Lease by council for express purpose of running an equestrian centre – Lessee aware that surrounding council land to be devoted to public recreation – Lessee complaining of noise and other detrimental interference with his business – Whether council wrongfully acting in derogation of grant
The defendant council were the freehold owners of Bretons, a 184-acre green belt site near Dagenham, which at all material times was designated as a centre for outdoor recreation under the control of the council. In 1980 the council put out a tender document inviting interested parties to take a lease of certain parts of Bretons for the purpose of promoting equestrian pursuits, it being explained that the remainder (the retained land), which included a lake, would be devoted, inter alia, to football, archery, model aircraft flying and angling, and that a former farmhouse on the retained land, the Tudor Barn, would continue to be used for the social activities of the Bretons Sports and Social Club.
Having responded to the invitation, the plaintiff took a 28-year lease from September 29 1981 of three separate pieces of land, totalling 9.5 acres and consisting of two open areas for grazing and exercising and a complex of barns and stables described as the Equestrian Centre. The lease conferred on the plaintiff the right, in common with the lessors, to use certain bridle paths crossing the retained land and contained covenants by the plaintiff to provide riding and training facilities and to control equestrian activity, having regard to other uses of Bretons. At all material times thereafter the demised premises were used as a riding school and as livery stables, the former being operated as a separate business by two directors of the plaintiff company.
By proceedings commenced in 1988, but reconstituted in July 1997, the plaintiff complained that the council had permitted or suffered on the retained land a variety of activities which had damaged its livery business, interfered with its use of the bridle paths and caused occasional injury to horses owned by the plaintiff or in its care. Those activities included: the holding of noisy parties at the Tudor Barn; the use of another building as a disco and for brass band practice; the intensification of authorised and unauthorised football use leading to obstruction of the bridle paths by spectators and others; the taking off and landing of model aircraft near the bridle paths; the holding of motor rallies near the paths and allowing the same to be used by anglers driving to the lake; and use of the retained land by trespassers for exercising loose horses and for kite flying. The plaintiff sought damages and injunctive relief.
Held Damages totalling £52,000 were awarded in respect of some of the complaints. Injunctive relief was refused.
1. Since the demise was made for a particular purpose, the non-derogation principle obliged the council not to use the retained land in such a way as to render the demised land materially less fit for that purpose: see Browne v Flower [1911] 1 Ch 219; and Molton Builders Ltd v Westminster City Council (1975) 30 P&CR 182. That obligation might, in certain circumstances, be broken by a failure to control trespassers: see Chartered Trust plc v Davies [1997] 2 EGLR 83. However, whether a landlord was in breach depended, inter alia, on the circumstances in which the lease was executed; consequently no action lay where the use complained of was clearly contemplated by the parties at that time: see Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476.
2. It was otherwise if the permitted activity was carried out in an unreasonable way, not contemplated by the parties: see Pwllbach Colliery Co Ltd v Woodman [1915] AC 634. On the evidence before the court, the council had failed in various instances (notably as regards the playing of football and the holding of noisy parties) to keep the activities on their land within reasonable limits.
3. Injunctive relief was inappropriate as the question of future breaches would in each case would be one of degree.
Timothy Sisley (instructed by Bruce McMillan & Co, of Tunbridge Wells) appeared for the plaintiff; Stephen Bickford-Smith and Graeme Keen (instructed by the solicitor to Havering London Borough Council) appeared for the defendants.
