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Lease dispute goes initially in favour of M & S

The Court of Session has recently ruled against plans by the Gyle Shopping Centre in Edinburgh to build a Primark Store partly on an existing car park, because Marks & Spencer (M & S), one of the centre’s tenants, has a share in rights to the car park. It is merely the first stage in a legal battle over the proposals.

The complicated case considered the question of whether the share of the car park, which was included in the lease agreement as an add-on to the main subject of the tenancy – the M & S store at the Gyle Centre – benefited from the same real rights as the store.

The Centre went to court, seeking a declarator that it did not, and that the Centre’s plans would therefore not breach M & S’s rights.

However, Lord Tyre recently rejected this argument.

“The grant of a one-third pro indiviso share of the Shared Areas carried with it the benefits, as well as the obligations, set out in Parts II and III of the lease,” he ruled. “These included benefits incidental to, and essential to, the enjoyment of the principal grant: car parking facilities for customers and staff, rights to use access roads and pedestrian routes, and so on.”

“In my view, the right granted to the defender in respect of the Shared Areas within the South Gyle shopping centre site is properly to be characterised as “substantially part and pertinent” of the principal grant of the area coloured blue on the Boundary Plan,” he explained.

Nor, said Lord Tyre, had M & S consented to the proposals in meetings of the shopping centre management committee.

The case is continuing.

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