
MR A REYNOLDS QC appeared on behalf of the Defendant
Approved Judgment
The claimant in these proceedings is the registered freehold proprietor of land on the west side of Finchley Road in North West London known as the Midland Crescent site to which I shall refer to as "the claimant's land". The claimant's land is currently a cleared site which the claimant intends to redevelop. It was acquired by the claimant pursuant to a transfer by BRB (Residuary) Limited dated 28 March 2008.
The first defendant is the registered leasehold proprietor of premises adjoining the claimant's land and known as 279a Finchley Road, to which I shall I refer as "the first defendant's premises". The lease held by the first defendant was dated 10 October 1931 and granted a term of 99 years from 10 July 1931. At the date of the lease and until 1 January 1948 the owner of the freehold reversion to the lease of the first defendant's premises, and the owner of the freehold in the claimant's land, was one and the same body, namely the London Midland and Scottish Railway Company. On 1 January 1948 both freehold interests vested in the Railway Executive of the British Transport Commission ("the Railway Executive") and were held by it until 1 January 1964. Both interests were then vested in the British Railways Board which held both interests until some date in 1993. Both interests where then vested in BRB (Residuary) Limited and were so held until 1 April 1994 when, as part of the privatisation scheme for the railways, the freehold reversion to the first defendant's premises became vested in Network Rail Infrastructure Limited while the claimant's land remained held by BRB (Residuary) Limited.
The lease of the first defendant's premises contains two provisions to which I should refer because they have featured in submissions before me. By clause 4(c) of the lease the lessee covenanted:
"To use the demised premises as a site for the erection of three storey buildings whereof the bottom storey will be constructed as a shop or shops, and the remaining storeys as flats and to use such buildings only for such purposes as shall be approved in writing by the lessors. Provided that such approval shall not be withheld to the user of the said buildings or any part thereof for residential purposes or for any profession made [and I think it means trade] or business which is not noxious, noisy or offensive and not to commit or permit on the demised premises any waste or damage, or anything which may be or become a nuisance or annoyance to the lessors, or to the tenants of adjoining premises or to the neighbourhood."
By clause 4(o) the lessee covenanted:
"Not to make any alterations or additions to the demised premises other than those hereby authorised, except such as shall be previously approved in writing by the lessors or their agents. Such approval not to be unreasonably withheld."
The first defendant acquired the lease on 3 June 1975. It is now common ground (though at the commencement of these proceedings it was disputed) that the southern flank wall of the first defendant's premises which adjoins the claimant's land represents the boundary between the two holdings, the claimant's land and the first defendant's premises.
On 1 August 1956 agents on behalf of the first defendant's predecessor, as holder of the lease of the first defendant's premises, wrote to solicitors acting for the Railway Executive (the then owner of the claimant's premises) a letter in the following terms:
"Further to our past telephone conversation in respect of a proposed advertising hoarding on the south wall at the above [the above being the first defendant's premises] we write to request that you obtain a licence for such hoarding from the freeholders, the Railway Executive, as soon as possible.
For your information the tenants proposed are Solosigns of 52 Portland Place, W1 and the display board which it is hoped will be erected will be 20 feet in size. The board may be illuminated at night if permission of the local town planning authority can be obtained. This letting is naturally subject to agreement for the sign being obtained by the Town and Country Planning Authority, but in this respect we do not anticipate any difficulty as there are indications that a hoarding has been erected in this position in the past.
Incidentally, if you have any information as to a previous hoarding on this wall please advise as it will mean that no consent is necessary but simply the establishment of the previous use."
That then was a letter written to the body, which at the time was not only the freehold owner of the reversion to the lease of the first defendant's premises, but also the freehold owner in possession of the claimant's premises.
On 7 September 1956 the Railway Executive's solicitors replied in the following terms:
"279a Finchley Road, London NW3.
Further to my letter of the 21 st August there is no objection to your client's proposal to erect an advertisement hoarding on the south wall of the above premises and you may accept this letter as the commission's authority to proceed with the work subject, of course, to all other necessary consents being obtained.
I have no information as to any hoarding having been previously erected on this building."
On 10 November 1956 planning permission for the erection of the proposed hoarding was refused, a refusal which was upheld on appeal in April 1957. The first defendant acquired the lease of the first defendant's premises on 3 June 1975, by which time still no hoarding existed on the flank wall. However, on 22 October 1975 a company called Pearl & Dean Outdoor Advertising Limited applied for planning consent for the erection of such a hoarding. That consent was granted on 27 November 1975.
Thereafter the first defendant granted to Pearl & Dean Outdoor Advertising Limited:
"…the exclusive right of displaying advertisement on, or of erecting hoardings or structures for the display of advertisement on the premises of the owner situate and being 279a Finchley Road, London NW3."
That right was granted for a period of three years from 1 January 1976. A number of similar licence agreements were entered into subsequently by the first defendant. The last such licence was granted on 8 May 2008 to the second defendant in these proceedings for a period to end on 28 September 2011.
A hoarding was erected on the wall sometime in 1976 and retained in the same position until 2002, when it was moved to a higher position on the wall. The position of it changed again in 2005 and again in 2007. On some date in 1986 the licensee for the time being affixed a platform to the wall under the hoarding to allow maintenance access to the hoarding. From then on such a platform was maintained under the hoarding in its position from time to time. Evidence on behalf of the first defendant is to the effect that it never gave permission for the erection of a platform as opposed to a hoarding. This evidence is not disputed.
On 23 December 2004, solicitors on behalf of BRB (Residuary) Limited (being then the freehold owner of the claimant's land) wrote to Network Rail Infrastructure Limited (by then the owner of the freehold of the first defendant's premises) a letter in the following terms:
"279a Finchley Road, London NW3. [Advertising hoarding and posting platform].
We act for BRB (Residuary) Limited; the adjoining owner of the property reffered to above. We understand that you are the current long leaseholder of the above property [which is leased to St Marylebone Property Company Plc on a long lease expiring in 2030].
Our clients inform us that there is an advertising hoarding situated on the southern side of the above property and bill posting platform. The bill posting platform and advertising hoarding encroach onto our client's property and constitute a trespass. Please treat this letter as notice on behalf of our client that our client requires you to remove both advertising hoarding and bill posting platform within one month of the date of this letter."
A similar letter was written by BRB (Residuary) Limited to solicitors on behalf of the first defendant on the same date.
On 1 February 2005 the first defendant wrote to BRB (Residuary) Limited's solicitors a letter which included the following:
"…I...
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