Substantial interference – Owner of retail park announcing intended reduction of common service area – Claimant enjoying express right of passage over area for delivery vehicles – Intended change incompatible with unloading routine practised on claimant’s premises – Claimant entitled to injunction
The defendant owned the Bidstone Moss retail park by the M53 near Wallasey. At all material times, unit 1, the largest unit in the park, with an area of more than 150,000 sq ft, consisted of a DIY retail warehouse occupied by the claimant under a 25-year lease granted by the defendant’s predecessor in 1997. The warehouse incorporated an area (the yard) for the reception of heavy delivery vehicles, which could only be accessed for that purpose via a larger service area (the common service area) included in the “common parts”, as defined by the lease, and also used for access to units 2A and 2B. Under the terms of the lease, the claimant had the right “to pass and re-pass over the roads and accessways… on the Common Parts”.
For reasons of efficiency and prevention of theft, the defendant adopted a policy of “one in, one out”, which permitted only one vehicle at a time to be unloaded at the yard. Accordingly, there were times when vehicles destined for the warehouse had to wait in the common service area. There was no evidence of serious inconvenience to vehicles going to and from the other units.
In January 1998 the defendant, acting pursuant to a planning permission that had been strongly opposed by the claimant, informed the claimant that it intended to add 3,500 sq ft to unit 2A. It was not disputed that the effect of such work, if carried out, would be to reduce the common service area by 26%, with a consequent reduction in the diameter of the existing turning area (which lay immediately behind unit 2A) from 28.5m to 21m. The claimant sought an injunction to restrain the intended work, contending that it would amount to an actionable interference with the right of passage granted by the lease.
After considering expert evidence, much of which was based upon recommendations contained in “Designing for Deliveries”, published by the Freight Transport Association, the judge found as a fact that the work would have the effect both of obliging drivers to undertake appreciably more complex manoeuvres and of creating serious obstructions as and when a vehicle happened to be carelessly parked. It was further found that those effects would not be alleviated by any change to the claimant’s “one in, one out” policy.
Held: The injunction was granted.
1. There was no actionable interference with a right of way if the right could be substantially and practically exercised as conveniently after the occurrence complained of as before it: see per Mummery LJ, summarising the relevant principles in West v Sharp (2000) 79 P&CR 327 at p332. Applying the judgment of Scott J in Celsteel Ltd v Alton House Ltd [1985] 1 WLR 204, the claimant was correct in submitting that: (i) the test was not as to the reasonableness of what the grantee was left with, but as to the reasonableness of its insistence upon being able to continue using the whole of what had been contracted for; (ii) unless the grantee’s preference was unreasonable or perverse, the grantor could not deprive him of his preferred modus operandi and then argue that someone else would prefer to do things differently; and (iii) if the grantee had contracted for the relative luxury of an ample right, he was not to be deprived of that right merely because the reduced, non-ample right would be all that was reasonably required. Furthermore, the fact that an interference was infrequent, and relatively fleeting when it occurred, did not mean that it could not be actionable: see CP Holdings Ltd v Dugdale [1998] PLSCS 173.
2. The conclusion that there would be substantial interference was not affected by the issue of whether the claimant’s vehicles had any right to wait in the common service area in compliance with its unloading policy. Some waiting in that area was inescapable.
Jonathan Gaunt QC and Tom Adam (instructed by Bond Pearce, of Southampton) appeared for the claimant; Michael Booth QC and Paul Tucker (instructed by Wacks Caller, of Manchester) appeared for the defendant.
Alan Cooklin, barrister
