GLN (Copenhagen) Southern Ltd. v Tunbridge Wells Borough Council [2004] EWCA Civ 1279 (27 August 2004)

GLN (Copenhagen) Southern Ltd. v Tunbridge Wells Borough Council [2004] EWCA Civ 1279 (27 August 2004)

Use of the property for access to a cinema in a mixed-use development does not constitute an ancillary use in breach of the restrictive covenant, as the principal purpose of the premises served is retail, not cinema, and the covenant must be interpreted with restraint and commercial sense.

Citation
[2004] EWCA Civ 1279
Parties
Appellant/claimant: GLN (Copenhagen) Southern Ltd; Respondent/3rd Defendant: Tunbridge Wells Borough Council
Jurisdiction
England and Wales
Judgment Date
27 August 2004
Procedural Posture
Appeal From High Court (chancery Division) / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Construction of Covenants, Ancillary Use, Planning Permission, Declaratory Relief
Property Law Land Law Restrictive Covenants Construction of Covenants Ancillary Use Planning Permission Declaratory Relief

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Parties

GLN (Copenhagen) Southern Ltd

Appellant/claimant

Tunbridge Wells Borough Council

Respondent/3rd Defendant

Procedural Posture

Appeal From High Court (chancery Division) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether use of property for access to a cinema constitutes breach of restrictive covenant
  2. 2 Interpretation of 'ancillary use' in the context of restrictive covenants

Ratio Decidendi

Use of the property for access to a cinema in a mixed-use development does not constitute an ancillary use in breach of the restrictive covenant, as the principal purpose of the premises served is retail, not cinema, and the covenant must be interpreted with restraint and commercial sense.

Court Disposition

Appeal dismissed

Orders

  • No order as to costs
  • Declaration to be amended and submitted for approval