Easements –– Right of way –– Interference –– Service access to retail warehouse –– Proposed obstruction –– Test of actionable interference to right of way –– Whether test of necessity (or reasonable necessity) or of convenience –– Whether right of way could be substantially and practically exercised with obstruction as conveniently as without it
By a lease dated 23 December 1998, the claimant held a 25-year term of a large warehouse (unit 1) in a retail park, which comprised four separate units owned by the defendant. The defendant intended to construct an extension to unit 2A on an area that formed part of the common parts of the park and that was the only means of service access to unit 1. The extension would reduce the area by 26%, and would reduce a turning circle it provided from 28.5m to 21m. The lease contained an express grant to pass and repass over the area. The claimant had a policy of unloading only one vehicle at a time within unit 1, which meant that vehicles frequently waited in the service access. The claimant contended that the proposed extension would constitute a breach of the lessors covenant for quiet enjoyment, and, separately, an actionable nuisance with its right of way.
Held: The claimant was entitled to an injunction. The use of the service access by the claimant’s delivery vehicles for waiting purposes, in connection with its policy of allowing only one vehicle at a time to be unloaded within unit 1, was not necessarily implicit in, or ancillary to, the grant in the lease of a right to pass and repass. In considering whether there would be an actionable interference with the right of way, the test was whether the right of way could be substantially and practically exercised as conveniently as before. The proposed extension and reduction in the service access would create practical difficulties, mostly during the weekday, mid-morning period. These difficulties would occur sufficiently frequently to justify the claimant’s complaint that its right to pass over, and turn in, the service access would be rendered materially less convenient than before. The claim for breach of covenant added nothing to the claim in nuisance.
The following cases are referred to in this report.
Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204; [1985] 2 All ER 562
CP Holdings Ltd v Dugdale [1998] NPC 97
McIlraith v Grady [1968] 1 QB 468; [1967] 3 WLR 1331; [1967] 3 All ER 625, CA
VT Engineering Ltd v Richard Barland & Co Ltd (1968) 19 P&CR 890; 207 EG 247
West v Sharp (2000) 79 P&CR 327
This was a claim by B&Q plc for injunctive relief against the defendant, Liverpool & Lancashire Properties Ltd.
Jonathan Gaunt QC and Thomas Adam (instructed by Bond Pearce, of Southampton) appeared for the claimant; Michael Booth QC and Paul Tucker (instructed by Wacks Caller, of Manchester) represented the defendant.
Giving judgment, BLACKBURNE J said:
Introduction
This is the trial of an action in which the claimant, B&Q plc (B&Q), seeks to prevent the defendant, Liverpool & Lancashire Properties Ltd (L&L) from constructing a 3,500 sq ft extension to the rear of unit 2A at Bidston Moss retail park, Wallasey, in the county of Merseyside. The
I have already described the retail park in the judgment I gave dismissing L&L’s claim to forfeit B&Q’s lease of unit 1. The description that follows is taken very largely from that judgment.
The park comprises four separate units, units 1, 2A, 2B and 3. In February of this year, L&L acquired the freehold of an adjoining warehouse, with ancillary car-parking and servicing facilities, which had already been let to MFI. The acquisition has had the effect of adding a further unit to the retail park. Unit 1 is by far the largest unit at the park, covering an area of well over 150,000 sq ft. It consists of a DIY retail warehouse of approximately 100,000 sq ft, a garden centre of approximately 25,000 sq ft, a building yard of approximately 21,000 sq ft and a service yard and access way covering the remainder of the demised site. The garden centre adjoins the warehouse on its southern side; the building yard adjoins the warehouse on its northern side, with the service yard in the north-eastern corner of the site. Immediately adjoining the garden centre on its southern side are units 2A and 2B. Each has a covered area of 10,000 sq ft. Unit 2A, which is let to Allied Carpets, lies nearest to the garden centre, with unit 2B, which is let to Harveys, adjoining it on its southern side. On the front, ie western, side of this complex is a customer car park. It consists of 641 parking spaces. As is customary in such developments, the parking spaces are marked on the ground. They are ranged back-to-back in a series of aisles set at right angles to the units that they front. Access to the retail park is by an entry point at its south-western corner. The access road curves round unit 3, which is situated in the south-west of the retail park and to the immediate south of the large customer car-parking area. Unit 3 is let to Halfords, and opened for business late last year. Where it meets unit 2B, the access road divides into two; one arm leads immediately to the customer car park; the other arm gives access to the service yard behind (ie to the south of) unit 2B, and then, turning the corner, along the back (ie the eastern side) of units 2B and 2A. Access into the service area forming part of the demise of unit 1 to B&Q is via an entrance lying between the south-eastern corner of the garden centre and the eastern boundary of the retail park. The entrance is marked by large double gates. The area beyond those gates lies immediately behind the garden centre. The service area at that point is rectangular in shape and is 15m wide and 33m long. Moving north, the service area narrows to form a service road along the whole of the eastern side of the retail warehouse. The service road is wide enough to enable large lorries to pass each other. At its narrowest point it is 6.1m wide. It is separated from the warehouse by a narrow footway. At the north-eastern corner of the warehouse, the access road opens into unit 1’s service yard, which is rectangular in shape. In one corner of the yard, the surface slopes down to form two so-called dock levellers. The levellers are such that a forklift truck can pass straight from the inside of the warehouse onto the floor of an articulated lorry trailer, which, when reversed down the ramp, can be parked with its rear end flush against the warehouse. The northern and eastern boundaries of unit 1 are marked by a fence. That fence also marks part of the perimeter of the retail park.
B&Q holds unit 1 under a lease from L&L dated 23 October 1998. It does so in succession to an earlier agreement for lease between Saddlewood and itself dated 6 December 1995. The lease is for a term of 25 years from 16 January 1997, and at a rent, subject to five-year reviews, of £895,152.50.
The present action, which was launched 10 months before L&L’s unsuccessful forfeiture action, is concerned with the area behind units 2A and 2B. That area forms part of the common parts of the retail park. It provides a means of access for lorries and other vehicles servicing units 2A and 2B and, no less importantly, unit 1. Indeed, it is the only means of service access to unit 1. All deliveries to and from the unit must pass over it. For convenience, I will call the area behind units 2A and 2B “the unit 2 service yard”.
B&Q claims that the construction of a 3,500 sq ft extension to the rear of unit 2A (as L&L intends to do) will constitute a breach of the lessor’s covenant for quiet enjoyment contained in its lease, and, separately, an actionable interference with its right of way over the unit 2 service yard granted to it under its lease.
Lease
The relevant provisions in B&Q’s lease are as follows. The covenant for quiet enjoyment, which is in common form, is contained in clause 5.1, and is in these terms:
That the Lessee paying the rents made payable hereunder and performing the Lessee’s covenants hereinbefore contained shall and may peaceably enjoy the Demised Premises for the Term without any interruption by the Lessor or any person lawfully claiming through under or in trust for the Lessor or by title paramount.
The right of way over the unit 2 service area is part of a larger right of way extending to the whole of the common parts of the retail park. It is to be found in para 2 of Schedule 2 to the lease, and is in the following terms:
The right for the Lessee and all persons authorised by it in common aforesaid to pass and repass over the roads and accessways and on foot only over and along the pedestrian areas and footpaths on the Common Parts (as hereinafter defined).
The common parts are defined by para 1.1(a) of part 2 to Schedule 4 as:
The Car Park footways common service areas service roads circulation areas forecourts landscaped areas and other amenities on the Estate…
Whether there is any difference, arising out of the proposed extension to unit 2A, between what must be shown to give rise to a breach of the covenant for quiet enjoyment and what must be shown to give rise to an actionable interference with B&Q’s right of way over the common parts, I will examine later. I must first set out the relevant background to this dispute.
Background
B&Q, as is well known, operates large DIY stores up and down the country. By the early 1990s, B&Q was evolving a strategy of building extremely large stores that were much bigger than the 30,000 sq ft stores, known as supercentres, that had hitherto been in vogue. By 1995 it had developed the so-called warehouse concept, comprising a main 100,000 sq ft rectangular building, with an uncovered garden centre of around 30,000 sq ft at one end and a building yard of around 20,000 sq ft at the other. Within the main store would be the ancillary offices and the goods-handling areas. At the front of the store would be a customer car park for 600 or so vehicles, together with trolley bays and a pick-up point for building materials, including a collection point providing access and loading facilities for trade customers. At the back of the store would be a service yard running the entire length of the main building and flanking the garden centre and the building yard. The service yard, at the building yard end, would be large enough to accommodate a double so-called dock-levelling facility for the efficient unloading, direct into the store, of certain types of goods, a turning area for lorries, together with space for the temporary storage of goods awaiting delivery to customers and for certain very bulky products (eg large bags of aggregate, bricks, paving slabs and other such items). To avoid the store running short between deliveries, the service yard would also provide storage for extra stocks of items likely to be in demand at certain peak selling times, especially around bank holidays. It would also provide space for rubbish skips, the temporary storage of empty wooden pallets awaiting collection, parking for B&Q’s delivery vehicles and other ancillary activities. Ideally, access to the service area at the back would be from either side of the overall complex.
To a very large extent, B&Q’s store at Midston Moss exemplifies this format. The principal respect in which it does not is the fact that
Negotiations between B&Q and Saddlewood Investments Ltd, the former freehold owner of the site, which eventually led to agreement over the provision of the new warehouse store, extended over very many months. B&Q already had a 35,000 sq ft store (of the superstore variety), opened in April 1982, at the site. The new development involved B&Q surrendering its existing store: without B&Q’s co-operation, therefore, the development could not proceed. The course of negotiations was, to some extent, held up by litigation in progress between Saddlewood, an intermediate leaseholder and Wirral Metropolitan Borough Council, the local authority.
Initial proposals failed to meet B&Q’s store configuration and its standards for car-parking and servicing facilities. By early 1994, with an end expected to the tripartite litigation, various alternative schemes for the comprehensive development of the site were under discussion between B&Q and Saddlewood. A difficulty was Saddlewood’s wish to include additional retail units and a restaurant at the site to enhance its financial return. B&Q had no objection to some additional retail floor space, complementary to its own business, but objected to the amount and configuration of what Saddlewood was proposing. I accept that a prime concern of B&Q was the effect such additional retail units would have upon the servicing of the space it was proposing to take and upon the adequacy of the customer car-parking facilities.
After a lull in the negotiations during the second half of 1994, discussions picked up again in early 1995. B&Q remained concerned about the adequacy of the service area at the southern end of the proposed new store. By mid-1995, however, the proposed layout had evolved to the extent that, for good practical reasons, relating to the configuration of the site and the need, so far as possible, to keep service vehicles separate from customer car parking, access to the service area at the back of the new unit was to be via the south of the proposed new complex only. Relevant to this, and to B&Q’s willingness to proceed, were the size of the proposed new unit 2, which, after negotiation, was fixed at 20,000 sq ft, and the provision (as shown on the layout plan under discussion) of a triangular-shaped service yard, with enough room to accommodate a 25m turning circle, in the area behind the proposed unit 2, immediately outside the gates of what, when constructed, would be unit 1, ie the unit to be let to B&Q.
Following the conclusion of Saddlewood’s tripartite litigation, the way became clear for Saddlewood and B&Q to enter into a binding commitment for the development. This resulted in the signing and exchange of an agreement for lease dated 6 December 1995, the site plan to which showed, inter alia, the triangular-shaped southern service yard with a 25m turning circle that later formed the basis of plan 1 to the lease.
Detailed planning permission for the scheme having been obtained in December 1995, construction work began in early 1996. All went smoothly at first. In early July of that year, however, a rumour reached B&Q that unit 2 was to be increased in size beyond the 20,000 sq ft shown on the site plan. A letter of inquiry about the matter was sent by B&Q to Saddlewood’s agents. A fortnight later, Saddlewood’s project manager wrote to B&Q to say that Saddlewood had been granted planning permission for a new, and larger, unit 2, and that it intended to implement the permission without delay. The new permission, if implemented, would have added 5,000 sq ft to unit 2, increasing it by 25% to 25,000 sq ft. Most of the enlarged building would have been at the rear of unit 2A, ie that half of the overall unit that adjoins unit 1.
B&Q took the view that the resulting development would have looked very much like the proposal that Saddlewood had originally put forward in early 1994, which B&Q had rejected. The 25m turning circle shown on the site plan behind unit 2 (ie in the unit 2 service yard) would have been reduced to 20m in diameter, leaving little space between the circle edge and, on the one side, the perimeter fence forming the boundary of the site (marked by a fence) adjacent to the gates into unit 1, and, on the other side, the eastern flank of the extended unit 2. B&Q took the view that the reduction in the size of the unit 2 service yard, which would be the consequence of the extension, would adversely affect the manoeuvring of vehicles in that area, impede ease of service vehicle access into and out of unit 1 and place additional pressure upon car-parking facilities on the overall site. B&Q claimed that, in acting as it had done, and intended to do, Saddlewood was in breach of its obligations to B&Q under the agreement for lease dated 6 December 1995.
Saddlewood refused to back down from its wish to implement the extension proposal, whereupon B&Q launched proceedings for injunctive relief. The claim was defended. On 7 August 1996 B&Q obtained an interlocutory injunction to restrain the enlargement of unit 2, the scheme that came to be known as scheme B. Later that year, however, Saddlewood decided to abandon that scheme in favour of another, which has been referred to as scheme C. In December 1996 the proceedings were compromised by an order, whereby (so far as material) Saddlewood undertook not to implement any scheme for the extension of unit 2 without giving B&Q 28 days’ advance notice in writing of its intention to do so.
Scheme C involved the acquisition from Wirral council of a strip of land along the eastern perimeter of the site adjacent to the unit 2 service area, which, if added to the existing common parts, would have restored some of the space lost to the adjacent common parts if scheme B had been implemented. In February 1997 Saddlewood obtained planning permission for scheme C. As matters have turned out, however, although the strip is still thought to be available for purchase, no steps have been taken to acquire it, with the result that scheme C has not been, and cannot yet be, implemented. I do not consider that the fact that scheme C may yet be capable of implementation is relevant to the issues I have to decide. Nor do I think it profitable to examine who (if anyone) is to blame for the fact that the possibility of its purchase has not been pursued.
The construction and fitting out of unit 1 were completed in the early weeks of 1997. On 7 February 1997 B&Q began to trade from the new unit.
On 30 June of that year L&L acquired the leasehold of the overall site from Saddlewood. Just under six months later, on 12 December, L&L was granted planning permission, against B&Q’s objection, to construct a 5,000 sq ft extension to unit 2. The earlier permission to the same effect had been quashed, through Saddlewood’s failure (as the then applicant) to give notice to B&Q of its application for such consent. Later that same month (December 1997), Saddlewood, although no longer the owner of the site, gave B&Q 28 days’ written notice of L&L’s intended implementation of the new consent.
B&Q again threatened proceedings, claiming, on this occasion, that, in giving 28 days’ notice, insufficient information had been supplied to fulfil Saddlewood’s obligation under the consent order that had resolved the earlier proceedings. L&L’s response, acting by agents, was to complain that B&Q, although in occupation of, and trading from, unit 1, owed rent, and had failed to execute the lease of the unit. The agents indicated that, as soon as those matters were remedied, they were instructed by L&L to deal with any reasonable inquiry. In the meantime, they stated that “the landlord [L&L] has asked us to confirm it will not be constructing the extension of the 3,500 square feet behind the Allied Carpets part of unit 2 [ie unit 2A]”, effectively until it had constructed what is now unit 3, occupied by Halfords.
B&Q was puzzled by the reference to 3,500 sq ft. This was because the planning consent of 12 December 1997 related to a further 5,000 sq ft extension. It wrote to L&L’s agents reserving its rights; sought undertakings from L&L not to construct any extension to unit 2 without first giving its (B&Q’s) solicitors notice of its intention to start works; and threatened proceedings if the undertakings were not forthcoming.
In response, Saddlewood (not L&L) wrote to B&Q’s solicitors to explain that what the current landlord (ie L&L) proposed to do was to implement that part of the planning consent that related to the extension of unit 2A (as distinct from unit 2B), ie the construction of an extension of 3,500 sq ft only. The undertakings that B&Q had requested were
I will first consider the extent of B&Q’s rights over the unit 2 service yard, before considering whether the proposed extension will constitute an actionable interference with those rights.
Scope of B&Q’s rights over the unit 2 service yard
The right granted to B&Q (and all persons authorised by it) by para 2 of schedule 2 to its lease is, in common with the lessor and all others similarly entitled, “to pass and repass”.
In West v Sharp (2000) 79 P&CR 327, Mummery LJ said at p332:
The nature and extent of a right of way created by an express grant depends on the language of the deed of grant, construed in the context of the circumstances surrounding its execution, including the nature of the place over which the right was granted.
It was common ground that the right granted entitles B&Q’s vehicles (and also its suppliers’ vehicles) to travel over any part of the unit 2 service yard, to and from the entrance to unit 1, and to turn within that area. What was in dispute was the extent to which such vehicles may wait in the yard until allowed through the gates that give access to unit 1.
Mr Jonathan Gaunt QC, appearing for B&Q, submitted that, in the course of the reasonable and proper exercise of the right to pass and repass over the unit 2 service yard en route to unit 1, some waiting is bound to occur from time to time; for example, until the entrance gates to unit 1 are opened, or, where there is an obstruction in the path of the vehicle, until the obstruction is removed. Waiting of this kind is part and parcel, he submitted, of the right to pass and repass. Of the same nature, he submitted, is waiting in the unit 2 service yard by the gates to unit 1 while B&Q’s staff are loading or unloading a vehicle or vehicles already within the unit. He submitted that, as a practical matter, B&Q cannot be expected to have staff available to load or unload lots of vehicles simultaneously. The right, in these circumstances, to wait in the unit 2 service yard is, he submitted, either implicit in the right to pass and repass or, if not implicit, reasonably ancillary to the right.
Mr Michael Booth, QC, appearing for L&L, while accepting that the right conferred by para 2 must allow vehicles to wait until someone can get to the gates to open them, or until some temporary obstruction is removed, submitted that the right does not enable vehicles to wait –– and effectively to park in the yard in the meantime –– where the reason for the vehicles having to wait is the way that B&Q chooses to manage the process of loading and unloading visiting delivery vehicles within unit 1. This was a reference to B&Q’s policy of “one in-one out”, ie a policy, for reasons connected with the efficient operation of unit 1, of permitting only one delivery vehicle at a time into unit 1.
The policy was described by Andrew Bradley, B&Q’s general manager at the Bidston Moss store. Its purpose is to minimise the incidence of theft. Theft of one kind or another, euphemistically known in the trade as “shrinkage”, is a common problem in stores such as B&Q’s. There are many ways in which it occurs. Among them is theft by vehicle drivers, acting very often in collusion with B&Q’s own staff, from stock stored in the vicinity of the garden centre, just behind the unit 1 entrance gates. As Mr Bradley put it in his second witness statement:
The system of having security gates (which was also a system operated by my previous employers, Focus DIY and Do It All) allows my warehouse staff to control the vehicle drivers so that they do not have the opportunity of removing stock, short delivering or colluding with B&Q’s staff over warehouse deliveries. Reducing shrinkage also involves control of incoming paperwork and control of the vehicles unloading so that the stock taken from lorries is moved as soon as practicably possible to its appropriate storage location either inside the warehouse, in the bulk storage area or in the service yard. Prompt unloading of stock reduces the risk of it being damaged and also decreases the opportunity for staff to steal it.
Implementation of the policy usually involves vehicles having to wait, often for appreciable periods of time, before being admitted through the gates into the unit 1 service area. The evidence before me showed that the periods that vehicles are kept waiting, in pursuance of the policy, vary enormously. They can range from a few minutes to up to an hour, and sometimes longer.
The policy is not rigidly enforced at all times. The matter is one for the general manager’s discretion. Thus, in the immediate build-up to very busy periods, such as Easter and the May bank holiday, staff at the Bidston Moss warehouse may allow an articulated lorry to load or unload in the service yard at the north end of the unit at the same time as a van or some other small vehicle. The policy may allow a delivery vehicle into the service yard to load or unload at the same time as a delivery trailer from B&Q’s central warehouse is unloading at one of the dock levellers, or a delivery vehicle is lading or unloading at the garden centre.
Much time was taken examining this policy, its justification and the phenomenon of shrinkage. Despite Mr Booth’s attempts to demonstrate that there are better ways of combating shrinkage, particularly where B&Q’s own staff and visiting lorry drivers are concerned, I do not doubt that there are good practical reasons for the policy and the way it is implemented at Bidston Moss.
But, whether good or bad, the policy cannot, in my view, determine the scope of the right to pass and repass over the common parts conferred by B&Q’s lease. It was not suggested that the existence of the policy was known, or should have been known, to L&L at the time the lease was entered into (or to Saddlewood, as owner and landlord of the site when the antecedent agreement for lease was made). There is nothing in the layout of unit 1 that makes the queuing of vehicles in the unit 2 service yard (except for unavoidable reasons, such as an obstruction, or during the few minutes needed before the gates are opened) something necessarily implicit in, or ancillary to, the grant of the right to pass and repass. There is, for example, plenty of space within unit 1 to accommodate vehicles waiting to load or unload. The question is simply whether, for reasons connected with the way that B&Q chooses to operate its business, the right given by the lease to pass and repass carries with it the right to wait, if necessary for quite prolonged periods, on the common parts outside the unit (which, in practice, means the unit 2 service yard).
In my judgment, it does not. Neither the words of the grant nor the physical circumstances of unit 1 and its immediate surrounding area justify the right claimed. In a lease as detailed as B&Q’s lease of unit 1, I would have expected, if such a right had been intended, that it would have been clearly spelled out. In any event, Mr Childs’ evidence was that, at the time the agreement for lease was negotiated, it was not clear within B&Q that the policy would be operated.
Mr Gaunt referred me to McIlraith v Grady [1968] 1 QB 468 and VT Engineering Ltd v Richard Barland & Co Ltd (1968) 19 P&CR 890* as illustrations of the courts’ readiness to construe a grant as including some additional or ancillary right. The former was concerned with whether a right to pass and repass along the yard of what had originally been a public house included, as the Court of Appeal held that it did, a right for vehicles to stop for a reasonable time to load and unload. The latter was concerned with whether a right of way, “at all times and for all purposes”, over a roadway included an ancillary right to lateral and vertical “swing space” in the course of loading and unloading in the exercise of the principal right. Those authorities do not assist. They merely exemplify the general principle (restated by Lord Denning MR in McIlraith v Grady at p476) that every grant must be construed in the light of the circumstances.
* Editor’s note: Also reported at (1968) 207 EG 247
Having defined the scope of B&Q’s rights, I now examine whether the proposed extension will constitute an actionable interference with those rights.
Actionable infringement of a right of way
What constitutes an actionable infringement of a right of way turns on well-established principles. They were most recently summarised by Mummery LJ in West v Sharp (already referred to) at p332:
Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.
He then cited, with approval, the following passage from the judgment of Scott J in Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204 at p217B:
There emerge from the three cases I have cited [ie Clifford v Hoare (1874) LR 9 CP 362; Pettey v Parsons [1914] 2 Ch 653 and Keefe v Amor [1965] 1 QB 334] two criteria relevant to the question whether a particular interference with a right of way is actionable The interference will be actionable if it is substantial. And it will not be substantial if it does not interfere with the reasonable use of the right of way.
But what exactly is meant by “the reasonable use” of a right of way? The decision in Celsteel is illuminating in its approach to this question.
In that case, the issue was whether the narrowing of a driveway to garages and parking spaces for use by the residential tenants of a block of flats would constitute an actionable interference. The plaintiffs were the lessees of some of the flats and garages. The two defendants, one of whom was the freehold owner of the block and the other of whom was the tenant of a major part of the ground level of the block, proposed to construct a car wash on the driveway, which, if built, would have reduced the width of the driveway for about 10m to 12m of its length from 9m to 4.14m. Before considering whether this would constitute an actionable interference, Scott J considered the particular circumstances of two of the tenants. In the case of the tenant of garage no 52, the evidence established that if the car wash were built, it would no longer be practicable for that tenant to reverse into his garage, although he could continue, without any particular difficulty, to enter the garage in forward gear, reversing only to exit from it. The tenant’s preference, however, was to reverse in.
In answer to a submission that it was preferable to drive in forwards and reverse out (rather than reverse in and drive out forwards) Scott J observed at p217C:
There are advantages and disadvantages attached to both of the alternatives. Some may prefer one, others may prefer the other. In my view, a lessee whose right of way permits him to adopt either alternative as he may from time to time choose, suffers actionable interference if one alternative is precluded and he is constrained always to adopt the other. To put the point another way, use of the… driveway in order to reverse into garage 52 is a reasonable use. An obstruction which prevents that use is, accordingly, in my judgment actionable.
Scott J then went on to consider a variant of the same contention in the following passage at p217E-G:
Mr Laurence [counsel for the defendants] submitted that driving in forwards and reversing out was reasonable use of the… driveway. I agree with him. He submitted further that the proposed car wash would not substantially interfere with this particular use, and thus would not prevent reasonable access by the… plaintiff to garage 52. He argued from these premises that the car wash would not, on authority, constitute an actionable interference. I do not accept that authority justifies this argued conclusion. In the present case the test is not, in my view, whether the means of access still possible is a reasonable means of access. The correct test is whether insistence by the… plaintiff on being able to continue to use the other means of access is reasonable. In my opinion, it is. I do not think it is open to the defendants to deprive the… plaintiff of his preferred means of entry to garage 52 and then to justify themselves by arguing that most other people would prefer some other still available means of entry. Such an argument might avail the defendants if the… plaintiff’s preference were unreasonable or perverse. But, in my view, it is neither of these things.
In my view, those passages justify the following propositions advanced by Mr Gaunt: (1) the test of an actionable interference is not whether what the grantee is left with is reasonable, but whether his insistence upon being able to continue the use of the whole of what he contracted for is reasonable; (2) it is not open to the grantor to deprive the grantee of his preferred modus operandi, and then argue that someone else would prefer to do things differently, unless the grantee’s preference is unreasonable or perverse. I call them Mr Gaunt’s first and second propositions.
After considering the impact on another tenant’s ability to gain access to his garage, Scott J considered whether the narrowing of the driveway would constitute an actionable interference with the tenants’ reasonable use of it. A p218C-G he said:
There are 56 flats at Cavendish House [the block of flats]. The rear driveway may be used by all of them, their visitors and licensees. Vehicles using the rear driveway may range from small cars to large commercial vans. On occasion, lorries may require to use the driveway. The plaintiffs were granted rights of way over a driveway nine metres or thereabouts in width, but with the usable width capable of being reduced by about two metres in the event of cars being parked along the east side of the driveway. I am reluctant to accept that a grantor, having granted a right of way over a nine-metre driveway, can reduce the width of the way by more than a half over an appreciable distance and then require the grantees to accept the reduction on the ground that what is left is all that they reasonably need. It seems to me that the proposed reduction will materially and permanently detract from the quality of the rear driveway and of the plaintiffs’ rights over it… It does not seem to me possible to say that the permanent narrowing of the rear driveway from nine to 4.14 metres over the length of the proposed car wash would leave the rear driveway as convenient for the reasonable use of the plaintiffs as it was before the reduction. The plaintiffs have been granted a right of way over a nine-metre driveway. The enjoyment thereof to which they are entitled under their respective grants cannot, in my judgment, be limited by requiring them to accept a 4.14 metre driveway. If the freeholders wanted the right to construct a car wash on the driveway and thereby to reduce its width to 4.14 metres it was, in my judgment, incumbent on them to reserve that right in the leases. Not having done so, they are not, in my view, entitled to remedy the omission by arguing that 4.14 metres is all the plaintiffs reasonably need. The plaintiffs are, in my judgment, entitled under their grants to the relative luxury, if that is what it is, of a nine-metre right of way. That, after all, is part of what they have paid for.
That passage justifies the following further proposition advanced by Mr Gaunt, which I call Mr Gaunt’s third proposition, namely that if the grantee has contracted for the “relative luxury” of an ample right, he is not to be deprived of that right, in the absence of an explicit reservation of a right to build upon it, merely because it is a relative luxury, and the reduced, non-ample right would be all that was reasonably required.
In short, the test, as Mr Gaunt submitted, is one of convenience, and not of necessity or reasonable necessity. Provided that what the grantee is insisting upon is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
Applying that test to the facts of this case, the question is whether B&Q’s (and its suppliers’) vehicles will be able, substantially and practically, to exercise the right of way over the unit 2 service yard to unit 1 as conveniently after the extension to unit 2A has been built as they can now. To answer that question, I must first consider how the unit 2 service yard is currently used.
Unit 2 service yard: its current configuration and use
In its present form, the unit 2 service yard is triangular in shape. It can accommodate a turning circle of approximate 28.5m. Its northern edge is marked by the boundary fence separating unit 2 from unit 1 (with the access gates into unit 1 at the fence’s eastern end), and its western edge by the rear wall (with service entrances in it) of the building comprising units 2A and 2B. Its eastern edge is the retail park’s
The unit 2 service yard accommodates the following functions: the servicing of units 2A and 2B (ie by their own and visiting vehicles, including lorries bringing and removing skips); the turning of vehicles visiting those units; vehicles entering and leaving unit 1; and the turning of vehicles visiting unit 1.
It is common ground that the unit 2 service yard, as it presently exists, is well able to accommodate these various functions, covering, as they do, the activities of three separate businesses (B&Q’s at unit 1, Allied Carpets’ at unit 2A and Harveys’ at unit 2B). Some give and take between users of the yard is necessary, and, it would seem, provided, particularly where, as happens for much of the working day, there are one or more –– but seldom more than four –– vehicles waiting to enter unit 1. These vehicles queue parallel to the eastern perimeter fence, ie well away from the entrance doors to units 2A and 2B. As I have already mentioned, B&Q’s policy of one in-one out means that the waiting time for the vehicles ranges from a few minutes to over an hour, depending upon the progress of loading or unloading within unit 1.
It frequently happens that vehicles servicing unit 2A will park end-on to the service entrance, ie at right angles to that building, with the front of the vehicle facing into the middle of the service yard. When an articulated lorry is parked in this position, other lorries can no longer execute a U-turn in the remainder of the yard. This is, currently, a very infrequent occurrence, and, when it occurs, occasions no particular difficulty. Other vehicles wishing to turn either execute a different form of turn or wait until the lorry so parked has left the yard or moves to enable them to pass. A lorry so parked does not inhibit the passage into or out of unit 1 of vehicles that have no need for the unit 2 service yard to turn in.
There was much evidence about the level of use of the unit 2 service yard. The principle source was a video that recorded vehicle movements between 8am and 6pm during the course of the second working week last September. The information derived from that recording was analysed in a number of different ways: (1) the absolute number of vehicles visiting the yard; (2) which unit each vehicle was visiting; (3) the type of vehicle (ie articulated, rigid, small van or, in one or two cases, drawbar); (4) the number of minutes each vehicle was in the yard; and (5) the periods when, unit by unit, there were one, two, three, four, five (or more) vehicles in the yard. The results of this industry were variously presented as graphs, pie charts, bar charts and columns of summarised information. The data was also the subject of much discussion in the reports of the two traffic experts, Mr Ian Ayres, who was called by B&Q, and Mr Bryan Hall, called by L&L.
At the end of the day, there was little dispute about the underlying facts. Although the periods of activity selected for analysis by the two experts differed (Mr Hall’s was the working week in September 1999, to which the video recording related, while Mr Ayres’ was February 1999), it was not suggested that the traffic movements that they disclosed were untypical of yard activity. Because I regard Mr Hall’s analysis, based upon a continuous video recording, as the more reliable, I prefer to take the information from his analysis as the more accurate indicator of the nature and intensity of vehicular use of the yard.
Taking the period analysed by Mr Hall, the evidence justifies the following conclusions: (1) B&Q’s operations at unit 1 generate at least 70 traffic movements each working day through the unit 2 service yard, with the activity continuing throughout most of the day; (2) for between approximately 10% and 30% of each working day (the percentage varies), there is at least one vehicle in the yard behind unit 2A; (3) there is rarely more than one vehicle serving unit 2B, and such visits as there are last, in the aggregate, no more than one hour or so each day; (4) there is what Mr Gaunt referred to as a “regular morning peak” of vehicle activity between roughly 9am and 10am (the period fluctuates), when there are often two or three vehicles serving unit 2A and two or more vehicles waiting to gain entry to unit 1.
Of the vehicles visiting unit 1, the large majority enter and exit in forward gear, and do not, therefore, need to turn in the unit 2 service yard. This is because, upon entering unit 1, they go to the service yard at the unit’s northern end, load or unload, turn around in the turning area provided in that yard and then exit, in forward gear, through the gates. However, a significant number of vehicles visiting unit 1 use the unit 2 service yard in which to turn around. Until L&L complained about it and the practice stopped sometime in October 1999 (the matter is the subject of yet other proceedings between the two parties), some of B&Q’s, and its suppliers’, vehicles would unload in the unit 2 service yard. These involved what were referred to as “small deliveries”, ie deliveries of maybe no more than a few packages, rather than a lorry-load of items. The delivery might, nevertheless, be made by a large articulated vehicle. Other deliveries would be direct to the garden centre, with the vehicle entering unit 1 and depositing the goods in the garden centre service area just beyond the entrance gates. The vehicles would not travel up to the northern service yard to turn. Instead, they would either turn in the unit 2 service yard and reverse through the gates to unit 1 to the garden centre service area behind, exiting afterwards in forward gear, or else enter in forward gear and reverse out afterwards, turning in the unit 2 service yard before driving off. Together, these movements accounted for about 30% of the vehicles visiting unit 1 during the sample period covered by the video evidence. Now that none may unload in the unit 2 service yard, there was considerable debate about how many of these vehicles unload in, and turn around in, the northern service yard, rather than deposit their load at the southern end and rely upon the unit 2 service yard in which to turn. I was wholly unpersuaded by Mr Hall’s belief (for it was not based upon any research) that many of these vehicles now travel up to, unload at, and turn around in, the northern service yard. Finding it convenient, until stopped by L&L from doing so, to unload at the southern end (albeit in the unit 2 service yard) there is no reason, in my view, why the vast majority of them do not continue to find it more convenient to unload at the southern end, albeit on the unit 1 side of the entrance gates. Doing so enables such vehicles to avoid getting caught up in B&Q’s one in-one out policy. It is, therefore, more likely than not that such vehicles will continue to require the conveniently-located unit 2 service yard as the place within which to turn around.
That being the current pattern of use, the next question is what the effect on that pattern will be of a 3,500 sq ft increase to unit 2A, extending into the unit 2 service yard.
Unit 2 service yard: the proposed extension and its effect on use
The extension, if built, will reduce the area of the unit 2 service yard by 26% and the portion of the yard that lies immediately behind unit 2A by 41%. The lease plan shows a 25m turning circle in that part of the yard that lies immediately behind unit 2A, with space between the edge of the turning circle and the extremities of the yard. Overall, the existing turning area is approximately 28.5m in diameter. If the extension is built, the turning circle will be reduced to a maximum of 21m.
There was considerable debate between the experts on the adequacy of the reduced yard for turning in, and for servicing, units 2A and 2B, and accommodating the needs of B&Q’s delivery vehicles. Much of it was by reference to a publication produced by the Freight Transport Association, Designing for Deliveries. The publication contains design recommendations for parking and turning areas for the use of large vehicles. The recommendations, while warning against allocating too little space for such matters, counselled against the temptation of falling into what was referred to as “the worse case scenario trap”, ie of designing to standards that are overgenerous and wasteful of space. Of the recommended criteria, those agreed by the experts as relevant to the unit 2 service yard were that: (1) the design should be ample for the great majority of vehicles that will have to use the facility, and be
The experts disagreed, however, over the application of this advice to the adequacy, or otherwise, of the unit 2 service yard, if reduced in area by the proposed extension to unit 2A. Mr Ayres was of the view that to reduce the effective diameter of the turning area from 28m to 21m would be to render what was left significantly less convenient than before. Mr Hall, by contrast, considered that the reduced yard would be neither too small for vehicles to turn around in nor too large to be wasteful of space.
It was clear, however, that Mr Hall was considering the adequacy of the reduced yard purely from the point of view of the needs of a 23,500 sq ft building, and largely ignored the additional demands upon that space by vehicles on passage to and from unit 1, and, in particular, by those that would wish to turn around in the yard. His view was that since unit 1 had a separate turning area, 25m in diameter or thereabouts, in its own service yard at the northern end of its demise, vehicles visiting unit 1 that wished to turn around in the reduced unit 2 service yard, but found that they could not, could resort to that northern service yard in which to do so. In short, if B&Q delivery vehicles are able to turn in the reduced unit 2 service yard, all well and good, but, with the availability of the northern service yard, there was no need to provide for them if they could not.
The difficulty with this approach, which may be acceptable as a matter of industry design standards, is, as Mr Gaunt pointed out, that it wholly ignores the right of B&Q’s delivery vehicles to turn in the unit 2 service yard, and effectively forces them, on those occasions when their ability to turn, without inconvenience, is denied to them, to have to adopt a means of turning (in the northern service yard) that would be unwelcome to them (since they would prefer to turn in the unit 2 service yard) and would be inconvenient to B&Q, having regard to the way in which it reasonably chooses to operate its service area facilities. For B&Q, having bargained for, and obtained, the right to turn in the unit 2 service yard, to force its vehicles to resort to some other means of turning, however adequate those other means may be, would be contrary to Mr Gaunt’s third proposition, and, arguably, his second as well.
Mr Booth submitted that a unit 2 service yard reduced in area by the proposed extension will not prevent any ordinary turning manoeuvre by any vehicles likely to want to use the service yard for that purpose. In other words, with a 20m to 21m turning circle, the yard will remain large enough to enable any reasonable manoeuvre to be carried out by any articulated lorry up to 16.5m in length, or by any 10m rigid vehicle (being the longest standard lengths of such vehicles), or a drawbar vehicle (of which, upon the evidence, very few ever visit the yard) likely to want to turn in the yard. In short, the reduced area will be sufficient in size to enable these manoeuvres to be conveniently and practically carried out. The real question, he submitted, is the effect upon this of other vehicles using the yard. As to this, he submitted, the data collected by Mr Hall suggests that, for most of the time, the unit 2 service yard is empty apart from B&Q’s own delivery vehicles. If, therefore, a B&Q delivery vehicle wishes to turn within the reduced service yard, it will be able to do so practically and conveniently. At the very most, he submitted, only 30% of delivery vehicles visiting unit 1 are likely to want to use the unit 2 service yard to turn in. The likely reality, he submitted, is that such use of the yard would be rather less.
He submitted that when other vehicles are servicing unit 2A, they are usually small vehicles, since the evidence suggests that articulated and drawbar vehicles only visit unit 2 three or so times a week. Such use as there is of the service yard by vehicles servicing unit 2A will not prevent rigid vehicles visiting unit 1 from executing three-point turns where they need to do so in the reduced service yard area. But even if, because of the size of the vehicle servicing unit 2A, or the manner in which it is parked, there is an obstruction to a vehicle visiting unit 1, the difficulty can be overcome either by driver co-operation (which is forthcoming, where obstructions occur, with the yard as it presently exists) or by the vehicle: (1) waiting until the obstruction is removed (and since, in any event, B&Q’s delivery vehicles are required to wait, under the one in-one out policy, sometimes for quite appreciable periods, they are unlikely to object if they must wait a few minutes while a temporary obstruction is removed); or (2) undertaking a tighter turn (even one involving a 16.5m so-called “tight banjo” turn, to which there can be no reasonable objection if, on rare occasions, circumstances compel such a tight turn); or, if necessary, (3) turning in B&Q’s own service yard at the northern end of unit 1.
It was, above all, important to appreciate, he submitted, that such problems are likely to arise only very infrequently. Most vehicles entering and leaving unit 1 do so in forward gear, and have no need to use the unit 2 service yard for turning in, and, for those that do, the unit 2 service yard is, for most of its time, entirely empty of vehicles serving either unit 2A or unit 2B. The only other vehicles in the service yard are likely to be B&Q’s own delivery vehicles, whose rights do not include any right to wait (and thereby to obstruct the yard), in compliance with B&Q’s one in-one out policy.
I hope I have adequately summarised Mr Booth’s submissions.
Actionable interference: conclusion
I confess that I approach with considerable scepticism the contention that a reduction in the overall area of the yard by 26%, and in the effective turning diameter from 28m to 21m, will nevertheless leave B&Q, and its delivery vehicles, sufficient space to enable the right conferred by B&Q’s lease to be exercised as conveniently as before. The reduction in space clearly involves an interference with B&Q’s rights. The question is what the degree of that interference is likely to be.
As to that, there can be no doubt that, with the yard reduced in area as proposed, some increase in the level of obstruction caused by one vehicle to another is inevitable, as will be the need for vehicles to execute more intricate turning manoeuvres. This was graphically illustrated by a series of computer-simulated vehicle track assessments involving: (1) a 16.5m articulated lorry; and (2) a 10m rigid vehicle. These are the maximum standard lengths of vehicles of those kinds. The results of the assessments were summarised in an appendix to a joint statement prepared by the two traffic experts. The assessments illustrated how a series of vehicle movements can be undertaken using rigid and articulated vehicles, first, when the yard is as it presently exists, and, second, when the yard is reduced in area by the proposed extension. Several of the manoeuvres are rendered appreciably more complex once the turning area is reduced. Moreover, the various track assessments are all of manoeuvres that can be accomplished; they take no account of obstructions –– such as a carelessly parked vehicle or skip –– that make it impossible to turn in the reduced area. The added difficulty of accomplishing various of these movements was vividly
At the end of the day, however, the question is whether difficulties of this kind, ie movements made more difficult than they would otherwise have been if the area of the unit 2 service yard had not been reduced, are likely, in practice, to occur so infrequently and, when they do occur, can be overcome by the obstructed vehicle either waiting or resorting to the turning area in the northern service yard or relying upon driver co-operation, that they can, for all practical purposes, be ignored. If they can, then it cannot be said that the effect is to prevent the right conferred upon B&Q from being substantially and practically exercised as conveniently after the extension has been built as before.
Viewing the evidence as a whole, I have come to the conclusion that these difficulties, even if they occur only on weekdays, and then mostly during the mid-morning peak period, will occur sufficiently frequently to justify B&Q’s complaint that its right to pass over, and turn within, the yard will have been rendered materially less convenient than before.
In coming to this conclusion, I am entitled to take into account, as the evidence made clear, that, in the course of negotiating to take a lease of its present warehouse and ancillary facilities in place of its previous store, B&Q attached importance to the presence of a service yard, even if not within its own demise, at the southern end of the site that it was to take, and insisted that the adjoining unit, unit 2, should not exceed 20,000 sq ft in area. The fact, if fact it be, that the industry-designed standards would accept as reasonable, for the needs of those using it, a service yard smaller than the existing yard, seems to me to be neither here nor there. The benefit it bargained for, and obtained, was the larger area, and I am unable to say that it is unreasonable for B&Q to want to be free to use that larger area.
The fact that an interference with an easement is infrequent, and, when it occurs, is relatively fleeting, does not mean that the interference cannot be actionable. This is well illustrated in CP Holdings Ltd v Dugdale (Lexis transcript 30 March 1998)*. In that case, Park J held that there would be an actionable interference with a right of way across the bed of a disused railway line to a business park if the owner of the disused railway, having replaced the lines, were to erect a level crossing at the point where the right of way passes over it with a view to the barriers being lowered on a few occasions each day (and then only for a few minutes on each occasion) to enable a train to pass. The lowering of the gates would prevent access by the claimant and others (purchasers of plots on the business park and their visitors) entitled to exercise the right of way for the few minutes on each occasion that the gates were down. A factor that weighed with the judge in coming to this conclusion was that the claimant was not willing to acquire the easement if there were any possibility of there being a level crossing. At the time the grant was negotiated with the then owner of the disused line, the claimant was effectively told that there was no such risk. The judge accepted a submission that what the claimant negotiated and paid for when acquiring the easement was the grant of a right of way uninterrupted by trains, and that that was what the claimant was entitled to have. There is an echo of this in the concerns expressed by B&Q, when negotiating with Saddlewood the terms of its lease of unit 1, for access over an ample service yard to the south of its site and a limit of 20,000 sq ft on the overall size of unit 2.
* Editor’s note: Reported at [1998] NPC 97
My conclusion is not affected by whether B&Q’s delivery vehicles have any right to wait in the yard in compliance with its one in-one out policy. Some waiting in the yard is inescapable. If those vehicles are not to be permitted to wait in the yard, other than until an obstruction has been removed or, briefly, until the gates have been opened (ie they cannot use the yard as a waiting or reception area in accordance with the policy), it may be that B&Q will alter its policy and require its delivery vehicles to wait within unit 1. Equally, although I think it unlikely, it may require them to turn around and leave the service yard with a view to returning later. B&Q’s witnesses could not (or would not) say what would happen in that eventuality. But whatever B&Q does, the overall number of vehicle movements is not, I think, likely to be reduced. Indeed, there is a risk that, if L&L objects to vehicles queuing up in the service yard and B&Q requires any of them to go away and return later, the number of vehicle movements within the yard may be increased, including, not least, the number of vehicles wanting to turn around in the yard.
Other points
1. Breach of the covenant for quiet enjoyment
In view of my conclusion in relation to the position in nuisance, it is not necessary to consider at any length B&Q’s separate claim based upon a threatened breach by L&L of its covenant for quiet enjoyment of the demised premises contained in clause 5.1 of the lease. The facts and matters relied upon are exactly the same as those for the claim in nuisance.
Relevant to the claim based upon L&L’s covenant is that the expression “demised premises” includes the rights over the unit 2 service yard granted by schedule 2. The claim is only material if, to be actionable as a breach of covenant, the interference with B&Q’s rights over the unit 2 service yard requires proof of something different from (and less substantial than) what must be shown to constitute an interference actionable as a nuisance. As to this, I am of the opinion that to constitute a breach of a covenant for quiet enjoyment, an interference with an easement must be “substantial”, no less than it must where the claim is brought in nuisance. On the face of it, therefore, an action on L&L’s covenant adds nothing to B&Q’s claim in nuisance.
The fact that L&L has reserved to itself, by para 1 of schedule 3, the right, among other matters:
to build or rebuild or alter or permit or suffer to be built or rebuilt or altered any building… without obtaining consent from or making any compensation to the Lessee… but not so as to interfere with any rights granted to the Demised Premises herein or to affect the amenity or beneficial use and occupation of the Demised Premises…
does not, contrary to Mr Gaunt’s submission, mean that something less than a substantial interference with any rights granted to B&Q under the lease is all that is needed to constitute a breach of the covenant. There is a similar provision in clause 4.5 of the lease, which states that nothing in the lease should operate:
to prevent the Lessor or other the owner or owners of any land or premises adjoining or adjacent to the Demised Premises within the Estate without obtaining any consent from or making any compensation to the Lessee from… erecting or suffering to be erected on such adjoining or adjacent premises any buildings whatsoever… Provided That the lessee’s beneficial use and occupation of the Demised Premises is not thereby adversely affected…
The purpose of the reservation in schedule 3, and of the similar provision in clause 4.5, is merely to make clear what the lessor may do without interfering with any rights enjoyed by the lessee under the lease. What those two provisions do not do, in my view, is affect what must be proved to constitute a breach of the covenant for quiet enjoyment. They do not elevate into a breach conduct by the lessor that would not otherwise amount to a breach.
2. Future use of units 1 and 2
Some of the evidence before the court was directed to a consideration of the likelihood of the extended unit 2A being more attractive to a discount food retailer than the 10,000 sq ft area of that unit as it presently exists. The point of this was that a discount food retailer would, or might very well, be serviced by larger vehicles, thereby exacerbating, if only slightly, the problems that can arise from the joint use of the unit 2 service yard.
Having heard the evidence on this issue of experts called by both sides, Mr David Cheetham called by B&Q and Mr Graham Chase, by
The debate about the future of unit 2A did highlight a wider point. This is that the unit 2 service yard is required to meet the servicing needs of the tenants of units 2A and 2B, and, not least, of unit 1, throughout the terms of their respective leases. It is impossible to say what those needs may be in the future. They could well increase. That is, as it seems to me, an added reason for examining with great care a contention that a reduction in the overall size of the yard by 26% will not constitute an actionable interference to B&Q’s rights. Once built, the extension is there, and, for all practical purposes, the extra space is lost for good. Any reasonable doubt as to whether this loss will constitute an actionable interference should be resolved in B&Q’s favour.
3. Car parking
Until shortly after the start of the trial, another head of complaint by B&Q was that the increase in the size of unit 2A would lead to an increase in car-parking demand at the retail park that, on busy days, existing customer car-parking capacity would not be able to satisfy. At the joint meeting of experts to discuss the issues relevant to their expertise, Mr Hall and Mr Ayres were able to agree that “the current level of parking spaces is sufficient to meet predicted demand, even allowing for growth.” The meeting highlighted a related difficulty, however, which was congestion at peak times (so-called “dynamic operational problems”), which, they agreed, was “leading to some queuing towards the highway network and very infrequently on to it”. They disagreed over the extent to which any additional demand for parking caused by the 3,500 sq ft extension to unit 2A would exacerbate this problem. B&Q sought, at the start of the trial, to amend its statement of claim to raise this matter. L&L objected, and I upheld the objection. There remained an argument as to whether, even if, in the short to medium term, parking capacity was adequate, nevertheless, in the longer term (B&Q’s lease being for a term of 25 years), the proposed extension to unit 2A might interfere with B&Q’s rights as a result of a gradual increase in traffic movements in and out of the unit 2 service yard, and an increase in the demand for customer car-parking spaces as a result of a progressive increase in B&Q’s trade at unit 1. Rightly, as it seems to me, Mr Gaunt did not press this issue. The overall impression that I had from a reading of the experts’ reports, especially in the light of their joint statement, was that, at best, any increase in customer car parking difficulties (whether in terms of the adequacy of the absolute number of parking spaces or in terms of congestion at peak times at the point of entry to the car park) caused by any increase in the size of unit 2A was likely to be extremely marginal.
4. B&Q’s other retail stores
L&L introduced evidence relating to B&Q’s stores in Slough, Bury, Warrington and elsewhere, with a view to demonstrating how, at those other stores, B&Q managed to operate with a lesser turning space (or, in one case, with no real turning circle at all) or without resorting to a policy of one in-one out. I was not impressed by any of that evidence. The fact that, for reasons connected with the size or shape of the site, B&Q must forgo one or more features of its ideal layout and mode of operation at those locations does not mean that where, as at Bidston Moss, it has bargained for, and obtained, a site that possesses those features, it is acting unreasonably in wanting to retain them, or that it cannot complain at the prospect of being required to make do with standards that it has had to accept at those other sites.
Result
The action succeeds, and B&Q is entitled to an injunction to prevent the threatened extension. I will di
