Property law reports

Lease: Termination

Termination of lease - validity of notice - appellant purporting to terminate lease by notice that referred both to notice period and termination date - judge holding notice invalid as two termination dates possible - whether ambiguity in notice - whether rule in Lester v Garland applying - appeal allowed

Trafford Metropolitan Borough Council v Total Fitness UK Ltd: CA (Lords Justice Mummery and Jonathan Parker): 18 October 2002

The respondent council held a six-year lease of land at Altrincham, Cheshire, which it used as a car park.

The appellant landlord was entitled, in certain circumstances, to determine the lease by giving a minimum of two weeks' notice.

On 24 September 2001, the appellant served a notice to quit on the respondent.

The notice was expressed to give 'two weeks notice', and also stated, 'for the avoidance of doubt', that the car park was to close on 8 October 2001.

The respondent disputed the validity of that notice, and, on 8 October, the appellant served another, in similar terms, save that it gave '17 days' notice' and set out the date for closure as midnight on 24 October 2001.

The respondent brought proceedings to challenge the validity of the two notices.

A third was subsequently served, the validity of which was not disputed, but the validity of the first two remained relevant in relation, among other things, to the issue of costs.

The judge gave summary judgment in favour of the respondent after finding that the notices were ambiguous, in that they gave two different termination dates.

He reached that conclusion on the assumption that, applying the rule in Lester v Garland (1808) 15 Ves Jun 248, the notice period specified in each notice ran from the day after the notice was served, in which case the notice period expired the day after that set out 'for the avoidance of doubt'.

The appellant appealed in relation to the second notice only.

It contended that the reasonable recipient of the notice would have understood the termination date to be midnight on 24 October 2001.

The respondent submitted that the reasonable recipient was to be taken to know the relevant rule, in which case he would have been unsure which of the two dates was the correct one.

Paul Chaisty QC (instructed by Wacks Caller, Manchester) for the appellant; Edward Cole (instructed by Nabarro Nathanson, Sheffield) for the respondent.

Held: The appeal was allowed.

The sole issue in the case was as to the true meaning of the notice, and that was the meaning that a reasonable recipient would understand it to hold: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57 applied; Speedwell Estates Ltd v Dalziel [2001] EWCA Civ 1277; [2002] 02 EG 104 and Burman v Mount Cook Land Ltd [2001] EWCA Civ 1712; [2002] 1 EGLR 61, dealing with whether notices complied with a relevant statute, distinguished.

Since the appellant had given 17 days' notice, which was more notice than was required, it had been free to stipulate that the day the notice was given should be included in the notice period.

By setting out the exact date for closure of the car park, it had achieved its express purpose of removing all doubt that that was what it intended, and it would have been clear to a reasonable recipient that the lease was to expire at midnight on 24 October 2001.

The rule in Leicester v Garland did not apply in such circumstances, although it would have done had the minimum notice period been given, or had the notice made an unqualified reference to 17 days' notice: Dodds v Walker [1981] 1 WLR 1027 distinguished.

Town and country planning: Permitted development

Permitted development - curtilage - claimant building shed behind his bungalow - council issuing enforcement notice - whether shed within curtilage of bungalow - class E of part I of schedule 2 to Town and Country Planning (General Permitted Development) Order 1995 - appeal dismissed

Crockett v Secretary of State for Transport, Local Government and the Regions and another: QBD: Administrative Court (Mr Justice Maurice Kay): 24 October 2002

The claimant built a shed to the rear of his bungalow without obtaining planning permission.

The second defendants, Slough Borough Council, issued an enforcement notice, and the claimant appealed to the first defendant secretary of state.

He argued that there had been no breach of planning control, since the bungalow was permitted development under class E of part I of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, which covered buildings within the curtilage of a dwelling-house required for a purpose incidental to the enjoyment of it.

The inspector held an inquiry and conducted a site visit.

He concluded that the shed was on a different plot from the bungalow, despite the presence of a narrow passageway between them, and that it did not lie within the curtilage of the bungalow.

He accordingly dismissed the appeal.

The claimant appealed under section 289 of the Town and Country Planning Act 1990.

He contended, among other things, that: the inspector's decision was totally wrong in substance; and the council had failed to produce before the inspector documents shown to it by the claimant that would have provided evidence that the shed was within the curtilage of the bungalow.

In relation to the latter point, the claimant submitted that the council had been under a duty of disclosure comparable to that of the prosecution in a criminal case.

The claimant appeared in person; Robert Palmer (instructed by the Treasury Solicitor) for the first defendant; the second defendants did not appear and were not represented.

Held: The appeal was dismissed.

The question of whether the shed was within the curtilage of the bungalow was a question of fact and degree, and was for the inspector to decide on the basis of the evidence before him, amplified by his site visit.

He had correctly understood the relevant law and applied it to the facts, and there was no doubt his decision was a permissible one in the light of the material before him: Dyer v Dorset County Council [1988] 3 WLR 213, Methuen-Campbell v Walters [1978] 2 EGLR 58 and McAlpine v Secretary of State for the Environment [1995] 1 PLR 16 applied.

The council's duty at the inquiry was not comparable with the prosecution's duty of disclosure in a criminal case.

The latter duty determined what evidence had to be disclosed, not to the court, but to the defence.

Moreover, both areas were subject to statutory control, and the relevant statutory content was utterly different.

In any event, the documents that the claimant believed should have been put before the inspector had been in his own possession, and he could have presented them himself.