The Tropical Zoo Limited v The Mayor and Burgesses of the London Borough of Hounslow
| Judge | Mrs Justice Bacon |
| Neutral Citation | [2024] EWHC 1240 (Ch) |
| Year | 2024 |
| Court | Chancery Division |
| Counsel | Julian Greenhill Kc,Ernest Leung,Martin Hutchings Kc,Daniel Petrides |
| Date | 24 May 2024 |
Neutral Citation Number: [2024] EWHC 1240 (Ch)
Case No: PT-2022-000667
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
24 May 2024
Before :
MRS JUSTICE BACON
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Between :
The Tropical Zoo Limited
Claimant
- and -
The Mayor And Burgesses Of The London Borough Of Hounslow
Defendant
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Julian Greenhill KC and Ernest Leung (instructed by Forsters LLP) for the Claimant
Martin Hutchings KC and Daniel Petrides (instructed by Bevan Brittan LLP) for the
Defendant
Hearing dates: 22–25 April 2024
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Approved Judgment
This judgment was handed down remotely at 10 am on 24 May 2024 by circulation to the
parties or their representatives by email and by release to the National Archives.
MRS JUSTICE BACON
Approved Judgment
Tropical Zoo v Hounslow
MRS JUSTICE BACON:
Introduction
1. This is a dispute about a lease of approximately 25 acres of land currently designated as
green belt (the Site), which was granted by the defendant council (LBH) to the
claimant (TZL) in March 2012 for the purposes of use as a centre for education,
conservation and leisure including a tropical zoo visitor attraction and associated
facilities. The Site lies to the south-west of Faggs Road, East Bedfont, TW14 0LZ, and
is near Heathrow airport. The lease included covenants requiring TZL to construct a
zoo building and education centre within two years of the grant of the lease.
2. Since taking on the lease TZL has run Hounslow Urban Farm on the Site, with a
collection of (currently) around 489 vertebrates, including mammals, birds and reptiles,
plus 73 invertebrates. It has not, however, constructed the zoo, or even commenced
construction of the proposed zoo building. LBH now seeks the forfeiture of the lease
for non-compliance with the relevant covenants. TZL contends that Hounslow has
waived its right to forfeit, or alternatively that the court should grant relief from
forfeiture.
3. The proceedings were initiated by TZL on 3 August 2022 with a claim for declaratory
relief that the lease is not liable to be forfeited, alternatively requesting relief from
forfeiture. LBH defends the claim on the basis that it has not waived its right to forfeit,
and that the court should not grant relief from forfeiture. LBH has since issued a claim
for possession in the County Court at Central London, which has been stayed pending
the determination of TZL’s claim.
4. While TZL is the tenant under the lease and the claimant in these proceedings, the
litigation is in fact being funded and run by a property development company called
Canmoor. A subsidiary of Canmoor, Hounslow Ventures Ltd ( HVL), has entered into a
Call Option Agreement with TZL which provides an option for it to purchase TZL’s
shares, and it is said that the option will be exercised if TZL is successful in this
litigation. Canmoor’s hope is that it will ultimately be able to exploit the lease in order
to use most of the Site for an industrial park serving Heathrow airport. In reality and
substance, therefore, this is litigation between Canmoor and LBH.
5. At the trial, Mr Greenhill KC and Mr Leung represented TZL, and Mr Hutchings KC
and Mr Petrides represented LBH. I heard submissions from all four counsel, and am
very grateful for their assistance.
Witnesses
TZL’s witnesses
6. TZL relied on the evidence of two witnesses. Alice Purdy is a shareholder and
employee of TZL and has, together with her father Tony Purdy, run TZL since it was
incorporated in 2011. She also previously ran a similar operation with her father at
Syon Park in Brentford. Her evidence explained the background to the grant of the
lease, TZL’s efforts since the grant of the lease to secure funding for the construction of
the zoo, and its discussions with LBH during that time. She did not, however, have a
clear recollection of some of the events many years ago, including the negotiations with
Page 2
MRS JUSTICE BACON
Approved Judgment
Tropical Zoo v Hounslow
various prospective funders which had been primarily conducted by her father. Nor did
she have a good understanding of various of the legal documents. It was apparent that
since Canmoor has become involved, it has effectively directed the litigation strategy
and its solicitors have drafted letters on behalf of TZL. Nevertheless, in relation to the
question of why TZL continued to pay rent after service of the s. 146 notices by LBH, I
consider that Ms Purdy knew and understood more than she was willing to admit.
7. Andrew Ellis is a director of TZL and has been a minority shareholder since 2016. His
role has been to assist TZL in finding external investors to support their business and
build the zoo on the Site. Most recently, he has been the primary point of contact
between TZL and Canmoor, and he gave evidence as to what he understood to be
Canmoor’s position in relation to the exercise of the call option and the construction of
the zoo if TZL were to prevail in these proceedings. He could not, however, speak for
Canmoor and was not authorised to do so. Canmoor could have provided evidence
itself in the proceedings, but chose not to do so. Accordingly, while Mr Ellis made
repeated comments as to his beliefs as to Canmoor’s intentions and financial position,
those comments were simply speculation (and perhaps hope) on his part.
8. It is also unfortunate that unredacted versions of the Call Option Agreement, Share
Purchase Agreement and subsequent side letter extending the option period were
provided by TZL only on the last day of the trial, after the close of the evidence on both
sides. The versions of these documents previously provided had redacted all of the
figures for the amounts paid by Canmoor or its subsidiaries to TZL and its
shareholders, and the amounts to be paid if the call option was exercised. Mr Hutchings
noted that if the unredacted documents had been available at the start of the trial, he
would have wished to ask Ms Purdy and Mr Ellis questions about those figures and
how the sums already paid had been spent. It was very unhelpful for the relevant
figures to have been withheld until the last minute, and no explanation was given as to
why the unredacted versions of these documents were not provided well before the
trial.
LBH’s witness
9. LBH relied on the evidence of a single witness, Dawid Miszkurka. Between 2016 and
2023 Mr Miszkurka was an associate director at Avison Young, which is LBH’s agent
for the Site and was responsible for sending demands for and collecting payments of
rent from TZL. Mr Miszkurka was the main point of contact between LBH and Avison
Young relating to the property, and his evidence explained the way in which incoming
rent payments are dealt with by Avison Young, LBH’s instruction in February 2021 not
to accept further rent payments from TZL, and Avison Young’s handling of rent
payments which were subsequently made by TZL. Mr Miszkurka was a patently
straightforward and honest witness, whose evidence was clear and reliable.
Page 3
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