Appeal against decision of the Royal Court dated 2ndSeptember, 2016 whereby it was declared that the Bellozanne covenants are spent and extinguished.

[2017]JCA027

Court of Appeal

20 February 2017

Before     :		James McNeill, Q.C., President; John Martin, Q.C., and Sir David Calvert-Smith, Q.C.
Between	Parish of St Helier		Appellant
And	Minister for Infrastructure		Respondent

Advocate N. A. K. Williams for the Appellant.

Her Majesty’s Solicitor General appeared for the Respondent.

judgment

martin ja:

Introduction

1.        This is an appeal against a decision of the Royal Court (Clyde-Smith, Commissioner, and Jurats Liston and Ronge) dated 2 September 2016.  The decision was that certain covenants contained in a contract ("the 1952 Contract") dated 31 May 1952, by which the respondent Parish of St Helier (“the Parish’) sold to the Public of Jersey (“the Public”) land described in the contract as the Bellozanne Destructor Property, were spent and extinguished.  Those covenants obliged the Public to accept refuse and other waste brought to the destructors standing on part of the land in order to be incinerated or left there.  The Parish claims that the covenants were intended to endure in perpetuity; the Public (represented in the proceedings by the appellant Minister of Infrastructure) contends that they were meant to last only so long as the destructors remained in working order, or until the Public gave reasonable notice to terminate the obligation imposed by them.  The Royal Court agreed with the Minister. 

2.        The outcome of the dispute is said to have substantial financial consequences, for two related reasons.  First, the States of Jersey intends to build on the Bellozanne land a new sewage treatment works at a cost (at 2012 prices) of £75 million.  If the covenants in the 1952 Contract oblige the States to continue to accept rubbish at the Bellozanne land, it will be impossible to build the sewage treatment works.  Secondly, the States intends to introduce a charge for refuse disposal, on the "polluter pays" principle.  If the covenants in the 1952 Contract oblige the States to accept the Parish's rubbish free of charge, as the Parish asserts, the States' ability to introduce the charge will be severely curtailed.  In reality, however, the consequence of the decision is likely only to affect the way in which two public bodies allocate between them public expenditure on waste disposal. 

The 1952 Contract

3.        The 1952 Contract was passed before the Royal Court on 31 May 1952.  As was the practice at that time, the Court's record is in French; but we were provided with an English translation which both parties were content to accept as substantially correct, and a copy of the translation is annexed to this judgment.  It is to be noted that the translation contains paragraph breaks that are not present in the French original, which proceeds from beginning to end without any such breaks.  I will use the translation for the purposes of this judgment except where reference to the French version is necessary. 

4.        The persons representing the Parish were the Constable and the Procureurs du Bien Public; those representing the Public were the Solicitor General and the Greffier.  The Parish for itself and its successors sold in perpetuity (French: à fin d’héritage) to the Public and its successors:-

"a certain property generally called the "Bellozanne Destructor Property", comprising three destructors with their buildings, appurtenances and dependencies and with the normally cultivable land, côtils, open and unexploited land and meadows which depend from the said property, which destructors, buildings, appurtenances and dependencies were built by the Vendor Parish on part of property "Bellozanne", hereafter mentioned.  Which property now transferred and sold consisted formerly of three properties, as follows".

The three properties were then described; and the contract continued by describing the adjacent land, including to the north east and north west land called Parcque de Bas retained by the Parish and to the north west, west and south west a public road called Bellozanne Valley.  It then said:-

"The whole such as it is with all and such other rights, appurtenances and dependencies as may appertain thereto situated in the Parish of St Helier, partly on the Fief of the Abbey of Bellozanne and partly on the Fief de Godelière".

5.        Up to this point, the contract is plainly dealing only with the sale of the land itself.  However, it then sets out as follows the covenants that are in issue in the proceedings.  In quoting them I have inserted, as did the Royal Court, identifying numerals that do not appear in the original. 

"It having been agreed in particular between the said parties for themselves and their successors in title as follows, namely:

[1] That the said Public of this Island will be obliged to accept in the same way as did the said Parish before the passing of the present deed all the scrap, rubbish, refuse, peelings, urban waste, sludge or other waste whatsoever which may be brought to the said destructors forming part of the said property presently transferred and sold in order to be incinerated or left there, the hours of such incinerations or deposits having to be the same as at present, that is to say, from eight hours in the morning to five hours in the afternoon and six days per week; and the said Public of this Island will also be obliged to accept the waste from the public markets at the same hours as at present, that is to say from six hours in the afternoon to eight hours in the afternoon.

[2] That the special deposits of waste emanating from hotels during the high season will be accepted by the said Public of this Island to be incinerated in the said destructors or to be left on the said property presently transferred and sold from seven hours in the morning as and whenever necessary.

[3] The said Public of this Island shall employ all the workmen or other employees that are actually employed by the said Parish to carry out the functions of the said destructors and appurtenances.

[4] That the said Parish has the right to remove the nursery or seed beds forming part of the property now transferred and sold as well as any soil which shall be necessary for the new nursery or seed beds which is in the course of being established by the said Parish in the Valley of Bellozanne.

[5] That the said Public of this Island shall allow to the said Parish a sufficient delay to permit the latter after the passing of the present contract to transfer to the said new nursery or seed beds all the shrubs and other plants which are currently growing on the old nursery or seed beds belonging to the said Parish and forming part of the property now transferred and sold."

6.        These provisions are then followed immediately by the words "The whole in perpetuity" (French: Le tout à fin d’héritage).  After that, there is a description of the Parcq de Bas retained by the Parish; an obligation on the Public to comply with defined obligations affecting the land sold; a statement of the price, £22,500; and a statement that the land was otherwise free from all rents and charges except seigneurial rights.  There then followed the words "Possession of the whole of the premises presently and thereafter in perpetuity" (again, in French, à fin d’héritage).  Finally in this part of the contract, the rights of tenants of parts of the property sold were preserved; and the parties then swore (as was at that time the practice) to the reciprocal accomplishment and guarantee of the contents of the contract according to law. 

7.        The contract then proceeded to deal with the seigneurial rights relating to the land transferred of the Fiefs of the Abbey of Bellozanne and of Godelière.  In each case, there was first a sale, cession and abandonment in perpetuity (once again, in French, à fin d’héritage) of the relevant rights, and then a declaration that the part of the land transferred which was on the relevant Fief was and should be free and quit in perpetuity (French: à perpétuité) of the seigneurial rights. 

8.        It is to be noted, therefore, that the 1952 Contract contains two different French expressions, both of which may legitimately be translated as “in perpetuity”, but which literally mean different things.  The literal translation of à perpétuité is indeed “in perpetuity”, whereas the literal translation of à fin d’héritage is “to the end of inheritance” or, by extension, “to the end of ownership”.  I return to this point later in this judgment. 

The Royal Court’s judgment

9.        The question of the status of the covenants contained in the 1952 Contract was raised for decision by representation of the Minister for Infrastructure dated 28 January 2016.  As I have said, on 2 September 2016 the Royal Court declared that the covenants were spent and extinguished.  The reasons for that conclusion were set out in a clear and comprehensive judgment of the same date.  In summary, the reasons were as follows. 

(1)       On their true construction, the covenants were not an open-ended commitment: they were "anchored firmly in the then existing three destructors and the operational arrangements which were to be maintained after their acquisition by the Public".  Those operational arrangements were to endure for so long as the three destructors themselves were operational, and they ceased when the destructors were dismantled in 1979.  At that point, all of the obligations under the covenants ceased to be of effect. 

(2)       There was a latent ambiguity as to the duration of the covenants.  That allowed the court to have regard to extrinsic evidence of the parties' subjective intentions, and that evidence supported the construction the court had already given to the covenants. 

(3)       Although the parties to the 1952 Contract appeared to believe that the covenants took effect as servitudes, they did not in law do so.  That was because there was no identifiable dominant tenement capable of being benefited, and because the covenants in part imposed positive obligations.  There was no separate category of personal servitudes in Jersey law, and that law did not permit a positive covenant to be enforced against a successor in title who was not privy to the original covenant.  In any event, if the covenants had taken effect as servitudes or had been enforceable against successors in title they would still have ceased to have effect according to their terms when the destructors were decommissioned. 

(4)       If the court was wrong to conclude that the covenants endured only for the life of the existing destructors a term should be implied that the obligations created by the covenants could be terminated on reasonable notice.  That notice was to be deemed to have been given in 1979 or, at the very latest, in January 2011 when refuse ceased to be taken to the Bellozanne land. 

(5)       A further covenant (“the 1994 Covenant”), contained in a contract made in 1994 by which the Parish sold the Parcq de Bas to the Public, that "for the avoidance of any doubt, the provisions of the first and second new clauses contained in the [1952 Contract] shall remain and shall stay in full force and vigour in perpetuity (French: à fin d’héritage)”, was "simply empty of content and of no effect"; and neither that covenant, nor any other statements made by the Public, gave rise to an estoppel. 

The appeal

10.      Each of these conclusions was challenged by the Parish in its notice of appeal.  It asserted that there was a perpetual obligation on the Public under the 1952 Contract to accept the Parish's waste.  That obligation bound the Bellozanne land and successors in title.  There was no impediment in Jersey law in principle to the existence of such an obligation, however burdensome it might be.  In reaching the opposite conclusion, the Royal Court had incorrectly applied the principles of contractual construction, and so had misinterpreted the 1952 Contract.  The covenants were tied not to the continued existence of the destructors but to the land itself, and were expressly stated to endure in perpetuity.  The obligations imposed on the Public by the covenants were passive, not positive; but even if they were positive there was in principle no obstacle to their enforcement against successors in title.  In fact, however, there had been no transfer of the title, and the Public remained bound as a covenanting party.  There was no scope for the implication of a term that the obligations could be terminated on reasonable notice.  The Royal Court had been wrong to conclude that estoppel by deed was unknown to Jersey law, and wrong to hold that the Public was not in fact estopped by the 1994 Contract. 

11.      These submissions were developed in oral argument.  We made it clear, however, that we did not wish to hear submissions on the question whether or not the 1952 Contract was effective to create a servitude or other right capable of binding successors in title.  This was primarily because we did not consider that the point was relevant, since the meaning of the covenants was the same whatever the legal classification of the obligations they created.  Moreover, given that the original parties to the covenants have perpetual existence, the point makes no difference to the outcome. 

Principles of construction

12.      The Royal Court set out extensively the principles applicable to the construction of documents, primarily by reference to the decisions of this Court in Trilogy Management v YT Charitable Foundation (International) Ltd [2012] JCA 152 and La Petite Croatie Ltd v Ledo [2009] JCA 221.  Those principles, which are well-known, may be stated as follows:

(1)       the aim is to establish the presumed intention of the makers of the document from the words used;

(2)       the words must be construed against the background of the surrounding circumstances or matrix of facts existing at the time of execution of the document;

(3)       the circumstances relevant and admissible for this purpose are those that must be taken to have been known to the makers of all parties to the document at the time, and include anything which would have affected the way in which the language of the document would have been understood by a reasonable man;

(4)       evidence of subjective intention, drafts, negotiations and other matters extrinsic to the document in question is inadmissible as an aid to construction, but may be admitted to resolve a latent ambiguity (that is to say, an ambiguity that only becomes apparent when otherwise clear words are related to the surrounding circumstances);

(5)       evidence of events subsequent to the making of the document is inadmissible as an aid to construing the original meaning of the document;

(6)       words must be read in the context of the document as a whole;

(7)       words should so far as possible be given their ordinary meaning; and if the language is unambiguous the Court must apply it unless the result is commercially absurd;

(8)       if the words used are ambiguous, in the sense of being capable of more than one construction, the court should adopt the construction that appears most likely to give effect to the commercial purpose of the agreement and to be consistent with business common sense; but there is a correlation between the degree of ambiguity and the persuasiveness of a common sense construction, so that the greater the ambiguity the more likely it is that the court will adopt a construction based on business common sense, and vice versa. 

13.      Subject to one point, both parties accepted that the Royal Court had correctly stated the relevant principles.  Advocate Williams suggested, however, that the recent decision of the United Kingdom Supreme Court in Arnold v Britton [2015] UKSC 36 was of relevance to the question of adopting a construction by reference to business common sense.  Although the majority judgments in that case certainly do discuss that question, in particular between paragraphs [16] and [22], they do not appear to me to contain anything that contradicts or goes further than the principles I have stated above.  It is nevertheless worth quoting, because the point it contains was one relied on by Advocate Williams, part of paragraph [19] of the majority judgment, delivered by Lord Neuberger of Abbotsbury PSC:

“The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made.”

Matrix of fact.

14.      The available background material is sparse.  The three destructors referred to in the 1952 Contract were built by the Parish in about 1938 to replace an incinerator on a different site.  The destructors dealt at the cost of the Parish with refuse produced by the Parish; it is not known whether or not the Parish accepted refuse from outside the Parish, and if so whether or not it charged for that service.  In about 1950 the Public Health Committee of the States of Jersey determined that a means of sewage disposal other than by discharge into the sea was necessary, and that the Bellozanne land was the only suitable place for the necessary plant.  The intention was that the sewage would be treated and combined with household waste so as to convert it into compost, the effluent being discharged into the sea as nearly clear water.  There is some material to indicate the process by which the price of the land was arrived at; but, even though this material is derived from publicly available committee documents and press reports, it seems to me that it is inadmissible on the question of construction as indicating the course of the negotiations and the subjective intentions of the parties.  Following the purchase, the Public constructed the sewage works immediately adjacent to the existing destructors, and continued to operate the destructors in the same way as the Parish had previously done.  In 1979, the destructors were dismantled and replaced by a new incinerator built on another part of the Bellozanne land a little distance away from the sewage works.  On 23 December 1994 the contract containing the 1994 Covenant was passed, the Public thereby acquiring Parcq de Bas from the Parish for £25,875.  At the beginning of 2011 a new Energy from Waste plant or incinerator started operation at La Collette, in a different part of the Island altogether; and from then onwards refuse from the Parish ceased to be taken to the Bellozanne land.  The old plant at the Bellozanne land was demolished in 2014.  The only facilities for solid waste remaining at the Bellozanne land are a chemical waste incinerator and a household recycling centre, both of which will be relocated if and when the proposed new sewage treatment works is constructed on the Bellozanne land.  The new sewage treatment works is required because the current plant is old, inefficient and failing. 

Duration of the 1952 covenants

15.      The first question that arises is whether there is any express indication in the 1952 covenants as to their intended duration.  It is to be noted that this is distinct from the question of whether the Parish was entitled to deposit refuse without charge – which it plainly was, but only for the intended duration of the obligation.  Advocate Williams contended that the statement "the whole in perpetuity", following immediately after the statement of the obligations undertaken by the Public, was a clear statement that the obligations were intended to be of perpetual duration, and the Royal Court was wrong in failing to treat it as such.  He pointed out that this was one of five occasions when the French expression à fin d’héritage was used in the 1952 Contract, the first of which came at the outset of the dispositive provisions of the contract; and it was not realistic to suppose, as the Royal Court had done, that on each of the five occasions the expression was being used to define the extent of the interest in land passing under the contract.  To the extent that the expression did serve that function, in the sense of indicating that what was being sold was an interest equivalent to an English freehold, it did so only at the beginning of the dispositive provisions and in the statement that possession of the whole of the premises should be presently and thereafter in perpetuity.  The proximity of the expression "The whole in perpetuity" to the covenants indicated that it was serving a different purpose, namely to define their duration. 

16.      In my judgment, the Royal Court was correct to decide that there was no express statement in the 1952 Contract of the duration of the covenants.  That is for two main reasons.  First, it appears to me that the expression à fin d’héritage is being used throughout the 1952 Contract to define the extent of the interest sold.  As explained by Richard Falle in "The Structure of a Pro Forma Jersey Conveyance" in the Jersey Law Review, June 2004:

“The vast majority of transactions are of course, for the sale and purchase of perpetual rights in land. The formal character of such mutations of title is again flavoured by history: the transfers are nominally the lease and sale of feudal tenancies, land held by the tenant of a fief. Such tenancies were in origin, vulnerable to the rights of the Seigneur. First held for a term, later for life, they eventually became hereditary. In practice, the vast majority of such tenancies are hereditary, perpetual, indefeasible, and freely alienable. Moreover, while the terminology of feudalism survives, the hereditary tenancy is, in practice, the equivalent of an English freehold…. In all contracts affecting land, except as limited, a party is said to act pour lui et ses hoirs - for himself and his heirs - and where an hereditary title without term or retention is involved, it is said to be à fin d’héritage normally, if not entirely accurately translated, "in perpetuity". The propriété of land enjoyed à fin d’héritage is an ownership comparable as noted above, to the English freehold. ”

Accordingly, the first occurrence of the expression à fin d’héritage denotes that the Parish is selling a perpetual estate in the Bellozanne land.  That position is reinforced by the third occurrence, which makes clear that the land is transferred with a perpetual right to possession.  The fourth and fifth occurrences of the expression define the extent of the seigneurial rights transferred, which are again equivalent to a freehold.  Thus four of the five occurrences of the expression are concerned with defining the nature of the interest passing under the contract, and it would be perverse to treat the second occurrence – in the phrase "le tout à fin d’héritage” – as serving a different purpose.  That is particularly so in light of the use twice in the 1952 Contract of the contrasting expression à perpétuité , which is used to indicate a state of affairs (freedom of the land from seigneurial rights) resulting from a transfer of those rights à fin d’héritage.  In effect, the first three occurrences of the expression à fin d’héritage in the 1952 Contract amount collectively to no more than a statement that the Parish is transferring the Bellozanne land subject to certain rights for an estate equivalent to an English freehold and with vacant possession.  It is the case that, even on this analysis, the parties appear to have intended to have created not merely personal covenants but servitudes, which are rights binding the land in favour of other land; but even on that basis the purpose of the use of the expression à fin d’héritage was to indicate that the covenants were intended to create an estate in land in favour of some other land, not to define the duration of the obligations they imposed. 

17.      The second main reason why I consider that there is no express statement in the 1952 Contract as to the duration of the covenants is as follows.  As I have indicated, Advocate Williams relied upon the expression "the whole in perpetuity" as applying directly to the covenants and as defining the duration of the obligations imposed by them.  However, it cannot be the case that each of the obligations is to be of perpetual duration.  Covenants [3], [4] and [5] are necessarily of limited duration.  The obligation to employ current employees must come to an end on the retirement or death of the last of those employees.  The obligation to allow the Parish to transfer the existing nursery or seed beds and soil to the new site "in the course of being established" is plainly a one-off obligation.  The obligation to allow the Parish "a sufficient delay" to transfer shrubs and plants has built into it a time limitation: it cannot take "until the end of inheritance" to effect the transfer.  But if the expression "the whole in perpetuity" cannot apply to all the covenants, what reason is there to apply it to some only of them? – particularly since by definition they could not be "the whole".  Advocate Williams sought to get round this difficulty by relying on the principle that a court may in certain circumstances enforce severable parts of a covenant, provided that it does not rewrite the covenant.  He gave as an example R A Rossborough (Insurance Brokers) Limited v Boon (Royal Court 2001/157); but that was a case where the relevant covenant was partly unenforceable as being in restraint of trade, and the case is merely an example of the application of the "blue pencil" test for deciding whether a contractual provision can be severed so as to discard the part which is unenforceable and leave the remainder as an enforceable provision.  That has nothing to do with a case like the present, where all the obligations are enforceable and the question is consequently not of their enforceability but of their duration.  Advocate Williams also suggested that the problem could be overcome by looking to the overriding intention, which was that refuse should be taken in perpetuity; but it is in my view impossible to treat the words "the whole in perpetuity" as applying only to those bits capable of perpetual duration, and ignoring their apparent application to the rest. 

18.      On the basis, therefore, that the 1952 Contract contains no express term as to the duration of the covenants, the second question is as to the intended (but unexpressed) duration.  This is a matter of construction, to be determined in accordance with the principles I have outlined above.  The first and second covenants themselves are ambiguous as to duration: it is not clear on their face whether they are intended to last in perpetuity or for some lesser period.  Advocate Williams did not suggest that the Royal Court had misidentified the relevant principles of construction, but he disputed the application of those principles to the circumstances of the case.  In particular, in disputing the Royal Court's conclusion that the duration of the covenants was tied to the life of the destructors, he made the following points:

(a)       both parties in the 1952 Contract were artificial persons capable of enduring, unless dissolved, in perpetuity;

(b)       it was anyway clear from the words "between the parties for themselves and their successors or assigns" that the parties intended that the agreement should bind not merely themselves but their successors, thereby showing that they expected the covenants to be capable of long duration;

(c)       the obligation "to accept just as the said Parish has done before the passing of the present contract" was not, as the Royal Court had erroneously thought, an indication against long duration because what the Parish had done would become uncertain over time, since the contract immediately went on to define the previous practice by stating the type of refuse that was to be accepted;

(d)       the obligation to accept refuse applied to refuse taken to the destructors "or left there", which – as the reference in the obligation to accept rubbish from hotels during high season "to be incinerated in the said destructors or to be left on the property now sold" demonstrated – meant left on the Bellozanne land, indicated that the covenants were not dependent on the existence of the destructors;

(e)       it was known at the time of the 1952 Contract that the destructors were likely to have a limited life, but the whole tenor of the language suggested that the parties contemplated more than a temporary arrangement;

(f)        if the matter were one of business common sense, the construction should favour the Parish: the Bellozanne land was the only option available to the Public, the Parish would be deprived of its only facility for waste disposal, and the Public had the ability to recoup any cost through central taxation. 

19.      In my view, the Royal Court was right to hold that the covenants were of limited duration, although I think that it was wrong to hold that the covenants came to an end when the original destructors were decommissioned.  The key fact in the background material is that to the knowledge of all parties the purpose of the acquisition of the Bellozanne land was to construct a sewage works on it.  At the time, the preferred method of dealing with the Island's sewage was to combine solid matter with household waste; and accordingly retention of the ability to process refuse on the Bellozanne land suited both parties to the transaction.  The processing of refuse was, however, merely ancillary to the primary purpose of sewage treatment.  It must have been obvious that, as technology advanced, other methods of achieving the primary purpose would or might be developed that left no place for the ancillary purpose of refuse disposal.  That is in fact what has happened.  In those circumstances, it seems to me that the parties cannot be taken to have intended that the Parish should continue to be entitled to take all its rubbish to the site and leave it there, notwithstanding that there was no longer any need for it in the process of sewage disposal.  To my mind, the major obstacle to Advocate Williams' argument is that it involves the proposition that the Parish is entitled in perpetuity to dump all its rubbish on the Bellozanne land.  It is part of his own argument that the Public did not, in the 1952 Contract, undertake any positive obligation to dispose of rubbish left at the land; but that means that, if he is right, the Parish is in principle entitled to take rubbish to the Bellozanne land until not merely the sewage works but the entirety of the site itself is full to capacity – at which point, presumably, the Public falls into breach of its obligation to accept refuse.  It is no answer to that point to say that the Public can take the refuse somewhere else for processing, since the whole focus of the covenants was on what was to be done on the Bellozanne land itself.  I do not accept that the parties intended a free-standing obligation on the Public to accept refuse regardless of the state of operations on the Bellozanne land.  In my view, the duration of the covenants was tied not to the continued existence of the original destructors but to the continuance of the process of sewage disposal which utilised household waste in combination with sewage in the production of compost.  On the material available, it is clear that that method of sewage disposal came to an end at the latest in January 2011; and at that point in my judgment the obligations imposed by the covenants contained in the 1952 Contract came to an end. 

20.      Before leaving the question of construction of the covenants, I should make one further point.  The Royal Court took the view that this was a case of latent ambiguity.  This was on the basis that "the issue of the duration of the obligation created by the clauses would not have arisen initially after the passing of the contract in 1952, as the operational arrangements were then clear and would continue.  The ambiguity over duration has arisen over time".  In my view, the ambiguity in this case was patent, not latent, and the Royal Court was wrong to admit extrinsic evidence as an aid to resolving it.  The reason is that the uncertainty inherent in the covenants as to their duration has been there since the passing of the 1952 Contract, and it is irrelevant that nobody understood there to be an issue about it until later.  As I have indicated above, a latent ambiguity is one which becomes apparent only when surrounding circumstances are taken into account.  An example is a grant of a right of way through the gate on the southerly boundary of a property to a defined terminus.  On the face of it, there is no ambiguity in that provision: find the gate, and the route of the right of way becomes clear.  If, however, there are in fact two gates on the southerly boundary, it immediately becomes apparent that the provision is ambiguous; and it is then that extrinsic evidence is available to resolve the ambiguity. 

Reasonable notice

21.      Having regard to my conclusion on the primary question of construction, I do not find it necessary to deal with the Royal Court's alternative ground of decision, namely that it was possible to imply in the 1952 Contract a term entitling the Public to give reasonable notice to determine the obligation to accept refuse. 

Estoppel

22.      The final question that arises for determination is as to the effect of the 1994 Covenant.  This was contained in a contract made between the Parish and the Public on 23 December 1994 by which the Parish sold for £25,875 the Parcq de Bas to the Public, and was that "for the avoidance of any doubt, the provisions of the first and second new clauses contained in the [1952 Contract] shall remain and shall stay in full force and vigour in perpetuity (French: à fin d’héritage)”.  As I have indicated, the Royal Court rejected the suggestion that this gave rise to an estoppel by deed or by convention, instead treating it as of no effect. 

23.      In my judgment, the Royal Court was right to hold that this did not give rise to an estoppel preventing the Public from denying that the first two of the covenants in the 1952 Contract continued in perpetuity.  At the date of the 1994 contract, those two covenants were, on the view I have taken of the matter (but not on the view taken by the Royal Court) still in force, since incinerators were still operating on the Bellozanne land and it is to be inferred that the process of combining sewage and refuse had not yet ceased.  It was therefore necessary to give some consideration to their status in circumstances where the only piece of land retained by the Parish in 1952 (apart from the road) was being transferred to the Public.  When the covenants were imposed in 1952, it appears to have been thought that they were capable of subsisting as a servitude; and, as I have explained above, that, rather than any intention to define the duration of the obligation, was the reason for including the covenants within the expression "the whole in perpetuity".  In 1994, the only piece of land possibly capable of being regarded as a dominant tenement capable of being benefited by the covenants, and so giving them the apparently intended status of a servitude, was being merged in the supposed servient tenement.  The parties' evident concern was to try to ensure that, despite the absence of a dominant tenement, the covenants should continue in effect as a servitude; and that explains their statement that the covenants were to remain and stay in full force and vigour, and that they should do so à fin d’héritage – which, just as in the 1952 Contract, meant for an interest equivalent to a freehold estate.  What is in my view entirely clear, however, is that they did not agree that covenants which at their inception were limited in duration by reference to the nature of the sewage disposal process carried on at the Bellozanne land should suddenly become of perpetual duration.  There being no agreement to that effect, there can be no estoppel. 

Disposal

24.      For these reasons, I would dismiss this appeal.

MCNEILL JA:

25.      I agree.

CALVERT-SMITH JA:

26.      I also agree.

Appendix

Unofficial Translation of a Contract of Sale of Encumbered Land by the Parish of St Helier to the Public of this Island passed before the Royal Court on 31 May 1952.

There were gathered personally before us at St Helier the following:

Henry Le Feuvre Grant, Constable of the Parish of St Helier, and Messrs Edwin Wyndham Hettich and James de Faye Le Poidevin, Procureurs du Bien Public of the said Parish, the said Constable and Procureurs acting for and in the name of the said Parish of St Helier and authorised to represent the said Parish for the purposes of these presents by virtue of two certain Acts dated 24 July 1951 and 11 September 1951, respectively, of the Assembly of Principals and Officers of the said Parish of St Helier, of the first part;

And Ralph Vibert, Solicitor General, and Francis de Lisle Bois, Greffier of the States, authorised for and in the name of the Public of this Island and acting by virtue of both a certain Act of the States dated 22 April 1952 and of a certain Act of the Public Health Committee dated 31 March 1952, of the other part.

The said Constable and Procureurs du Bien Public authorised as aforesaid of their own free will sold (“baillèrent et vendirent) in perpetuity for and in the name of the said Parish of St Helier and for its successors to the said Solicitor General and Greffier of the States, authorised as aforesaid, for and in the name of the Public of this Island and for its successors a certain property generally called the “Bellozanne Destructor Property”, comprising three destructors with their buildings, appurtenances and dependencies and with the normally cultivatable land, côtils, open and unexploited land and meadows which depend from the said property, which destructors, buildings, appurtenances and dependencies were built by the Vendor Parish on part of property “Bellozanne”, hereafter mentioned.

Which property now leased and sold consists formerly of three properties, as follows:

Firstly, a certain meadow or piece of land in grass (formerly in three pieces) containing with the fossé or bank and wall and relief of the West, the party ownership of the three boundary stones of the North and of a small end of wall and relief of the South, 5 vergées 16 perches 19 feet; Secondly, a certain farmhouse with the offices, yards, issues and avenues dependent thereof as well as a certain other house or cottage and appurtenances (which farmhouse, offices, house or cottage have now been destroyed), the whole generally called “Bellozanne” with the following lands:

“Le Jardin à Potage” of the erstwhile house “Bellozanne” containing 16 perches 9 feet; the “Pré de Haut” containing 1 vergée 23 perches 21 feet the “Côtil au Sud dudit Pré de Haut” containing with a bank and relief co-extensive of the said “Pré”, 3 vergées 23 perches 16 feet; the “Côtil du Nord” containing with the bank and relief of the North and the bank of the West as far as a stream, 3 vergées 21 perches 11 feet; the “Valette” (formerly a quarry) joining by the West to the said “Côtil du Nord” containing with a small end of a bank by the West 1 vergée 14 perches 21 feet; the “Grand Côtil” containing with the bank of the West the length of the said stream and the bank of the South, the same co-extensive of the site of the said house and offices, (and this after having deducted a roadway of 8 feet in order to come and go from the said “Valette” to the said “Côtill du Nord” and to the “Clos du Haut”) 9 vergées 13 perches 2 feet; the “Pendants au Sud de la terre qui fut à Mr John Jeune” and that to the North of that belonging to Mr Robert Le Feuvre (in right of Samuel Le Feuvre), containing with the bank and relief of the South 1 vergée 8 perches; the said “Clos de Haut” containing with the banks and reliefs all around save by the North 2 vergées 33 perches 21 feet; the part of the “Valette” and Côtil acquired by the late Pierre Jean Simon from the said Samuel Le Feuvre containing with the bank and relief of the East towards the said “Côtil du Sud” of the said “Pré du Haut”, the bank and relief of the North and the bank and relief of the West co-extensive of the Côtil of  the said Mr Le Feuvre 2 vergées 20 perches 2 feet;  and the “Grand Pré” containing with the bank and relief of the West towards the public road and the wall and relief of the North co-extensive of the driveway or carriageway, 5 vergées 28 perches 1 foot (all the said measurements agreed and understood between the parties); and Thirdly a certain house (now demolished) formerly called “Brickfield Cottage” with the land all around thereof.

The said property now leased and sold joining together with the bank and relief of the North-West towards the land of Josué John Le Cornu, the party ownership of the boundary stones of the North towards the land of Philip George Ozard, the bank and relief of the East towards the “Côtil du Sud”, the bank and relief of the West towards the “Valette” belonging to Robert Le Feuvre, the bank and relief of the said Western side towards the public road as well as towards a certain other property which belonged to Oliver Mercier, an end of a bank and relief of the South co-extensive of the “Pendants” towards the public road, as well as the bank and relief of the said Southern side towards the côtil belonging to Robert Le Feuvre, joining by the North-West or thereabouts and by the South-West or thereabouts to the property of Philip George Ozard, by the North-West to the land of Josué John Le Cornu, by the North-East and by the North-West or thereabouts to the “Parcq de Bas” retained by the Vendor Parish, joining by the East or thereabouts, the South-East or thereabouts, the North, the North-East or thereabouts and the North-West or thereabouts to the land of Arthur Victor Mundy (having right from William Harrison Bailey, who was in right of Nicholas Jean Poingdestre), joining by the North-East or thereabouts to the land of Lady Beryl Norman, née Salmond, wife of Sir Henry Norman, by the East, the North-East or thereabouts and the North or thereabouts to the land of Hedley Charles Valpy, bordering by the South or thereabouts a public (Parish) by-road, joining by the South-West or West or thereabouts, by the South as well as by the South-East or thereabouts to the land of the said Robert Le Feuvre, bordering by the East or thereabouts and the South-East or thereabouts a stream (the course was altered when the said destructor and appurtenances were constructed) and this towards the land of said Robert Le Feuvre and towards the land of William Edward Le Vavasseur dit Durell and bordering by the North-West or thereabouts, the West or thereabouts and the South-West or thereabouts the public (Parish) by-road called “Bellozanne Valley”.

The whole such as it is with all and such other rights, appurtenances and dependencies as may appertain thereto situate in the Parish of St Helier, partly on the Fief of the Abbey of Bellozanne and partly on the Fief de Godelière.

It having been agreed in particular between the said parties for themselves and their successors in title as follows, namely:

That the said Public of this Island will be obliged to accept in the same way as did the said Parish before the passing of the present deed all the scrap, rubbish, refuse, peelings, urban waste, sludge or other waste whatsoever which may be brought to the said destructors forming part of the said property presently transferred and sold in order to be incinerated or left there.

The hours of such incinerations or deposits having to be the same as at present, that is to say, from 8 hours in the morning to 5 hours in the afternoon and six days per week.

The said Public of this Island will also be obliged to accept the waste from the public markets at the same hours as at present, that is say from 6 hours in the morning to 8 hours in the afternoon.

That the special deposits of waste emanating from hotels during the high season will be accepted by the said Public of this Island to be incinerated in the said destructors or to be  left on the said property presently transferred and sold from 7 hours in the morning as and whenever necessary.

That the said Public of this Island shall employ all the workmen or other employees which are actually employed by the said Parish to carry out the functions of the said destructors and appurtenances.

That the said Parish has the right to remove the nursery or seed beds forming part of the property now transferred and sold as well as any soil which shall be necessary for the new nursery or seed beds which is in the course of being established by the said Parish in the Valley of Bellozanne.

That the said Public of this Island shall allow to the said Parish a sufficient delay to permit the latter after the passing of the present contract to transfer to the said new nursery or seed beds all the shrubs and other plants which are actually growing on the old nursery or seed beds belonging to the said Parish and forming part of the property now transferred and sold.

The whole in perpetuity.

And for the avoidance of all doubts on this subject it is expressly understood by the said parties to these presents that the “Parcq de Bas” reserved by the said Parish is found at the Northern extremity of the property now leased and sold and in which Southern or South-Eastern part of the said “Parcq de Bas” is found a private roadway which extends North and abuts onto the public (Parish) by-road near the property “Thornhill” belonging to John Philip Agnes, which “Parcq de Bas” joins by the North or thereabouts to the said land belonging to Josué Jean Le Cornu, by the North-East or thereabouts to the land of the said Arthur Victor Mundy, by the South-East and the South-West to the said property now leased and sold and by the West or thereabouts to the land of the said Mr Le Cornu.

Charging the said Public of this Island and its successors with conforming to all the other clauses, conditions and restrictions to which the Vendor Parish may be subject for and on account of the property now leased and sold to which it had right as follows: to the said property “Bellozanne” (now demolished) and land by contract dated 8 June 1935 of hereditary lease and purchase from the Attorney of Robert John Le Lacheur, principal heir of the late Ellizabeth Eleanor Le Lacheur, née Randall, his mother, (when living wife of Ernest Le Lacheur), which deceased had right (amongst other realty) by a deed of division passed before Court on 4 February 1899 of the real estate of the late Robert Randall, her father, which deceased had right by contract dated 5 April 1879 of hereditary lease and sale from Ellen Jemima Grey Simon, she having right (amongst other realty) by the deed of division passed before Court on 29 December 1877 of the realty of the late Pierre Jean Simon; to the said “Pré” or piece of meadow land by contract dated 2 November 1929 of hereditary lease and purchase from the said Elizabeth Eleanor Randall, she having right as aforesaid; and to the said house “Brickfield Cottage” (now demolished) by contract dated 17 October 1936 of hereditary lease and sale from Wilfred Thomas Le Mercier and Lilian Annie Gallichan, née Le Mercier, wife of Herbert Clarence Gallichan, they having right by the Will of Immoveables of the late John Thomas Le Mercier, their father, which Will was registered at the Public Registry of this Island by virtue of a certain Act of the Royal Court dated 12 October 1935.

The said lease and hereditary sale made for and in consideration of the sum of £22,500.00 Sterling which the Treasurer of the States for and in the name of the said Public of this Island shall pay in cash to the said Vendor Parish ten days after the passing before Court of the present contract.

The remainder free and quit of all rentes and other charges, save the Seigneurial rights. Possession of the whole of the premises presently and thereafter in perpetuity.

And the Public of this Island shall suffer the tenants which occupy part of the property now leased and sold to enjoy it according to their agreements, the said Public of this Island receiving from them the rentals accordingly.

The parties then took oath as follows: the said Constable and Procureurs du Bien Public for and in the name of the said Parish of St Helier and for its successors and the said Solicitor General and Greffier of the States for and in the name of the said Public of this Island and for its successors to the reciprocal accomplishment and guarantee of the contents of these presents according to law.

And there were also present Ralph Vibert, Solicitor General, and Ralph Edward Bishop Voisin, Receiver-General of the Revenues of Her Majesty, Dame of the Fief of the Abbey of Bellozanne, which Solicitor General and Receiver-General of the Revenues of Her Majesty for and in the name of Her said Majesty, Dame of the Fief as aforesaid, and for Her successors or those in right, sold, ceded and abandoned in perpetuity to the said Solicitor General and Greffier of the States for and in the name of the Public of this Island all and such rights, rents and Seigneurial services without any reserve whatever such as they may have been due at any time on the part of the property presently transferred and sold which is found on the said Fief of the Abbey of Bellozanne. The said sale, cession and abandonment of Seigneurial rights made for and in consideration of the sum of  £680-00 Sterling, which sum the said Receiver-General of the Revenues of Her said Majesty recognised having received before the passing before Court of the present contract.

Hereafter the part of the said property presently leased and sold which is found on the said Fief of the Abbey of Bellozanne is and shall be free and quit in perpetuity of the said Seigneurial rights.

And there was also present Lester Vivian Bailhache, duly authorised attorney of Vivian John Bailhache, Seigneur of the Fief of Godelière, as appears by Attorney passed before Court the 15 day of May 1935 which Attorney sold, ceded and abandoned in perpetuity for and in the name of his said Constituent Seigneur as aforesaid and for his successor Seigneurs to the said Solicitor General and Greffier of the States for and in the name of the said Public of this Island all and such rights, rents and Seigneurial services without any reserve whatever such as they may have been due at any time on the part of the said property now leased and sold which is found on the said Fief de Godelière.

The said sale, cession and abandonment of Seigneurial rights made for and in consideration of the sum of £20-00 Sterling, which sum the said Attorney of the said Vivian John Bailhache, Seigneur as aforesaid, recognised having received before the passing of this present contract before Court.

Hereafter the part of the said property presently leased and sold which is found on the said Fief de Godelière is and shall remain free and quit in perpetuity of the said Seigneurial rights.

This translation is intended as a guide and has been compiled in accordance with the Royal Court Rules RC06/01 “Use of English in Contracts Passed Before the Royal Court and in Other Documents Registered in the Public Registry”, the Appendices and Glossary annexed thereto.

Ref: LH/500/406//96

Authorities

Trilogy Management v YT Charitable Foundation (International) Ltd [2012] JCA 152.

La Petite Croatie Ltd v Ledo [2009] JCA 221.

United Kingdom Supreme Court in Arnold v Britton [2015] UKSC 36.

R A Rossborough (Insurance Brokers) Limited v Boon 2001/157.