Council granting lease of land used as bus service station — Condition of lease that public lavatories provided and maintained — Tenant closing toilets following vandalism — Council alleging breach of covenant — County court finding positive obligation to keep lavatories open — Court of Appeal allowing appeal against that decision
The council were the freehold owner of the land and property at Union Street, Chorley, Lancashire, known as Chorley Bus Station. By an agreement dated May 3 1973 the council granted a lease of the land to the company for a term of 99 years from April 1 1966 at an annual rent of £500 payable in equal quarterly instalments.
A condition of obtaining the lease was the provision of toilet facilities. Clause 2(e) of the lease provided for the inclusion of public lavatories in the bus station to be conducted in a decent, respectable and orderly manner so as not to cause a nuisance or annoyance to the neighbourhood or to the public attending the station.
The tenant company found that obligation onerous. They experienced blockages of the toilets and various forms of vandalism. After some years they took the view that they would avoid the obligation to repair and maintain by simply closing the toilets altogether. The council objected and applied to the court for an injunction requiring the tenant to keep the lavatories open. The county court held that on the true construction of clause 2(c) the lavatories were required to be kept open, at least as long as the bus station was kept open to the public. The tenant appealed contending that the judge erred in holding that the tenant was in breach of covenant by closing the toilets. He also erred in finding that even if there was no express obligation to keep the toilets open there was an implied term that they should not be closed.
Held The appeal was allowed.
1. The closure of the lavatories could not constitute a failure by the company to conduct the same “in a decent and respectable and ordinary manner” in any ordinary sense of those words.
2. Neither could their closure amount to causing a “nuisance or annoyance” to the neighbourhood or to the public attending the bus station.
3. Nuisance had to be construed in the sense in which it was understood under the general law and annoyance fell to be construed as something which materially affected the peace of mind or physical comfort of ordinary sensible people: see National Schizophrenia Fellowship v Ribble Estates SA [1994] 1 EGLR 181.
4. Under the terms of the lease the company was not under any obligation to keep open the bus station and could shut it down without being in breach of covenant. The user clause 2(d) of the lease was in substance a negative one “not to use for any purpose other than that of a motor omnibus station” and did not oblige the company to carry on that use.
5. Further, it was not an implied term of the lease that the lavatories should be kept open. The provision of public lavatories was not necessary to give the bus station commercial efficacy and a bystander was unlikely to regard it as such.
David Dennis (instructed by Blackhurst Parker & Yates, of Preston) appeared for the company; Paul Chaisty (instructed by the solicitor to Chorley Borough Council) appeared for the council.
