Did You See…? Recent property cases you may have missed.

01 Dec 2009

Gregory Projects (Halifax) Ltd v (1) Tenpin (Halifax) Ltd (2) Tenpin Ltd [2009] EWHC 2639 (Ch)
Landlord and Tenant – Agreements for lease

The claimant developer (C) sought a declaration as to whether the defendant company (D) was entitled to terminate their agreement for lease. The parties entered into the agreement for lease which was conditional on the satisfaction of certain conditions including a planning condition. C acquired the site and was granted planning permission subject to conditions. Under the agreement, C was to forward to D a copy of any relevant decision on the planning application and they each had 10 working days thereafter in which to give written notice to the other of whether the planning conditions were acceptable. C informed D by letter that permission had been granted with no onerous conditions but only sent D a copy of the written decision after the end of the 10 days. In the meantime, D served notice claiming to rescind the agreement. C submitted that if planning permission with the required characteristics had been granted before the end date the planning condition had been satisfied and D could not rescind.

HELD: The planning condition was satisfied on the “obtaining” of planning permission of a particular kind. Planning permission was obtained for that purpose when it was granted. D had known that planning permission had been granted and could have called upon C to send it a copy of the decision notice under the agreement but it did not do so.

Laura Tweedy

Anthony Stephen Davies v Richard Dennis & Ors [2009] EWCA Civ 1081
Real Property – covenants –nuisance

The appellant (A) appealed against a decision that a restrictive covenant to which he was subject applied to building works that he proposed to carry out. The covenant contained the following stipulation “…nor to do or suffer to be done on the Plot… anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood”. A obtained planning permission to build a three-storey extension to his house and the question was whether this was in breach of the covenant.

HELD: Appeal dismissed. The covenant was clearly wide enough to be capable of extending to activities of all natures, including building an extension to an existing house which, when built, would be such an “annoyance”, Wood v Cooper (1894) 3 Ch 671 Ch D applied.

Laura Tweedy

Bee v Thompson [2009] EWCA Civ 1212
Easement – Development of servient land – whether it would lead to excessive use of the way

D’s land, previously used for agricultural purposes, had the benefit of a right of way across A’s land. The right was granted “at all times and for all purposes connected with the said [land]”. D obtained permission to develop it to hold 3 houses. At first instance the judge held that the way could only be used for agricultural purposes and gave an injunction restraining D from using it for access to the proposed houses. D appealed.

The Court of Appeal held: (i) the phrase “at all times and for all purposes connected with the said [land]” should be taken to have its plain meaning unless there were compelling reasons to cut it down. Replacing “all purposes” with “agricultural purposes” was therefore not justified. (ii) The judge had indicated, however, that the development of the land would result in an excessive user of the way. That finding was justified and D was therefore prohibited from using the way for access to and from the three new residences.

Phil Fellows

New v Gromore Ltd and others [2009] All ER (D) 81 (Nov)
Trespass – C rented lock up from Ds 1 & 2 – D3 bought and demolished – Whether Ds 1 & 2 liable to C for giving permission – Whether D3 liable for trespass

C was an artist renting a studio lock up from Ds 1 and 2. The freehold was sold to D3 who obtained planning permission to demolish the lock up and build upon the land. D3 went ahead, destroying C’s studio and equipment. C sued D3 for trespass and Ds 1 and 2 for consenting to it.

D3 was liable for trespass for demolishing the lock up and for trespass to, and wrongful interference with, C’s goods for clearing his equipment from the site. Ds 1 and 2 were not liable
to C because they did not authorise D3 to demolish the lockup and clear C’s goods from the site.

Phil Fellows

Trustees Ltd v Papakyriacou [2009] EWCA Civ 1089
Easement – Right to use loading bay – Right limited to certain periods – Whether Ds or their tenants used the bay outside the prescribed periods

Ds owned land next to C’s and enjoyed the benefit of an easement over C’s land entitling them to use it as a loading bay. On 29 January 2008 C wrote to Ds informing them of the time restrictions. They suggested that Ds had the since flouted those restrictions. The judge held that neither Ds nor their tenants used the loading bay outside the prescribed times and refused an injunction.

The Court of Appeal held that: (i) the judge had been entitled to find that Ds had not used the loading bay outside the prescribed times and would not do so in the future. (ii) The judge was wrong to hold that the tenants had not used the loading bay outside the prescribed period since he had disregarded evidence from Ds that the tenants had continued to do so. (iii) Ds should have limited the tenants’ use of the bay to the prescribed periods and should have been ordered to inform them of the time limits and limit their permission to use the bay accordingly. The grant of an injunction was no longer appropriate, however.

Phil Fellows

Stadium Capital holdings (no2) Ltd v St Marylebone Property Company Plc and anr [2009] All ER (D) 166 (Oct)
Trespass: Advertising hoarding occupying air space above neighbour’s land. Damages

With the permission of the then freeholder, an advertising hoarding had been erected by a leaseholder on a boundary wall between two parcels of land, which were in common ownership. Some time thereafter the lands changed ownership and the freeholder gave the defendant leaseholder notice to remove the hoarding and its service platform, on the basis that they encroached on its airspace. C subsequently bought the freehold and claimed damages in trespass.

HELD: The D’s defence of adverse possession failed as the use of the air space had been by consent previously. Damages were awarded from the date of expiry of the notice to remove the hoarding to the date it was removed and calculated by reference to the revenue which licences of the advertising space had generated for the D.

Andy Creer

New v Gromore Ltd and ors [2009] All ER (D) 81 (Nov)
Trespass to land and goods. Wrongful Interference with Goods. Site clearance for development.

The C had rented a lock-up garage from D1 and D2 for storage. D1 and D2 obtained planning permission for the site on which the garage stood. They agreed to sell the land to D3, who proceeded to clear the site and demolished the garage.  D3 alleged such actions had been with the authority of D1 and D2.

HELD: The judge found that D1 and D2 had not authorised D3’s actions. Accordingly, D3 alone was liable in trespass for demolishing C’s garage and, in both trespass and the wrongful interference with goods, for removing such items from the land subject to the C’s lease during the site clearance.

Andy Creer


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