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Cite as: [2004] IEHC 389
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[2004] IEHC 389
1999 No. 2103 P
BETWEEN/
PLAINTIFFS
DEFENDANTS
Judgment of Miss Justice Laffoy delivered on the 15th day of December, 2004.
The plaintiffs' claim
The plaintiffs hold three units, two retail units and a storage unit, in Corbettcourt Shopping Mall in Galway as lessees from the first defendant. In broad terms, they claim that rights in the nature of easements to bring in deliveries of stock and material for their retail units through a car park and into a loading area which formerly existed have been wrongfully destroyed by development of the car park and the loading area. At the time the plaintiffs' leases were created the first defendant was the owner of the car park and loading area. Subsequently, the first defendant sold the area which has been developed to the second defendant which carried out the development.
It is agreed between the parties that the court should determine the issue of liability first and leave over the question of quantification of any damages to which the plaintiffs are entitled.
Geography
One of the most difficult aspects of this case has been understanding the geography of the plaintiffs' units and their environs.
Corbettcourt Shopping Mall fronts onto Williamsgate Street in Galway. During the last century the Corbett family carried on a retail business in the premises at Williamsgate Street. On 16th August, 1970 these premises were burned to the ground. The first defendant applied for planning permission to reconstruct the retail premises. Galway Corporation granted permission on 19th September, 1972 (Register Reference No. 65/72) subject to three conditions. Condition 3 provided as follows:
"The car parking facility and the goods loading and unloading bays to be provided in the Castle Barracks Yard shall have capacities at least equal to those of the respective former similar facilities in the same area and they shall be operative and available for use simultaneously with the opening for use of the proposed development."
The car park referred to in condition 3 was not directly behind the retail premises. It was to the rear of premises fronting on to Williamsgate Street to the west of the premises of the first defendant. In the past it could be accessed via Castle Street and Barrack Lane from William Street to the north or, alternatively, from Whitehall on the south.
In the mid to late 1980s a large shopping complex was developed to the south of the premises of the first defendant with frontage on to Eyre Square and Merchants Road. This shopping centre came to be known as the Eyre Square Shopping Centre.
Around the same time, the first defendant decided to create a shopping mall in its premises at Williamsgate Street by sub-dividing the premises into retail units. Since its reconstruction following the fire the first defendant had been using these premises as a department store. In April, 1986 the first defendant, through its architectural advisor, sought confirmation from the planning authority, Galway Corporation, that its proposal would be an exempt development. By letter dated 23rd April, 1986 it was confirmed by Galway Corporation that the proposed sub-division into small retail shop units of the retail shopping area the subject of the planning permission dated 19th September, 1972 would constitute an exempt development. The letter seeking confirmation had enclosed a layout plan showing the building in relation to the car parking area and had indicated that there were approximately 100 car parking spaces in the car parking area at that juncture.
Part of the Eyre Square Shopping Centre was contiguous with the rear of the first defendant's shopping mall. In 1991, as part of an arrangement with the owners of the Eyre Square Shopping Centre, the first defendant acquired title to the premises which became Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall and also a right of way over the common areas within the Eyre Square Shopping Centre.
The position on the ground in 1991, when the plaintiffs first took a lease in Corbettcourt Shopping Mall, was as follows:
(a) Unit No. 11, which formerly had been part of Eyre Square Shopping Centre, was on the ground floor level (level 2) of Corbettcourt Shopping Mall.
(b) Unit No. 12, which had formerly been part of Eyre Square Shopping Centre, was located at lower ground floor or basement level (level 1) in Corbettcourt Shopping Mall. Unit No. 12 was directly under and was a mirror image of Unit No. 11.
(c) To the west of the building which contained Unit No. 11 and Unit No. 12 there was a multi-storey concrete building, which for the sake of clarity I will refer to as the concrete building, which had been built in 1974 as the last phase of the reconstruction following the fire. The basement or lower ground floor area of that building was incorporated in Corbettcourt Shopping Mall at level 1. There was also incorporated in Corbettcourt Shopping Mall at level 2 an internal access or passage which connected Corbettcourt Shopping Centre with double steel doors which opened to the loading area located on the northernmost part of the car park. I will refer to these doors as the car park delivery doors. Level 1 was a few feet higher than the exterior ground level on the car park side, so that the car park delivery doors were above exterior ground level to the same extent. However, on the external wall of the concrete building just to the north of the car park delivery doors there were two hatch doors, which I will refer to as the hatch doors, which were at ground level on the car park side and opened into level 1 of the concrete building below the ceiling at that level.
(d) The car park, other than the loading area, was laid out in car park spaces. However, there were existing buildings within the area of the car park, one of them being Corbett House, a modern building which contained four units which had shop fronts both to Barrack Lane and also to the car park.
(e) There was also access from the car park into Corbettcourt Shopping Mall via a ramp which led to double doors, which I will refer to as the ramp doors.
By the mid 1990s, a number of changes had taken place on the ground. A barrier was erected across the entrance to the loading area. There were two notices affixed to the barrier, one which indicated that it was a loading area and strictly prohibited parking day or night. The other indicated that any car obstructing access to the loading bay would be wheel-clamped. Within the concrete building at level 1 a storage unit, Unit No. F, had been created and leased to the plaintiffs. Subsequent to the creation of the lease a chute had been constructed inside the hatch doors so that goods could be delivered to level 1 via the hatch doors and down the chute. Previously, when the concrete building was used for storage by the first defendant, there had been an opening at each floor level, which created what might be called a sideless shaft through which a cage and pulley block mechanism transported goods to each level of the building. However, this was in disuse by 1991 and the opening in the floor at ground floor level had been fenced for safety reasons. The chute was installed by the first defendant at the behest of the plaintiffs. On the evidence, it is clear that the chute presented a more convenient and effective delivery point for Unit No. F than the car park delivery doors. However, this is not of particular significance in the resolution of the issues which arise in these proceedings. The important point is that when the plaintiffs acquired the leases of Unit No. 12 and Unit No. F an opening into the concrete building directly off the loading area was available to them.
Throughout the 1990s the car parking areas of the car park were the subject of successive periodic licences to an individual who operated the car park.
By an agreement dated 19th April, 1996 the first defendant agreed to sell the car parking area and adjoining property to the second defendant. The sale included Corbett House. Counsel for the plaintiffs referred to two provisions of the special conditions in the agreement. Condition 5.1 provided that the sale was subject to the vehicular and pedestrian rights of way to be reserved in favour of the vendor, its successors, assignees, lessees, licensees and agents as set out on a map annexed to the contract. The map in question depicted a vehicular access from Barrack Lane going around Corbett House to the boundary with the property being retained by the first defendant. Condition 7 provided that the rights of way, both vehicular and pedestrian, presumably meaning the rights of way to which the sale was subject, might by agreement be surrendered and replaced by similar rights as outlined on another map if and when Corbett House had been demolished and a new substituted right of way was completed to the satisfaction of the first defendant. The line of the substitute vehicular access was shown on another map. Corbett House has been demolished. The evidence of the Chief Executive Officer of the first defendant, Joseph Corbett, was that arising out of the planning permission which the second defendant obtained in 1998, which is referred to later, the second defendant re-negotiated the access rights for Corbettcourt Shopping Mall. Therefore, the agreement of 19th April, 1996 on its own obviously does not tell the whole story. Apart from the re-negotiation, the map on the agreement suggests that the loading area was being retained by the first defendant, which appears to be at variance with what actually happened. In any event, I am of the view that, while conditions s. 5.1 and 7 of the agreement are consistent with the stance adopted by the defendants that the first defendant was free to dispose of the property sold to the second defendant untrammelled by any existing rights of the plaintiffs and other lessees in Corbettcourt Shopping Mall, they do not assist in the resolution of the issues which arise in this case.
The second defendant applied for planning permission to develop the property it purchased from the first defendant. Planning permission was granted by An Bord Pleanála on appeal on 1st September, 1998. The plaintiffs who had objected to the application and who were appellants on the appeal, on the ground, inter alia, that the development would interfere with their access to their units in Corbettcourt Shopping Mall for delivering goods, withdrew their appeal on payment of a sum of money, but without prejudice to their contention that their property rights were being interfered with. As regards the areas in dispute in these proceedings, the 1998 planning permission clearly superseded the 1972 permission. In any event, Unit No. 11 and Unit No. 12 were not developed under the 1972 planning permission or as an exempted development.
Edward Square Shopping Centre, which was constructed pursuant to the 1998 planning permission, now stands on the land purchased by the second defendant from the first defendant. As a consequence, there is no access from Whitehall to Unit No. 11 and Unit No. 12 in Corbettcourt Shopping Mall or to the concrete building. The car park delivery doors have been blocked up, as have the hatch doors, leaving the chute defunct. The ramp is gone, the ground having been raised, and there is a porch-type entrance to Corbettcourt Shopping Mall at the location of the ramp doors, which I will refer to as the porch entrance. Deliveries to Corbettcourt Shopping Mall must now come through –
(i) the main entrance at Williamsgate Street,
(ii) Ballalley Lane,
(iii) the Eyre Square Shopping Centre loading bay, or
(iv) Castle Street and Barrack Lane and along a passage between 3.9m and 4m wide within the new development, which Mr. Corbett testified is in private ownership, past a coffee shop which is allowed to have tables, chairs and planters on the passage to the porch entrance.
Routes (i), (ii) and (iii) were in existence before the development of the Edward Square Shopping Centre. Route (iv) is a new route created during the development.
William Street and Shop Street were pedestrianised in 1998, with the effect that Castle Street and Barrack Lane are accessible by vehicles only before 11.30 am. The defendants placed some reliance on this. In my view, it is a neutral factor in the resolution of the issues which arise in this case.
The plaintiffs' leases
The three leases in issue in these proceedings were made between the first defendant, as lessor, and the plaintiffs, as lessee. The earliest was dated 21st October, 1991 and two were dated 30th September, 1992. The premises demised were described as follows therein:
(1) In the case of the lease of 21st October, 1991, Unit No. 11, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. That map depicted only level 2. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, Unit No. 11 outlined in red and the internal common areas at that level coloured blue. The area coloured blue extended to the car park delivery doors.
(2) In the case of the first lease dated 30th September, 1992, Unit No. 12 on level 1, as more particularly delineated and outlined in red on the map endorsed on that lease, was demised. In fact, there were two maps on that lease. One depicted level 1. It showed the entirety of Corbettcourt Shopping Mall at that level outlined in green, unit No. 12 outlined in red and internal common areas within Corbettcourt Shopping Mall at that level coloured blue. The second map depicted level 2, the entirety of Corbettcourt Shopping Mall at that level (including the entirety of the concrete building at that level) outlined in green and the internal access or passage leading from the car park delivery doors to the internal common areas coloured blue. When this map is compared with the map on the lease of 21st October, 1991, it becomes obvious that it does not show the layout at level 2 within the concrete building as it was in 1992. The reason for this disparity is obvious. The map on the lease of 21st October, 1991 is a later revision which, on the evidence, reflects the position on the ground. It is reasonable to infer that it was the later revision which should have been annexed to the lease of Unit No. 12.
(3) In the case of the second lease dated 30th September, 1992, Unit No. F at level 1, as more particularly delineated and outlined in red on the map endorsed thereon, was demised. There was one map on this lease which depicted the entirety of Corbettcourt Shopping Mall at level 1 outlined in green, unit F outlined in red and the internal common areas at that level coloured blue. It also showed an access or passage connecting the internal common areas to unit F coloured blue. The hatch doors were not shown and the area inside the hatch doors was not depicted as a common area.
In the case of each lease the relevant premises were demised "together with a Right of Way for the Lessee, its customers, licensees and invitees" over the "Common Parts" as defined, with an express proviso that the lessee was subject to the thereinafter mentioned conditions.
Each of the three leases created a term of 35 years and reserved a market rent and was in the standard form used for lettings in Corbettcourt Shopping Mall. The elements of the lease which were the subject of debate in these proceedings are as follows:
• The definition of the expression "the Lessor" as including, where the context so admits, "the reversioner for the time being immediately expectant upon the term hereby created".
• The definition of "Corbettcourt Shopping Mall" which is defined as follows:
"… part of the premises situate and now known as Nos. 8 and 9, Williamsgate Street in the Parish of Saint Nicholas and in the City of Galway and more particularly the basement, ground floor and first floor and second floor thereof together with a portion of the Goods Service Building at rear as delineated on the Maps annexed hereto and thereon outlined with a this green line."
On the evidence I am satisfied that the Goods Service Building was and is the part of the concrete building at levels 2 and 1 depicted on the maps on the leases as being within Corbettcourt Shopping Centre.
• The definition of the expression "the Common Parts" as –
"… the entrance doors, halls, staircases, areas, walkaways delineated on the aforementioned Map and thereon coloured blue."
• Certain rights which were reserved by the lessor, which were introduced by the words "reserving unto the lessor", namely:
(a) reservation 3 which is in the following terms:
"The right at any time to build on, alter, add to, extend or redevelop any other part of Corbettcourt Shopping Mall or adjoining or nearby premises notwithstanding any interference with the access of light or air to the demised premises and the right to vary or permit the variation of the present or any future scheme, layout or use of Corbettcourt Shopping Mall and the lessee shall not be entitled to any compensation whatever in respect of such variation."
(b) Reservation 6 which reserves unto the lessor –
"The right to control, regulate and limit the traffic (vehicular and otherwise) into, from and within the Corbettcourt Shopping Mall and in particular to regulate the delivery and storage of stocks and goods."
• Covenant 34 of the lessee's covenants in which the lessee covenants –
"Not to load or unload any goods or materials from vans or other vehicles or convey the same from or into the demised premises except over and by the Goods Inwards Access situated at the rear of the Corbettcourt Shopping Mall."
On the evidence I am satisfied that the Goods Inwards Access was the car park delivery doors and the access to it within the concrete building.
The lease of Unit No. F restricted its use to use "as a store for the goods supplied in the plaintiffs' shops in other parts of Corbettcourt Shopping Mall". There was a provision in the lease of Unit No. F, which was not in the other two leases, in the following terms:
"The Lessor shall determine at all times the hours allowed for the delivery and movement of goods, merchandise or other articles to or from the demised premises through the entrance doors, staircases, walkways lifts or other circulation areas forming part of the 'common parts'".
The plaintiffs trade in the retail units under the name "Options". They sell giftware, mainly small items, in Unit No. 11. They sell heavier and bulkier items, kitchenware and tableware, in Unit No. 12. Bulk purchase of the merchandise retailed in Unit No. 12 was part of the plaintiffs' business plan from the outset and was the motivation for taking a lease of Unit No. F.
Closure of the car park
By letter 17th November, 1997 the first defendant advised the plaintiff that the carpark was scheduled to close that week and intermittently thereafter until it closed permanently to allow for the development of the area. The plaintiffs were informed that when the area was closed there would be no access to the chute they were then currently using for incoming stock and they would be required to use the Eyre Square Centre loading bay or Ballalley Lane for the intake of stock. On the evidence it would appear that because the pre-Christmas trading period was approaching, the closure was deferred.
Nonetheless, the plaintiffs through their solicitors by letter dated 21st November, 1997 objected to the proposal to close the yard contending that the first defendant could not unilaterally change the terms of the lease, and, in particular, they relied on clause 34 suggesting that the Goods Inwards Access mentioned in that provision was the chute facility. The unsatisfactory nature of the alternative accesses suggested was pointed out. The solicitors' letter was not replied to until 4th February, 1998 when the first defendant's then solicitors wrote to the plaintiffs' solicitors. In that letter, it was stated that the Goods Inwards Access referred to in the leases was the car park delivery doors at Level 2 which comprised "part of the demise of your client's retail premises". It was pointed out that it did not refer to the area surrounding the chute which leads to unit No. F. Notice was given that the first defendant would be closing the car delivery access doors as and from 8th February, 1998 and that future access to the rear of Level 2 would be via the ramp doors only. It was also intimated that there would be temporary interference with this access while development was taking place. Once again, it was suggested that there was suitable alternative access available through the loading bay at the Eyre Square Shopping Centre, through Ballalley Lane and also through the main entrance of Corbettcourt Shopping Mall. In relation to the chute, it was asserted that the plaintiffs only had a revocable licence to use it and that the area surrounding it was not part of the common areas. The plaintiffs were given notice that the licence to use the chute was being revoked from 8th February, 1998.
On the following day, 5th February, 1998 the first defendant notified the plaintiffs by letter that the car park would be closed from 9th February, 1998 and there would be no access to it. From that date the waste compactor would be located in Ballalley Lane and all stock deliveries would have to be received either through the Eyre Square Shopping Centre loading bay or the entrance of Corbettcourt Shopping Mall or through Ballalley Lane.
Although the planning permission for the development of the carpark area did not issue until 1st September, 1998, the closure of the carpark area took effect on 9th February, 1998 to facilitate the archaeological resolution of the development site. Thereupon all access to the car delivery doors and the hatch doors terminated permanently. In the case of the ramp doors, access terminated and was only resumed around September, 2003 via Barrack Lane, Castle Street, the passage within Edward Square Shopping Centre past the coffee shop and through the porch entrance.
The Issues
The issues which arise in determining the liability of the defendants are:
(1) What rights did the plaintiffs acquire, as lessees, over the car park and the loading area and through the car park loading doors and the hatch doors?
(2) Have the plaintiffs' rights been interfered in such a manner as to give rise to a cause of action on the part of the plaintiffs?
These issues fall to be determined in accordance with the proper construction of the terms of the leases and the application of well established legal principles.
The plaintiffs' rights
In each of the leases the lessees were given the express right to use the car park delivery doors and the internal common parts for receiving deliveries of stock and materials. Indeed, the plaintiffs were effectively mandated by covenant 34 to receive deliveries by this route and no other. Further, it is clear on the evidence that it was the common intention of the parties that the car park delivery doors would be accessed over the car park and loading area from the public roads at Castle Street/Barrack Lane or Whitehall and that loading and unloading would take place in the loading area. Therefore, the plaintiffs acquired rights by implication to give effect to that common intention. Absent such implied rights, the express right granted in each lease would be ineffective. The defendants conceded as much - properly, in my view. The express and implied rights were easements.
The agreement under which the plaintiffs used the hatch doors and the chute for receiving deliveries was a separate agreement, which post-dated the grant of the leases. In my view, the nature of the agreement was correctly characterised in the letter dated 4th February, 1998 as a revocable licence. The first defendant was entitled to revoke the licence on reasonable notice. In reality, the plaintiffs got no notice.
The case made on behalf of the defendants was that, in reliance on reservations 3 and 6, the first defendant, as lessor, was entitled as of right to deprive the plaintiffs of use of the car park delivery doors, the hatch doors, the loading area and access through the car park.
The principles applicable to the construction of grants and reservations of easements are stated as follows in Wiley on Irish Land Law, 3rd ed. at para. 6.058:
"The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the relevant conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that, in cases of doubt, (e.g. over the exact scope of the easement or profit), a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor."
In my view neither reservation 3 nor reservation 6 is the reservation of an easement which is to be treated as a re-grant in the sense envisaged in the foregoing passage. Rather, they are provisions which are designed to ensure that the lessor is free to deal with property adjacent to the demised premises to the extent expressly provided. In any event, I am of the view that there is no ambiguity in, or doubt about, the scope of those provisions.
Wiley deals with the second principle in para. 6.059 in the following terms:
"As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor's land."
The effect of clauses permitting development is specifically considered in Gale on Easements, 16th ed., at p. 472 in the following passage:-
"It is quite common, particularly in leases, to find the grant of an easement qualified by a reservation of a right to develop or alter the servient tenement in such manner as the servient owner shall think fit, notwithstanding that the access of light or air to the dominant tenement and (sometimes) any other easement appurtenant to the dominant tenement may be obstructed or interfered with. The effect of such a provision is a matter of construction in each case but the court will lean against a construction which would entitle the servient owner to deprive the dominant tenement of all access of light and air or the whole benefit of any other easement such as a right of access. Such a provision may however, permit acts which would otherwise amount to an unjustified obstruction to or interference with an easement and would otherwise be an actionable nuisance but not acts which would for practical purposes destroy the easement. In that case the servient owner can obstruct or interfere with a dominant owner's rights, provided the dominant owner is left with reasonable enjoyment of them, though not necessarily in so convenient a manner or to such an extent as at the date of grant. So, where leases of flats contained a grant of rights of access over the forecourt but also such a provision as is under discussion, and the landlord wished to delineate parking spaces on the forecourt with lockable posts and grant exclusive licences of the spaces, it was held that he was entitled to do so, despite the fact that the scheme proposed would substantially interfere with the rights of access granted by the leases and otherwise amount to an actionable nuisance.
As a matter of construction, in my view, reservation 3 contains two separate and distinct provisions for the benefit of the lessor. The first gives the lessor the right to develop property adjoining the demised premises notwithstanding that such development would otherwise constitute an actionable nuisance because of interference with the access of light or air to the demised premises. The first limb of reservation 3 does not, either expressly or by implication, provide that the lessor is free to develop adjoining property in a manner which would interfere with the express and implied rights to receive and make deliveries through the car park delivery doors and access via the car park and loading area which were demised to the plaintiffs as lessees. The freedom which the second limb of reservation 3 reserved to the lessor must be construed, applying the principle of non-derogation from grant, as permitting the lessor only to vary the scheme, layout and use of Corbettcourt Shopping Mall other than the premises demised to the plaintiffs in a manner which would not deprive the plaintiffs of the reasonable enjoyment of the easements and rights acquired by them under the leases.
In relation to reservation 6, counsel for the plaintiffs submitted that, as a matter of construction, regulation of delivery of stock and goods does not encompass the prevention of such delivery and, in this connection, he referred to Stroud's Judicial Dictionary of Words and Phrases, 6th ed. at vol. 3, at p. 2239. In my view, applying the principle of non-derogation from grant, reservation 6 does not entitle the lessor to effectively confiscate the express and implied rights to receive and make deliveries and of access which the plaintiffs acquired under the leases.
Accordingly, the provisions of the leases and, in particular, the provisions of reservations 3 and 6, did not entitle the first defendant to block up the car park delivery doors and to prevent the plaintiffs receiving and making deliveries through those doors from the loading area and to traverse the car parking areas from either Barrack Lane/Castle Street or Whitehall to access those doors.
Interference so as to give rise to a cause of action?
As is pointed out in Bland on The Law of Easements and Profits ŕ Prendre at p.56, to constitute a disturbance with an easement of way there must be a real substantial interference with it.
In this case, the factual position is that there has been a total obstruction of the plaintiffs' use of the car park delivery doors since February 1998 and this obstruction is permanent. Between February, 1998 and September, 2003 there was no access at all over the car parking area to any part of the rear of Corbettcourt Shopping Mall. Since September, 2003 there is a limited access from Barrack Lane via the passage which was formerly part of the car parking area, past the coffee shop through the porch entrance. I accept the evidence of the first plaintiff that this route is totally unsuitable and impractical for effecting deliveries to and from the plaintiffs' retail units and that it is not used by them. Indeed, Mr. Corbett's evidence was that this route is not used frequently and that deliveries are either brought in through the main entrance at Williamsgate Street or via Ballalley Lane. On the evidence I find that there has been a real and substantial interference with the express and implied rights acquired by the plaintiffs under the leases. It is no answer for the defendants to say that the other routes (the main entrance at Williamsgate Street, Ballalley Lane and the Eyre Square Shopping Centre loading bay) are still available to the plaintiffs. The plaintiffs have been deprived, not only of the most convenient route, but of the only suitable route for efficient bulk deliveries of the merchandise retailed in Unit No. 12 in contravention of their rights.
Conclusion
Accordingly, I conclude that the plaintiffs have established liability on the part of the defendants.
Approved: Laffoy J.