England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL TRIAL CENTRE
(His Honour Judge Knight)

		The Royal Courts of Justice The Strand London WC2A Tuesday 31 July 2001

1. LADY JUSTICE HALE: This is the claimant's application for permission to appeal against an order made on 14 May 2001 by His Honour Judge Knight QC sitting at the Central London Civil Trial Centre in two consolidated actions brought against his former landlords. His claims were dismissed with costs and permission to appeal was refused.
2. By a tenancy dated 24 March 1997 Railtrack let premises known as Arch No 163, Rye Lane, Peckham Rye, Southwark to the applicant. They were let on a yearly tenancy at a rent of £2,500. The agreed use stated in the agreement was "Storage of foodstuffs". By clause 7.1, the tenant covenanted that:

"no part of the Property is to be used otherwise than for the Agreed Use".

3. Clause 21 provided that:

"Although the Company have retained rights of advertisement on the Property the Tenant may display a notice of his name and business in a form and position approved in writing by the Surveyor".

4. Clause 30 provided:

"The Tenant shall in common with the Company and persons authorised by the Company have access to and egress from the Property along the route shown by brown colour on the plan annexed hereto or such alternative route as the Company may from time to time prescribe and shall pay to the Company on demand such proportion (according to use) of the costs incurred by the Company from time to time in maintaining and cleansing the said route as may be certified by the Surveyor".

5. Clause 31 provided:

"The tenancy shall not grant nor be deemed to grant any right to park vehicles on the said access route or on any adjoining land within the Company's ownership except during such times only as the Tenant is engaged in bona fide loading or unloading of goods into or out of the Property."

6. As the address suggests, the premises were a unit let below a railway arch, in fact the last in line of five such arches on a narrow cul-de-sac off Rye Lane, Peckham Rye. The arch nearest Rye Lane is number 167 which was let to a Mr Murrell, who had for many years been allowed to position, and trade from, a mobile fruit and vegetable stall placed across the access road, though not blocking it entirely. The other arches were was let to Budget Carpets. They had a large sign on the end wall of the cul-de-sac with an arrow pointing directly to the left, more directly to the applicant's end unit than towards their middle unit.
7. The applicant's business was concerned with trading in dried fish imported from Norway where, he tells me, he had previously lived. In this application, he relies upon a letter dated 2 February 1999 from Kevin Cox, an Enforcement Officer with the local authority's Food Safety Unit. Mr Cox describes the business carried on at the premises as follows:

"A hard dried product is received in bulk, the pieces of dried food are subdivided and packed into smaller retail packs. The arch is occupied on a part time daily basis, as most of the stock is sold at a market in another borough."

8. On 11 January 1999 the landlord, then calling itself Spacia, in a letter from Tracey Page, wrote to the applicant as follows:

"It has been brought to Railtrack's attention that you are currently using your demise in breach of the user clause. I draw your attention to your Tenancy Agreement dated 24 March 1997, which clearly states the agreed use is for the storage of foodstuff. Therefore, you are prohibited from trading and selling goods from your property.

In addition I would also request that you refrain from designating the roadway outside your designated demise as your private parking, which is also contrary to the terms of your Agreement."

9. The applicant's response was, firstly, that they knew that he was trading; secondly, that he was not parking as he did not have a vehicle; and, thirdly, to complain strongly about the market stall obstructing the access to his premises. A later letter, dated 1 February 1999, threatened legal proceedings against the landlord.
10. On 17 February 1999 the landlord served a notice under section 146 of the Law of Property Act 1925. This included the following:

"(1) The said Agreement contains a provision whereby you agreed to use the Premises for the storage of foodstuffs only.

(2) This provision has been broken in that you have been using the Premises for the purpose of trading and selling dried fish."

11. The notice therefore required the applicant to remedy the breach and gave notice of the intention of the landlord to re-enter the premises if this was not done within 28 days.
12. The applicant's evidence was that Mr Beunderman for the defendant visited some time in March and indicated that the user clause would be extended. Mr Beunderman's evidence was that he visited on 31 March 1999 to try and find common ground amongst the tenants and indicated that if agreement could be reached amongst them he would consider widening the user clause. On 24 March 1999 the applicant began the first of these two actions in the Lambeth County Court. He claimed substantial damages because of the Budget Carpets sign " overwhelming his business" and the obstruction of the access to his premises. It appears that the summons in that action was received by Railtrack on 9 April.
13. On 14 April 1999 bailiffs took peaceful possession of the premises and removed the applicant's goods. The landlord thereafter served a notice under the Torts (Interference with Goods) Act 1977 about those goods. On 20 July 1999 the applicant began a second action in the Shoreditch County Court claiming unlimited damages for wrongful and forceful entry on to the premises, wrongful seizure and destruction of goods, wrongful termination of tenancy (wrongful repossession), and loss of earnings up to his retirement age. The particulars of claim stated that the use of the property stated in the tenancy agreement was incorrect. He had told the landlord of the use for trade and sale of foodstuffs and they had said that storage meant warehousing and in warehouses trade was allowed; also that the landlord knew that he was trading in 1997 and had raised no complaint until now.
14. The case was conducted before the judge on the basis that the applicant was using the premises for retail trade. That is the whole tenor of the argument in a document entitled "Witness statement", which is in my bundle. Although it is dated 13 July 2001 it must have been used in substance for the purpose of the hearing below. The applicant argued that, for various reasons, including what had he had said in his letter applying for the tenancy dated 2 December 1996, the landlord knew of and agreed to his intentions, and also that he was entitled to do this because planning permission had been granted in 1990 to use all five units for A1 retail purposes subject to certain conditions. Correspondence with planning officers during 1999 clearly reveals that is what the planning officers thought the position was for all five units; that planning permission would be required to revert to B8 warehousing or storage use; and, indeed, that the planning officers were making moves to enforce one of the conditions, which was as to access. The applicant also argued that, even if he was not so entitled, that the section 146 notice had been waived or abandoned by Mr Beunderman's indication that he was prepared to widen the use.
15. In relation to each of those arguments, the judge found, firstly that there was no agreement for retail use. Mr Gill, who had negotiated the original letting, said that he would not have let for that purpose. Mr Duddy, who had visited in 1997 and made a memorandum stating that the applicant was " now trading from the premises," meant no more than that he was in use and occupation of the premises. Nobody else said that they had seen him selling fish from the arch. The judge relied quite heavily on the discrepancy between the applicant's original particulars of claim, which had referred to warehousing, including trading and selling, and his case at the trial, which had referred to retail use; and there are certain other references in the bundle to a shop and a vehicle.
16. Secondly, the judge held that the 1990 planning permission was subject to the usual condition of commencement within five years. This had not been done so the permitted use was the original B8 warehousing use. Even if it had been for retail use, it was for the claimant as tenant to ensure that the permitted use under the tenancy was the permitted use in planning law: See Hill v Harris [1965] 2 QB 601 at 614-615.
17. Thirdly, he held that there was no abandonment of the 146 notice. He accepted the evidence of Mr Beunderman as to what had been said and he held that being prepared to negotiate is not the same as waiver : See Re National Jazz Centre [1988] 2 EGLR 57 at 58.
18. In addition to the basic point about use, which clearly was fundamental to the forfeiture, the applicant also wanted recompense for the work he had put into the premises (particularly the laying-on of electricity but other things as well) and compensation for losses suffered as a result of not having any sign board. The judge found that there was no right to recompense because it was his obligation to lay on electricity under the lease - and indeed there had been a rent holiday as result - and that the lack of a sign board was not the result of any breach of covenant towards him. He had not been prevented from putting up his own sign.
19. In this application the applicant accepts that retail use was not allowed. But he argues that the sort of use described by the Food Safety Officer was allowed. He relies on a letter from the planning officer that B8 users could be trading to retailers who might possibly pay on site. This indeed comes very close to what Mr Gill says in his witness statement that he did know about. Paragraph 7 of that witness statement says this:

"In the course of the letting, he advised me that he wanted the arch at Peckham for storage because he supplied the restaurants in the area. His trade was in Hackney with the local community. The arch was never discussed as use for retail, but storage for his trade to the restaurants and shops in the Peckham/Brixton area."

20. The applicant points out that, other than the way in which perhaps he had put the case, there was no evidence that he was retailing from the premises; that was the whole point. The landlord's evidence was that they did not see him doing so. But the combination of what Mr Gill did know when the letting was made, what the applicant said in his application and what Mr Duddy reported in his memo is, he argues, sufficient to indicate that the landlord did know the nature of the business that he says he was carrying on.
21. One can certainly understand a sense of grievance in the applicant, given the chronology as I have described it; the fact that the fruit and vegetable stall was trading in the access from one of the units; and that, presumably, Budget Carpets were also engaged in some sort of selling from their premises, otherwise they would not have required the massive sign outside. Unfortunately the applicant has been his own worst enemy in this litigation. He appears to have presented inconsistent cases; the judge considered that he had invented earlier letters of complaint about the access and the sign; and, worst of all, he withdrew from the hearing before cross-examining the other side's witnesses because he perceived that the judge was against him. He tells me today he was so afraid he would lose his temper and become angry that he thought it was the only thing to do.
22. I have experienced considerable difficulty with this application because, as the case was put before the learned judge on the basis of retail use, it could not have succeeded, because there was nothing to suggest that the defendants had known about and acquiesced in retail use of these premises. If, on the other hand, the case had been put on the basis of the sort of warehousing plus distribution to restaurants and shops in the area that it is now put upon, then there is some evidence in the bundle to support the suggestion that the landlord knew all along that that was going on. Not without considerable misgivings, I have therefore decided to adjourn this application for a hearing on notice to the other side so that the matter can be further considered. As the point is a short one, I will also order that, if permission is granted at that hearing, the appeal will follow, so as to save everybody's time and expense.
23. Mr Makweley understands that, if he loses - and he may very well lose; I am not holding out a great deal of hope to him - he will be at risk of further costs and further financial problems. But I am concerned that a litigant in person may not have presented the case as it ought to have been presented, and that, for a variety of reasons, the one point which might have succeeded was not properly emphasised before the judge.
24. So the case is adjourned for a hearing on notice to the other side, with appeal to follow if permission is granted.
ORDER: Application adjourned to a hearing on notice, with appeal to follow if permission granted. Copies of the transcript of this judgment to be sent to the parties at public expense. (Order not part of approved judgment)