Pedestrian malls — Lessee to grant access to public — Nature of rights of public to use malls — Members of public claiming irrevocable right — County court ruling that public had equitable licence to use malls revocable for good reason — Court of Appeal upholding that decision — Judgment for lessee
The Swansgate Shopping Centre occupied a large area in the middle of Wellingborough. The council granted outline planning permission on condition that there was to be complete pedestrianisation of the new shopping mall. CIN constructed the shopping centre. The council then granted CIN a lease of the centre for a term of 125 years from April 1 1975. Clause 3(15)(b) of the lease included a covenant by CIN to allow full pedestrian access to the common parts of the demised premises between specified hours.
The defendants were young men who lived in the vicinity of Wellingborough and who, in 1991, frequented the centre. CIN alleged that their behavior caused a nuisance and by letter revoked any licence they might have had to enter the centre. When the defendants continued to frequent the centre CIN started an action seeking appropriate declarations and injunctions. The defendants claimed that they had a right with all other members of the public to enter the centre and use the walkways. The recorder concluded that there was no statutory walkways agreement relating to the pedestrian malls in the centre. However, he found that as members of the public the defendants had an equitable licence to use the malls, but the licence was revocable for good reason. CIN appealed.
Held The appeal was allowed.
1. The history of the site demonstrated an intention that the developer should provide pedestrian malls as part of the construction, but the nature of what rights the public should have over those malls was to be fixed at a later stage. Eventually the council decided to regulate the right of the public over the pedestrian malls by the form of the covenant contained in clause 3(15)(b) of the lease.
2. Clause 3 (15)(b) did not constitute a walkways agreement within section 18(1) of the Highways Act 1971. It was a requirement of that section that it should provide for the dedication by the building manager of the walkways as footpaths, ie as being subject to public rights of way. Clause 3(15)(b) contained no provision for any such dedication. It was also clear that the parties never considered that the lease created a walkways agreement.
3. The principle of equitable licence had no application in the circumstances of the present case. There was no representation by either the council or CIN that the public would have irrevocable rights to use the pedestrian malls in the centre, nor was there any evidence that any member of the public had altered his or her position in reliance upon any such representation. It was doubtful whether that principle could ever apply to create rights in favour of the public at large. It was difficult to see how the acts or omissions of those individuals who relied on a representation could create rights in favour of the public.
4. The case was remitted to the county court to be continued on the basis that CIN had the right, subject only to that to determine any licence the defendants might have to enter the centre.
Jonathan Gaunt QC and Nicholas Taggart (instructed by Nabarro Nathanson) appeared for CIN; Bruce Coles QC, James Mason and Mark Piercy (instructed by Lawrences, of Wellingborough) appeared for the defendants.
