Plans for a £20m retail and residential complex in Tunbridge Wells, Kent, may be discarded following the council’s insistence that a multi-screen cinema be built on the site.
Tunbridge Wells Borough Council refused to grant GLN (Copenhagen) Southern Ltd permission for the development in April 2003. The authority stated that, because the proposal had not provided for the construction of a cinema, it failed to meet the local plan policy for enhancing the vitality of the town.
However, GLN argued that it was barred from building a cinema under a restrictive covenant placed over part of the property by the former owner, ABC Cinemas Ltd.
The High Court has now determined that GLN is permitted to build a cinema on a part of the land that is not burdened by the covenant, and can use the restricted land for access ways or for the purpose of advertising the cinema.
The ruling means that GLN will either continue its appeal against the council’s refusal of consent, or lease the existing cinema building and construct a 10,000 sq ft office block on land to the rear, a plan that the council approved in 1987.
GLN’s land lies in a conservation area at the junction of Mount Pleasant and Church Roads. The ABC cinema, which closed in October 2000, was superseded by a multi-screen Odeon complex at Knights Park, on the town’s outskirts.
In transferring the land to GLN’s predecessor in title, ABC had restricted the transferee and any successors in title from using the property “as a cinema, for the principal purpose of use for image projection for the showing of films in an auditorium setting or for any associated or ancillary or similar use, or for any theatrical or related purpose”.
GLN subsequently proposed to develop 56,520 sq ft of shops and 22,780 sq ft of leisure facilities, along with 48 flats and parking spaces.
However, the council’s development plan envisaged that a cinema would be built on land to the rear of the present cinema site, outside the boundary of the restricted land, and that the restricted land would be used as a means of access.
In what the High Court stated was “an unusual reversal of the usual position”, GLN sought declarations that public use of the restricted land to gain access to the proposed cinema, as well as the display of signage and cinema advertising, would constitute a breach of the covenant.
Deputy Judge Kevin Garnett QC has now held that “the use of the burdened land for the purpose of gaining access to a cinema on the [neighbouring] land would not constitute use ‘as a cinema’” for the purposes of the covenant.
The judge added that because the neighbouring land was being used as a cinema, it could not also fall within the second use restriction, being that of “use for image projection”. Therefore, he said, GLN could not claim that use of the restricted land as an access way amounted to an “associated or ancillary use”, since that phrase related solely to the “image projection” restriction.
If GLN goes ahead with its planning appeal, an inspector will conduct a public inquiry into the matter in October. In the interim, local residents will have to tolerate the run-down ABC building, which has been standing empty for more than three years.
GLN (Copenhagen) Southern Ltd v ABC Cinemas and others Chancery Division (Mr Kevin Garnett QC, sitting as a deputy judge of the division) 15 July 2004.
Paul Morgan QC and Wayne Clark (instructed by Cripps Harries Hall, of Tunbridge Wells) appeared for the claimant; Edward Cole (instructed by Jeffrey Green Russell) appeared for the first and second defendants; Peter Crampin QC and Alistair Craig (instructed by the solicitor to Tunbridge Wells Borough Council) appeared for the third defendants.
References: EGi Legal News 16/7/04
