Appeal Court backs proposed Tunbridge Wells cinema

The Court of Appeal has dismissed a challenge by developer GLN (Copenhagen) Southern Ltd to a proposed residential and cinema complex in Tunbridge Wells. In what the lower court had termed “an unusual reversal of the usual position”, GLN had claimed that it was barred from building the cinema under a restrictive covenant placed over part of the land by the former owner, ABC Cinemas Ltd. The company instead sought permission to go ahead with alternative plans for a £20m retail and residential development. However, the Appeal Court has backed a High Court ruling that GLN was entitled to build the cinema on neighbouring land, which had not been included in the covenant, and to use the restricted site for advertisement hoardings and access ways. The court held that, because the multi-screen cinema was merely part of a larger development, the use of the restricted land for advertising and access could not constitute use ancillary to the “principal purpose of use for image projection” under the covenant. Upon purchasing the land, situated in a conservation area at the junction of Mount Pleasant and Church Roads, GLN sought permission to develop a 56,520 sq ft (5,260 sq m) shopping complex and 22,780 sq ft (2,120 sq m) of leisure facilities, together with 48 flats and associated parking. However, the council’s local plan envisaged that the neighbouring land would be used to house a multi-screen cinema. In July, deputy High Court judge Mr Kevin Garnett QC held that GLN could build the cinema outside the boundary of the burdened land, which could then be used as a means of access. In the Court of Appeal, GLN’s counsel, Wayne Clark, claimed that the High Court judge had erred in concluding that the use of the land for advertising the cinema or for access would not be a use “ancillary to or associated with” the principal use of the adjoining land for image projection. He argued: “The judge’s conclusion has the effect of emasculating the covenants so as to enable the covenantees to complain only if use as a cinema is undertaken on the burdened land, and to prevent the covenantees from complaining of any associated, ancillary or similar use that is undertaken on the burdened land. “One would have thought that ancillary cinema use would be one that would be at the forefront of the minds of the covenantees.” However, Peter Crampin QC, counsel for the local authority, maintained that “if the draftsman had been concerned to restrict indirectly the use of land adjoining the burdened land as a cinema, it would have been easy for him to do so”. Neuberger LJ agreed, ruling that, because the council’s proposal included retails outlets and 35 residential apartments in addition to the cinema complex, the “principal use” of the unburdened land could not be considered to constitute use as a cinema. He stated that where land is used as a means of access to several units, the issue of whether the access is ancillary to one particular unit would be a “question of degree”. For example, he said, if the restricted site is used to access the cinema and one small shop, such a use may be considered ancillary to the use of the neighbouring land as a cinema, whereas an access route to a cinema and a large, well-known retail outlet may not constitute such an ancillary use. He added that the hoarding of six advertisements on the restricted land would not constitute an ancillary use if only one were to be used to advertise the cinema. GLN (Copenhagen) Southern Ltd v ABC Cinemas Ltd and others Court of Appeal (Keene, Wall and Neuberger LJJ) 27 August 2004. Wayne Clark (instructed by Cripps Harries Hall, of Tunbridge Wells) appeared for the claimant; Peter Crampin QC and Alastair Craig (instructed by the solicitor to Tonbridge Wells Borough Council) appeared for the third defendants; the first and second defendants did not appear and were not represented. References: EGi Legal News 03/09/04