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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Tandem Properties Ltd v Sheffield City Council [2024] EWHC 1926 (Ch) (13 June 2024) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2024/1926.html Cite as: [2024] EWHC 1926 (Ch) |
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BUSINESS AND PROPERTY COURTS IN LEEDS
BUSINESS LIST (ChD)
Oxford Row LEEDS LS1 3BG |
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B e f o r e :
____________________
| TANDEM PROPERTIES LIMITED | Claimant | |
| – and – | ||
| SHEFFIELD CITY COUNCIL | Defendant |
____________________
Mr Christopher Jacobs of Landmark Chambers (instructed by Gowling WLG (UK) LLP)
for the Defendant
Hearing dates: 14, 15 March 2024
____________________
Crown Copyright ©
District Judge Royle:
Background
a) The Citadel was to have been, had the development proceeded as originally planned, at one entrance (on the Eastern side) of a major new shopping area. It would, therefore, have had a 'prime position' in relation to the new development, and
b) There was a John Lewis & Partners ("JLP") department store on the Western flank of the proposed NRQ, and that the original plan was for that store to be compulsorily purchased, and demolished after JLP had relocated to become an 'anchor tenant' in the newly developed NRQ. (The store closed during the pandemic and a decision was taken that it would not re-open.)
a) First, a conditional agreement for lease ("Agreement for Lease"), between Hammerson NRQ, Hammerson UK and JLP, of the premises in the (yet to be developed) NRQ. In substance, the conditions were such as to ensure that the NRQ was actually capable of occupation by JLP, necessarily including that it had been constructed. That, however, is no substitute for the detail of the provisions in the agreement: see cl. 4.1 [564] and schedules 1—5 to the agreement, and
b) Secondly, an agreement, effectively, to transfer the existing JLP store to SCC in certain circumstances (including by exercise of an option by SCC), notably when the Agreement for Lease became unconditional. Central to Tandem's claims are clauses 19.1—19.6 at [392] by which SCC agreed not to implement the CPO against the existing JLP store save in a number of circumstances, and JLP agreed not to object to the CPO.
a) The NRQ was a unique and important project involving significant time and money, was of regional and national significance and intended to reverse a 20 year severe physical decline – being, as it was, the single largest development project to which SCC had been a contracting party;
b) It was in that context that he argues Tandem objected to the CPO and was to be compensated for going along with it;
c) Further, that context, he argued, makes it unsurprising that Tandem would have scrutinized carefully what SCC had said – for example, its correspondence and what SCC had said in terms of viability;
d) JLP had been central to the project as anchor tenant, and were a linchpin through which the balance of the NRQ scheme was intended to work, and
e) From there, he argued that Tandem could not realistically have expected the abandonment of the NRQ scheme in 2018, not least, he submitted, because what SCC had said directly to Tandem was at variance with what had been published in the press.
The claim, defence and reply
a) The Tandem Agreement, in part giving up its objection to the CPO, was induced by misrepresentations, which has caused Tandem loss. The claim is squarely put under the Misrepresentation Act 1967 ("the 1967 Act"). The relevant representations are alleged at ¶31 of the Particulars of Claim [44], which I summarise thus:
i) First, that a key feature of the NRQ scheme was the demolition of the existing JLP store and/or relocation of JLP to the new store in the NRQ;
ii) Second, that a binding agreement had been entered into which required JLP to proceed to become anchor tenant in the NRQ (i.e. that JLP's participation had been secured);
iii) Third, that there were no foreseeable obstacles to completion of the NRQ with JLP as anchor tenant and that JLP did not have the ability to "walk away" from the NRQ scheme if it wished, and
iv) Lastly that JLP had withdrawn its objection to the CPO because it was bound to proceed with the NRQ scheme as anchor tenant.
b) Under the same agreement, SCC had assumed obligations of a fiduciary nature towards Tandem in relation to the NRQ scheme which it breached in various respects including by failing properly and fairly to disclose to Tandem material information about the NRQ scheme, or modifying the scheme without consultation with, or notification of, Tandem, or having any regard to its interests;
c) SCC's conduct in relation to the NRQ scheme amounted to an infringement of Tandem's rights under Article 1 Protocol 1 ("A1P1") of the European Convention on Human Rights ("ECHR"), such that it is entitled to damages under ss.7 and 8 of the Human Rights Act 1998 ("HRA"), and/or
d) SCC's conduct in relation to the NRQ scheme constitutes a private and/or public nuisance for which Tandem is entitled to damages.
The Application
a) For SCC:
i) [111] Sean McClean, Director of Regeneration and Development since December 2022, having been employed since by SCC 2002, dated 7 September 2023. Mr McClean deals with the history of the NRQ, and the correspondence, publicly available materials, and press articles which, SCC argues, show that there is no real prospect of Tandem establishing deliberate concealment, or resisting the proposition that with reasonable diligence it could have discovered matters more than 6 years before issue;
ii) [910] John Mothersole, who had been Executive Director of Development, Environment and Leisure at SCC between January 1998 and 2008. He counters Mr Hill's evidence in the following ways:
(1) The JLP agreements were not disclosed to the 100 or so objectors to the CPO or the Inquiry, which (he says) is normal because they are commercial agreements, and that that non-disclosure was on advice of SCC's lawyers;
(2) That the JLP land was not excluded from the CPO as suggested by Mr Hill at ¶23 of his evidence. In fact the JLP land was included in the CPO but SCC had agreed with JLP not to implement the CPO, and
(3) Gives evidence which is essentially targeted at an argument that there were either no representations as alleged, or if there were then they were true. For the reasons at ¶22 I need not elaborate on the content of that part of his evidence.
b) For Tandem:
i) [253] Robert Hill, Director of Tandem, dated 21 November 2023. Mr Hill deals with the background to the NRQ and subsequent events, and explains why he disagrees with Mr McClean's analysis on limitation;
ii) [908] Nalin Seneviratne, undated. Mr Seneviratne joined SCC in 2009 as Director of Property and Facilities Management, but was not involved with the NRQ until 2013. In 2013, his role changed to Director of Capital & Major Projects, assuming responsibility for the NRQ in April that year. He narrates the termination of the Hammerson UK agreement, and gives evidence to the effect that, among other things:
(1) Until 2018 the public plans for the NRQ included JLP as anchor tenant, and that between 2013 and 2018, whilst that had been the hope there had been other options considered including the retention of JLP's existing store;
(2) In his view the agreement with JLP gave it a "degree of flexibility";
(3) None of the agreements with JLP were shared with Tandem or anyone else for confidentiality reasons;
(4) In 2017 SCC and JLP agreed that retention of the existing store was the best way forward and JLP would look at refurbishment options, and that during the same year a "new plan" was drawn up based on a much smaller retail content than originally envisaged with the public sector underwriting development costs and recovering them over 40 years.
The law
Strike out – the law
Summary judgment – the law
"(i) The burden of proof is on the applicant for summary judgment;
(ii) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman [2000] P.I.Q.R. P51;
(iii) The criterion 'real' within CPR 24.2 (a) is not one of probability, it is the absence of reality: Lord Hobhouse in Three Rivers DC v Bank of England (No.3) [2003] 2 AC 1 [158];
(iv) At the same time, a 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 [8];
(v) The court must be astute to avoid the perils of a mini-trial but is not precluded from analysing the statements made by the party resisting the application for summary judgment and weighing them against contemporaneous documents (ibid);
(vi) However disputed facts must generally be assumed in the claimant's favour: James-Bowen v Commissioner of Police for the Metropolis [2015] EWHC 1249 [3];
(vii) An application for summary judgment is not appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial of the issue having regard to all the evidence: Apovdedo NV v Collins [2008] EWHC 775 (Ch);
(viii) If there is a short point of law or construction and, the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725;
(ix) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial. The court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3;
(x) The same point applies to an extent to difficult questions of law, particularly those in developing areas, which tend to be better decided against actual rather than assumed facts: TFL Management Services v Lloyds TSB Bank [2014] 1 W.L.R. 2006 [27]."
Limitation – the law
a) Section 32 provides, so far as is material, as follows:
"Postponement of limitation period in case of fraud, concealment or mistake
(1) … where in the case of any action for which a period of limitation is prescribed by this Act, either –
(a) …
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant;
(c) …
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
…
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.";
b) The burden in all of these matters is on the claimant;
c) A "fact relevant to the cause of action" in s.32(1)(b) is one without which the cause of action is incomplete: Arcadia Group Brands Ltd v Visa Inc [2015] Bus LR 1362, cited in Canada Square Operations Ltd v Potter [2023] 3 WLR 963 at [96];
d) Facts which merely improve the prospects of the cause of action are not relevant facts for these purposes: Goldrail Travel Ltd (in liquidation) v Grumbridge [2020] EWHC 1757 (Ch);
e) Nor is a claimant entitled to delay limitation until they have certainty of success, or everything needed to succeed. All that is required is to be able to avoid striking out. Such a test is satisfied when the claimant has sufficient confidence to justify embarking on the preliminaries to the issue of a writ. A common sense application is required, rather than turning on a complex balance of the prospects of success: see Gemalto Holding BV v Infineon Technologies AG [2022] 3 WLR 1141, applied by Fancourt J in Duke of Sussex v MGN Ltd [2023] EWHC 3271 (Ch).
f) "Concealment" means to keep something secret: Canada Square at [65];
g) "Deliberate concealment" does not require the concealed fact to be one the defendant was obliged to disclose: Canada Square at [104]. All that is required is (i) a fact relevant to the cause of action; (ii) concealment of that fact from the defendant (either by positive act or withholding of relevant information) and (iii) an intention on the part of the defendant to conceal the fact or facts in question. See Canada Square at [109];
h) "Deliberate commission of a breach of duty" does not include a reckless breach, or awareness on the part of the defendant that it is exposed to a claim. All that is required is that the defendant knows he is committing a breach of duty: Canada Square at [153];
i) As to "reasonable diligence", see Lawrence v Associated Newspapers Ltd [2024] EMLR 3 at [86]:
i) The test is how a person carrying on a business of the relevant kind would act if they had adequate but not unlimited staff and resources and were motivated by "a reasonable but not excessive" sense of urgency;
ii) The question of what reasonable diligence requires may have to be asked at two stages even though there is a single statutory test: (1) whether there is anything to put the claimant on notice of a need to investigate and (2) what a reasonably diligent investigation would then reveal. These are questions of fact, determined to an objective standard informed by the circumstances (as distinct from characteristics such as naivety, lack of curiosity and so on) of the claimant. This, in my judgement, is what Males LJ was referring to when he said, in OT Computers Limited (in liquidation) v Infineon Technologies AG & Micron Europe Limited [2021] EWCA Civ 501 at [47], that the requirement of reasonable diligence applies throughout, and that the claimant must first be reasonably attentive so that he becomes aware (or is treated as becoming aware) of the things which a reasonably attentive person in his position would learn. Once there is such a "trigger" he is taken to know those things which a reasonably diligent investigation would then reveal. None of this requires a claimant to take exceptional measures which they could not reasonably be expected to take.
iii) Where there is no trigger, no obligation to investigate with reasonable diligence arises;
iv) A conclusion to the same effect as to discovery of the trigger and what happens thereafter was reached in Duke of Sussex;
The issues
Misrepresentation under the 1967 Act
a) Do the Particulars of Claim disclose a cause of action known to the law in misrepresentation under the 1967 Act?
b) If so, when did that cause of action accrue? Tandem argues that it has real prospects of showing that that did not occur until 2018 and so the claim would be in time pursuant to ss. 2 or 9 of the 1980 Act;
c) If Tandem is wrong about that, is there a prima facie case that there are no real prospects of it establishing (i) deliberate concealment of a fact needed to plead a cause of action in misrepresentation within the meaning of s.32(1)(b) of the 1980 Act and (ii) that it could not, with reasonable diligence, have discovered the fact more than six years prior to issue (i.e. by 7 October 2016)? If so, can Tandem meet the evidential burden to the contrary?
Negligent misstatement at common law
d) Assuming an amendment to rely on the misrepresentations as negligent misstatements, and given the (sensible) concession by Mr Paul that s.14B of the 1980 Act would in principle bar such a claim, does Tandem have real prospects of postponing limitation for this claim by reference to the same arguments under s.32 of the 1980 Act as are made for misrepresentation under the 1967 Act?
Article 1 Protocol 1
e) Do the Particulars of Claim set out a case which would engage Article 1 Protocol 1?
f) Does Tandem have real prospects of showing that its rights under the article have been interfered with?
g) Does Tandem have real prospects of showing that such interference was disproportionate?
h) If so, does Tandem have real prospects of showing that such a claim is within time because the Court will consider it equitable in all the circumstances to extend time under s.7(5)(b))?
Private nuisance
i) Do the Particulars of Claim disclose a cause of action in private nuisance?
j) If so, does Tandem have real prospects of establishing at trial that there has been such a nuisance?
k) If so, does Tandem have real prospects of establishing at trial that the action is not time barred by s.2 of the 1980 Act?
Public nuisance
l) Do the Particulars of Claim disclose a cause of action in public nuisance?
m) If so, does Tandem have real prospects of establishing at trial that there has been such a nuisance?
n) If so, does Tandem have real prospects of establishing at trial that the action is not time barred by s.2 of the 1980 Act?
Other reasons for trial
o) In each case, is there some other compelling reason why such a claim should nonetheless proceed to trial if the Court finds it has no real prospects of success?
Discussion
Misrepresentation under the 1967 Act
a) A cause of action under the 1967 Act accrues when loss or damage is suffered: see Green at [30];
b) Whilst claimants will often suffer loss or damage on entry into the impugned transaction, that is not necessarily so: see Cartwright: Misrepresentation, Mistake and Non-Disclosure (6th ed.) at 6—52;
c) In a "no transaction" case (such as this), the question is "whether, and if so at what point, the transaction into which the claimant entered caused his financial position to be measurably worse off than if he had not entered into it": Maharaj v Johnson [2015] P.N.L.R. 27 (PC) at [19];
d) That is because mere entry into a contract does not inevitably mean that a claimant suffers damage: UBAF Ltd v European American Banking Corp [1984] Q.B. 713;
e) A useful test for whether damage has been suffered is whether a claimant's position has been altered to his immediate, measurable economic disadvantage: Law Society v Sephton & Co [2006] 2 AC 543 at [67];
f) Whilst the entry into a contract will not cause loss if the loss is contingent on future events (so that limitation may start later), that is different from a loss whose valuation is contingent on future events. In the latter case, loss has been caused but may not be capable of valuation: see Cartright at 6—52 on p.258;
g) Tandem, submitted Mr Paul, was not measurably worse off until 2018 or 2020. Rhetorically, submitted Mr Paul, had Tandem discovered the relevant facts in 2007 and brought its claim at that stage, it may well have been met with an allegation that it had suffered no recoverable loss. That occurred, argued Mr Paul, only when the NRQ scheme was abandoned in 2018;
h) Mr Jacobs submitted that the loss is measurable by reference to the pleaded case which, he argued, was all by reference to the point of entry into the contract in 2007. For example, (i) the £2.96m loss of CPO compensation (¶56.4) is a 2007 value, (ii) the development of the Citadel as a late night bar (¶56.2) would have begun in 2007, (iii) likewise the suggested change of use (¶56.3), and (iv) miscellaneous expenses of £1m – these are not put at any given point in time and in context appear to relate, also, to 2007 or thereabouts.
a) Mr Jacobs pointed to a large number of documents – many of which were press articles, but there was also SCC Cabinet minutes – which, he argued, either made it clear that JLP was not bound to move, or from which he argued would at least be a trigger from which Tandem's director would, with reasonable diligence have found out the necessary facts to plead a claim.
b) Mr Paul submitted that those documents paint an incomplete picture; many of the documents were capable of interpretation as being consistent with the original NRQ scheme, and that in any event there was really nothing prior to 2018 which would reasonably have caused Tandem to understand that anything about the scheme might have changed. He invited me to consider that Tandem's director had been in direct contact with SCC and was entitled to rely on what he had been told by that means rather than inferences, or unattributed comment, in the press.
c) I disagree with Mr Paul to the extent that he relied on Mr Hill, Tandem's director, not having seen certain press articles as a matter of fact. That is irrelevant. What is relevant is what a reasonably diligent person would have done at any given point in time. I consider it more than arguable that such a person in Mr Hill's shoes, whose company has a significant property interest in a development zone, would be attentive to the local press even if he did not live in the area.
a) The facts are, again, overlapping, to a sufficient extent, with the issues arising in connection with breach of contract or fiduciary duty and, allied to that
b) I consider Tandem has real prospects of success in demonstrating a deliberate breach of duty which was unlikely to be discovered for some time given that it is accepted that the JLP agreements were not disclosed.
Negligent misstatement at common law
Article 1 Protocol 1
a) By ¶52—53 of the Particulars of Claim, Tandem asserts that the Citadel is a possession for the purposes of A1P1, and that the making of the representations by SCC, SCC's failure to give proper disclosure to the Inquiry, failure to keep Tandem informed as to the progress of the NRQ scheme and the position of JLP, and failure to have any proper regard to Tandem's interests in respect of the NRQ scheme and/or the substantial delay in progressing that scheme before its abandonment, amount to a disproportionate interference with Tandem's A1P1 rights. Damages are claimed.
b) By ¶38 of the Reply, Tandem asserts engagement of A1P1 on the basis of de facto expropriation for which Tandem was not compensated.
c) That paragraph of the Reply is clearly a response to SCC's Defence at ¶53(i) [71] which alleged that Tandem had not been deprived of its possessions, and nor had SCC acted in a manner to deprive Tandem of its peaceful enjoyment of the same.
d) SCC also pleaded (in its Defence at ¶53 and 53(ii) onwards) that its conduct had not disproportionately breached Tandem's A1P1 rights, and that Tandem had alleged nothing which suggested that was so.
e) As to limitation, SCC relied on the one year primary limitation found at s.7(5)(a) of the HRA (Defence ¶49) as barring the claim. Tandem accepted that its claim was prima facie time-barred as a result (Reply ¶37) but relied on two matters to obtain an equitable extension under s.7(5)(b) (¶37.1, 37.2), viz:
i) Receipt of the JLP agreements less than a year before issue, and
ii) The deliberate concealment as referred to in the context of s.32 of the 1980 Act.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
a) Sporrong and Lonnroth v Sweden (1983) 5 EHRR 35 was a case concerning town planning. The applicants owned two properties in an area of planned redevelopment in Stockholm. The properties were subject to expropriation permits (apparently an equivalent of a CPO) issued by the government at the request of the local authority. There was a prohibition on construction imposed by the local administrative board. The expropriation permits, and notices prohibiting construction, were all extended in both cases, and lapsed in respect of the first property after 25 years, and 12 years in respect of the second. The applicants were not compensated for their loss during that period. The European Court of Human Rights ("ECtHR") found by a majority that there had been a breach of A1P1 because the expropriation permits significantly reduced the possibility of the owners exercising their rights to use and dispose of the properties, and affected the substance of ownership by rendering it precarious and defeasible.
b) The Court in Sporrong at [63] decided that:
"In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are 'practical and effective', it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants."
c) However, the Court in Sporrong held at [63] that the interference with the right to use, sell, device, donate or mortgage the properties was not sufficiently serious to amount to a deprivation of possessions or a de facto expropriation within the meaning of the first part of A1P1. The headnote indicates that the interference which was found was not on the basis of de facto expropriation but on other grounds.
d) In contrast, de facto expropriation was found in Papamichalopoulos v Greece (1993) 16 EHRR 440. In that case, the applicants were deprived of their use of their land as a result of a Greek law which transferred the land to the Navy Fund. The applicants' application to the Greek Courts for restoration of their land failed. The Greek government later exchanged the applicants' land for other land of equal value. The ECtHR found that the applicants' land had been expropriated because de facto, they were no longer in a position to use and dispose of it.
e) Thus de facto expropriation arises where an applicant retains ownership but as a matter of fact cannot exercise their rights in that context because they are devoid of all substance.
a) Whilst it may be thought that it may weaken Tandem's case to observe that it agreed to the restrictions on the Citadel, that does not necessarily mean there has been no sufficiently arguable interference with Tandem's A1P1 rights, and
b) Whilst the combination of s.8 of the HRA and art. 41 of the ECHR may act as a bar to damages, that is not necessarily so: it may depend in part on if, and if so why, any claim under the other causes of action fails.
a) SCC has not shown a prima facie case that Tandem has no real prospects of demonstrating that any interference with its rights in the Citadel was disproportionate. The starting point was that of de facto expropriation which I have rejected;
b) I disagree that it will be hard for the trial judge to unpick the Inspector's report. The question is a wider one of fact and does not rest exclusively on the conclusions the Inspector reached;
c) The evidence thus far has been targeted at the question of real prospects. Whilst neither advocate submitted as much directly, and since I consider proportionality to be a highly fact-sensitive issue, I do not consider it appropriate to grant summary judgment when it may very well be that further detailed evidence on the subject will become available by the time of any trial.
a) The 1 year period has been set by Parliament, subject to an equitable extension.
b) The Courts have grappled with the approach to an extension in, for example, Rafiq v Thurrock Borough Council [2022] EWHC 584 (QB). In that case, Collins Rice J identified relevant factors as including: (a) the apparent merits of the claim; (b) the length of delay; (c) the reasons for the delay; (d) evidential prejudice and the prospects of a fair trial; (e) proportionality;
c) As to merits, he relied on his earlier argument, which I have rejected, that the claim relied on de facto expropriation. As I pointed out, if that were so, then limitation would become irrelevant. The case is, in my judgement, wider than that. I disagree with Mr Jacobs that the claim is lacking in merit. I consider it reasonably arguable in light of the submissions made before me;
d) The length of the delay is substantial. However, the reasons for that delay are argued to overlap to a great extent with the s.32 deliberate concealment point which I have allowed to go to trial. I consider that that is arguable. Whilst the equitable test under s.7(5)(b) is expressed in different terms to the s.32 test under the 1980 Act, I do not consider them to be sufficiently divorced on a factual level to say that the s.32 factors have no relevance to s.7(5)(b). Mr Jacob's submission about the lack of good reason again centred on de facto expropriation – for which, again, I mean no criticism – but it does not cover the whole picture;
e) As to evidential prejudice and the impact on a fair trial, I agree that there might be evidential issues for both sides. However, as Mr Jacobs accepted in argument, there is no actual evidence about the nature or extent of those potential problems. I accordingly do not consider that this factor weighs heavily against Tandem;
f) As to proportionality, it was submitted that the A1P1 claim is not the only claim of Tandem and there are other ways in which it can realise its property through sale or development. That may be true, but for the reasons I explained above, that is really an argument about s.8 and art. 41. Any suggestion of double recovery can be dealt with by the trial judge if and when an assessment of damages is required.
Private nuisance
"First, a private nuisance is a violation of real property rights. That means that it involves either an interference with the legal rights of an owner of land, including a legal interest in land such as an easement and a profit à prendre, or interference with the amenity of the land, that is to say the right to use and enjoy it, which is an inherent facet of a right of exclusive possession."
a) I would reject Mr Jacobs's argument that there was no real prospect of Tandem showing that the NRQ scheme was unviable. I consider such a conclusion would require a fact-sensitive analysis of a type unsuitable for an application such as this. That is notwithstanding the Inspector's conclusions, to which he referred.
b) I would also have rejected Mr Jacob's submissions so far as they focussed on the existing poor state of the area. I do not consider there was sufficient evidence before me to reach the conclusion that that rendered Tandem's case one with no real prospects. More evidence, cross-examination and argument at trial may well reveal nuances of which I could not sensibly be aware.
c) Finally, I would not have been persuaded to grant summary judgment to SCC on limitation grounds. Given that it is arguable that, had there been an actionable nuisance based on the facts alleged by Tandem, it would have been a continuing event, such a claim is equally arguably brought within limitation.
Public nuisance
"A person is guilty of a public nuisance (also known as a common nuisance) who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects."
Conclusion