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URL: http://www.bailii.org/je/cases/UR/2016/2016_153.html
Cite as: [2016] JRC 153

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Contract - declaration sought by the Minister as to the meaning of certain provisions in contract dated 31 May 1952.

[2016]JRC153

Royal Court

(Samedi)

2 September 2016

Before     :

J. A. Clyde-Smith, Esq., and Jurats Listron and Ronge

Between

The Minister of Infrastructure

Representor

 

And

The Parish of St Helier

Respondent

 

IN THE MATTER OF THE REPRESENTATION OF THE MINISTER OF INFRASTRUCTURE

AND IN THE MATTER OF THE FORMER BELLOZANNE WASTE TREATMENT PLANT

The Solicitor General appeared for the Representor.

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

CONTENTS OF THE JUDGMENT

 

 

Paras

1.

Introduction

1-3

2.

The 1952 contract

4-9

3.

Background

10-20

4.

Subsequent history

21-24

5.

Reason for the application

25-26

6.

Jurisdiction to grant declaratory relief

27-29

7.

Principles of construction

30-41

8.

Servitudes

42-45

9.

Construction of clauses

46-55

10.

Latent ambiguity and extrinsic evidence

56-58

11.

Servitude personnelle

59-94

12.

Implied term

95-106

13.

1994 contract

107-113

14.

Estoppel

114-117

15.

Estoppel by deed

118-124

16.

Promissory estoppel and estoppel by representation

125-134

17.

Parliamentary privilege

135-138

18.

Conclusions

139-140

Judgment

the commissioner:

1.        By his representation of 28th January, 2016, the Minister for Infrastructure seeks a declaration as to the meaning of certain provisions contained in the hereditary contract of sale and purchase dated 31st May, 1952, ("the 1952 contract") and made between the Parish of St Helier ("the Parish") and the Public of the Island ("the Public"). 

2.        The expression "the Public" in contracts is one that has grown up over the centuries as a conventional description for property which is owned by the States of Jersey ("the States") on behalf of the Island community (see Pearce v Treasurer of the States [2014] JRC 139B at paragraph 32) and we use the terms "the Public" and "the States" interchangeably. 

3.        In essence, the Public wishes to introduce "user pays" charges for waste disposal but the Parish maintains that under the 1952 contract it is entitled to have its refuse processed by the Public free of charge in perpetuity.  

The 1952 contract

4.        By the 1952 contract, the Parish, for its successors, sold to the Public and for its successors:-

"Une certain propriété communément appelée "The Bellozanne Destructor Property" comprenant trois destructeurs avec leurs édifice appartenances et dépendances et avec les terres, côtils, terrains, prés et prairies qui dépendent de ladite propriété, lesquels destructeurs, édifices, appartenances et dépendances furent érigés par ladite Paroisse Bailleresse et Venderesse sur-partie de la propriété " Bellozanne" ci-après mentionnée."

[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" hereinafter mentioned.]

5.        The 1952 contract then describes the three pieces of land which comprised the single corps de biens fonds which was then being sold ("the Bellozanne land") and the boundaries and adjoining land.  The Parish retained a field known as Le Parcq de Bas (which we know from a subsequent contract measured some 5 vergees and 7 perches) situated on the north-east and north-west side of the Bellozanne Land and a road known as "Bellozanne Valley" situated on part of the western and south western side of the Bellozanne land. 

6.        The 1952 contract then contains unnumbered monolithic provisions which fall to be construed, to which we have added numbers in square brackets, as follows:-

"Etant tout spécialement convenu et accordé entre lesdites parties pour elles et leurs successeurs ou ayant droit, comme-suit, savoir : [1] Que ledit Public de cette Ile sera tenu d'accepter de même que le faisait ladite Paroisse avant la passation du présent contrat tous les rebuts, déchets, détritus, épluchures, résidus urbains, gadoues ou autres ordures quelconques qui pourront être apportés auxdits destructeurs formant partie de ladite propriété présentement baillée et vendue pour y être incinérés ou laissés, les heures de telles incinérations ou dépôts devant être les mêmes qu'actuellement, c'est-à-dire de huit heures du matin à cinq heures de l'après-midi et ce six jours par semaine ; et sera aussi ledit Public de cette Ile tenu d'accepter les ordures des marchers publics aux mêmes heures qu'à présent, c'est-à-dire, de six heures de l'après-midi à huit heures de l'après-midi.  [2] Que les dépôts spéciaux d'ordures provenant des hôtels pendant la haute saison seront acceptés par ledit Public de cette Ile pour être incinérés dans lesdits destructeurs ou pour être laissés sur ladite propriété présentement baillée et vendue à partie de sept heures du matin toutes fois et quantes qu'il en sera nécessaire. [3] Que ledit Public de cette Ile prendra à son emploi tous les ouvriers ou autre employés qui sont actuellement employés par ladite Paroisse pour faire fonctionner lesdits destructeurs et appartenances.  [4] Que ladite Paroisse aura le droit d'enlever de la pépinière formant partie de la propriété présentement baillée et vendue autant de terre dont elle aura besoin pour la nouvelle pépinière qui est en voie d'être établie par ladite paroisse dans la Vallée de Bellozanne.  [5] Que ledit Public de cette Ile sera tenu d'accorder à ladite Paroisse un délai suffisant pour permettre à cette dernière après la passation du présent contrat de transférer à ladite nouvelle pépinière tous les arbustes et autres plantes qui croissent actuellement sur l'ancienne pépinière appartenant à ladite Paroisse et formant partie de ladite propriété présentement baillie et vendue."

7.        These five clauses, which we will refer to as "the Bellozanne covenants", can be translated as follows:-

"It having been agreed in particular between the said parties for themselves and their successors or having right 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 8 hours in the morning to 5 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 public markets at the same hours as at present, that is to say from 6 hours in the afternoon to 8 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 6 hours in the morning as and whenever necessary.

3.        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.

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."

8.        There then follows the phrase "Le tout à fin d'héritage" (the whole in perpetuity), a description of the Parcq de Bas and its boundaries, the provenance and the consideration which was £22,500. 

9.        We now set out the background. 

Background

10.      In or about 1938, the Parish built three destructors upon land it owned in Bellozanne Valley, as a replacement for the Parish incinerator, then at the Parish's Westmount depot, and this in order to deal with refuse produced by the Parish.  Little is known about the operation of this facility, save that it must have been at the cost of the Parish.  It is not known whether other parishes disposed of their refuse there and if so, whether they were charged for that service. 

11.      In or around 1950, the Public Health Committee ("the Committee") required to build a sewage works as part of the Island main drainage scheme and it proposed the purchase of the Bellozanne land for this purpose, land upon which these three destructors had been built and were operating.  The sewage would be combined with refuse to make compost. 

12.      Correspondence appears to have been commenced by Advocate R H Le Masurier, acting for the Parish, who wrote to the Committee on 8th August, 1950, opening the question of the purchase by the Committee "of the Parish Destructor at Bellozanne Valley." 

13.      A discussion of the proposal took place at a meeting of the Roads Committee on 29th August, 1950, attended by two members of the Public Health Committee, Advocate Le Masurier and the Chief Engineer, Mr S Gothard.  The minute is helpful in setting out the background and the proposal that was put to the Parish:-

"Senator Edward Le Quesne explained to the meeting that when the question of the sewage of the Island had been examined, two possibilities for sewage disposal had presented themselves.  One was by means of discharging the sewage into the sea and the other by taking it to some centralised plant where it could be turned into compost.

Mr Gothard had made survey of the currents and tides, and this had shown that whatever sewage would be discharged into the sea would almost all return to these shores, fouling the beaches as much as at present.

The only alternative, therefore, was to establish a plant to convert the sewage into compost and then discharge the effluent into the sea as nearly clear water.

The procedure in places on the mainland had been investigated when examining this matter and it had been found that a practical solution to the problem existed by collecting, not only the sewage, but household refuse, and using the two to make compost.  It would mean that the whole of this waste matter would have to be brought to a central position and, after a comprehensive survey it had been decided that, apart from pumping sewage to the Five Mile Road, the only practical place would be Bellozanne Valley, where the destructor is situated.  Very nearly all of the valley would have to be utilised.  There would be no question of any nuisance, as no smell would result from the process.  Two similar plants had been examined, one at Middlesex and one at Bradford, and the lay-out of the plants suggested well-wooded countryside, with very little sign of the plant; in point of fact, people went to the areas where the plants were situated for recreation, as well as to inspect the plants.

The Public Health Committee would thus take over the disposal of the town refuse and a considerable saving would result to the Parish.  On the other hand, the collection would be in the hands of the Parish authorities as at present.  It was hoped that in time the whole of the island refuse disposal would be centralised in that one spot.

It was emphasised that this scheme meant purchasing practically the whole of the valley, and nearly all of the Parish property would be involved.  The delegates from the Public Health Committee proposed to give the area required, indicate the plant it was proposed to install there and ask the Parish to consider what price would be required for the disposal of the land and the plant at present in existence."

14.      After initially suggesting a price of £45,000 the Constable wrote to Senator Le Quesne on 24th April, 1951, proposing a sale for the sum of £25,000, subject to a number of conditions drafted by the Public Trustees of the Parish and the members of the Roads Committee, which can be seen form the basis of the Bellozanne covenants:-

"It has been decided that they would be prepared to recommend the Parish Assembly to sell the property in question to the States for the sum of Twenty-Five thousand pounds (£25,000), subject to the following conditions:-

1.     That the Public Health Department undertake to receive all refuse and scrap metals that are at present being received by this Parish;

2.     That the times of delivery to Bellozanne Destructor site shall be as at present, that is, from 8 a.m. to 5 p.m. for six days per week, and that all market offal, fish, etc. shall be received as at present, the hours of delivery varying from 6 to 8 p.m.

3.     That the Public Health Department absorb all men at present employed at the destructor;

4.     That all the necessary topsoil in the present Nursery be transferred to the new Parish Nursery at Bellozanne.

5.     That the necessary time lapse will be given to the Parish, on the taking over of the Bellozanne site, to enable us to establish our new Nursery."

15.      Senator Le Quesne responded on 8th May, 1951, agreeing to the conditions, but asking for the price to be reconsidered following a valuation that had been obtained on the Bellozanne land of £15,000. 

16.      An extract from the Evening Post of Wednesday, 25th July, 1951, shows that at a Parish meeting held the day before, it had been agreed to sell the land for £22,500.  Interestingly, the report shows Senator Le Gallais asking whether the Committee would "for all time accept all the refuse that the Parish can provide" to which the Constable is reported as responding, somewhat evasively, saying that "he felt that the Destructor would have to be kept for some time before they could go on with the new work".

17.      At that meeting, it was decided that there should be incorporated into the contract clauses necessary to safeguard persons residing in the vicinity to ensure as far as possible that there should be no offensive smells or unsanitary conditions detrimental to their interests.  The Parish secretary wrote to Advocate Le Masurier on 27th July, 1951, recommending a meeting, so that these conditions could be drafted for submission to the Parish Assembly.  Advocate Le Masurier responded on 31st July, 1951, saying that the Solicitor General saw no point in such a meeting as the residents could not be safeguarded by any terms which could be inserted in a contract as no person can claim the benefit of a contract made between third parties.  He agreed with the Solicitor General and pointed out that residents would be protected by the common law of the Island, which provides that no person may use his property in such a way as to cause a nuisance to his neighbours. 

18.      On 11th August, 1951, the Parish secretary wrote to Senator Le Quesne, saying that a special collection from hotels had been arranged since the conditions were first drafted and that the Parish therefore desired to add a further stipulation in that respect. 

19.      The conditions for inclusion in the 1952 contract were finally approved by a meeting of the Parish Assembly on 11th September, 1951, as follows:-

"1.       That the Public Health Department undertake to receive all refuse and scrap metals that are at present being received by this Parish;

2.        That the times of delivery to Bellozanne Destructor shall be as at present, that is, from, 8 a.m. to 5 p.m. for six days per week and that all market offal, fish, etc., shall be received as at present, the hours of delivery varying from 6 to 8 p.m.

3.        That the special collections from hotels during the summer months shall be received at the Destructor from 7 o'clock a.m. as occasion arises.

4.        That the Public Health Department absorb all men at present employed at the Destructor;

5.        That all the necessary topsoil in the present Nursery be transferred to the new Parish Nursery at Bellozanne;

6.        That the necessary time lapse will be given to the Parish, on the taking over of the Bellozanne site, to enable the new Nursery to be established."

20.      These are the conditions that were inserted into the 1952 contract as the Bellozanne covenants, save that the first condition appears to have been somewhat expanded. 

Subsequent history

21.      Following the 1952 contract, the operation of the destructors appears to have continued as before but under the ownership and operation of the Public and without any charge to the Parish.  They were dismantled in 1979 and replaced by a new incinerator plant built on another part of the Bellozanne land. 

22.      In 1994, the Parish sold Parcq de Bas to the Public for £25,875 ("the 1994 contract").  After the description of the land being sold, the boundaries and adjoining lands, and certain rights of way that went with the land and after the words "Le tout à fin d'héritage", the contract included the following:-

"ETANT TOUT spécialement convenu et accordé entre lesdites parties à savoir :- lesdits Connétable et Procureurs du Bien Public, Autorisés pour et au nom de ladite Paroisse de Saint Hélier, et pour ses successeurs ou ayant droit, et lesdits Autorisés pour et au nom dudit Public de cette Ile, et pour ses successeurs ou ayant droit, comme suit, savoir :-

QUE pour éviter aucun doute, les provisions des première et deuxième nouvelles clauses contenues audit contrat en date dudit jour trente-et-un Mai, mil neuf cent cinquante-deux, d'acquêt héréditaire par ledit Public de cette Ile de ladite Paroisse Venderesse, même resteront et demeureront en plein force et vigueur à fin d'héritage."

[It was specially covenanted and agreed between the said parties, namely:- the said Constable and Procureurs du Bien Public, authorised as aforesaid for and on behalf of the said Parish of St Helier and for its successors or having right, and the said authorised persons for and on behalf of the said Public of this Island and for its successors or having right, as follows, namely:-

THAT for the avoidance of any doubt, the provisions of the first and second new clauses contained in the said contract of the said day 31st May, 1952, of hereditary purchase by the said Public of this Island from the said Vendor Parish shall remain and shall stay in full force and vigour in perpetuity]."

We will refer to this as "the 1994 covenant". 

23.      Following the approval by the States of the "Solid Waste Strategy" under P.95/2005, a new Energy from Waste Plant or incinerator has been established at La Collette to replace the Bellozanne plant and that became operative on 17th January, 2011.  The old plant at the Bellozanne land was demolished in 2014.  Parish refuse ceased therefore to be taken to the Bellozanne land from January 2011.  The only facilities for solid waste now at the Bellozanne land are the chemical waste incinerator and the household re-cycling centre, both of which are to close and be relocated as part of the construction of a proposed new sewage treatment works at the Bellozanne land. 

24.      The proposed new sewage treatment works, which will cost an estimated £75M at 2012 prices, is required because the current plant is old, inefficient and failing, as recognised by the Waste Water Strategy approved by the States in 2014 (P.39/2014). 

Reason for the application

25.      The reason for the application is explained by John Rogers, Chief Officer of the Ministry for Infrastructure, in his affidavit of 11th February 2016 in this way:-

"10      Dealing with waste is an Island wide problem.  Resolution of that problem can only be effectively addressed as a community, working together.

11       Unless Jersey's waste is managed responsibly and to the highest standards, it will impact on the quality of our lives and the state of our environment.

12       At present the Minister provides the Island with a disposal service for domestic refuse with no charge to the Parishes.  This service is funded from the Minister's revenue budget; in essence it is funded through direct taxation.

13       The States aim is to have a balanced budget by 2019 and meet the demands of service provision.  A shortfall of some £145M has been identified in order to meet the funding requirements of the States programme of work to invest in health and education services while also boosting the economy to create jobs and encourage new business.

14       Part of the approach to bridging the funding gap is to introduce user pays charges for waste disposal.  This will be an administrative charge for the use of the facilities from time to time.  Introducing a waste charge is no more than an application of the polluter pays principle so that the costs fall and are shared fairly, and to encourage good practice and change behaviour in the production, treatment and disposal of waste.

15       Any new user pays charges for waste would require the Minister to bring a proposition to the States Assembly for approval.

16       The polluter pays principle ("PPP") was first mentioned in the recommendation of the Organisation for Economic Co-operation and Development's ("OECD") of 26th May 1972 and reaffirmed in the recommendation of 14th November 1974.  In 1992 in Rio PPP was laid down as Principle 16 of the UN declaration on Environment and Development.

17       As a main function of the principle the OECD recommendations specify the allocation "of costs of pollution prevention and control measures to encourage rational use of scarce environmental resources and to avoid distortions in international trade and investment".  The polluter should bear the expense of carrying out the measures "decided by public authorities to ensure that the environment is in an acceptable state".   (OECD 1972)

18       Principle 16 from the Rio Declaration is that National authorities should endeavour to promote internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest.

19       The preventive function of the PPP is based on the assumption that the polluter will reduce pollution as soon as the costs which he or she has to bear are higher than the benefits anticipated from continuing pollution.  As the costs for precautionary measures also have to be paid by the potential polluter, he or she has an incentive to reduce or modify behaviour.

20       There is a relationship that exists between the price of waste disposal and the demand for it.  If the price of disposing of waste is increased, there may be less waste being sent for disposal (whether to land fill or to the Energy From Waste plant).  If creators of the waste can reduce the amount they have to pay for disposal by reducing the amount of waste they create, or if they can reduce their own payments by treating their waste differently (for example, by taking out the recyclable material), a financial incentive is created to change their behaviour. 

21       At present there is no mechanism for incentivising reductions in the level of non-inert waste.  For such incentives to work, there needs to be a direct relationship between the level of waste produced by individual Jersey households and business and the waste disposal charges they face.

22       Such a relationship could be created directly, in the form of end-user disposal charges, or indirectly through the Parishes.  While potentially difficult to administer, direct waste disposal charges could be applied by requiring all waste to be disposed of in approved bags, with the levies on these bags being used to fund the recycling programme.  The likelihood of fly-tipping to avoid such a charge is a significant risk.

23       An alternative and better mechanism would be to introduce gate fees for waste disposal at the new EFW [Energy From Waste facility at La Collette].  While in the first instance it would be the Parishes that would incur the costs of these gate fees, this would provide an incentive for them to reduce levels of household and commercial waste arising.  The Parishes would, of course, have the ability to directly pass these costs through to Parishioners via the Parish rates."

26.      The Parish has taken and maintains the view that under the Bellozanne covenants it is entitled to have its refuse processed by the States free of charge in perpetuity.  As Mr Rogers says, if that is a correct interpretation of the Bellozanne covenants, then it would frustrate (in perpetuity) the introduction of charges for refuse disposal.  The Solicitor General explained that the matter was of some urgency. 

Jurisdiction to grant declaratory relief

27.      The Minister asks the Court to make the following declarations:-

(i)        that the 1952 contract did not require all refuse produced by the Parish to be processed free of charge in perpetuity;

(ii)       that reference in the 1952 contract is to the said destructors which do not exist anymore;

(iii)      that the "Bellozanne covenants" are spent and extinguished and that the Bellozanne land is free from such covenants, and

(iv)      that, subject to approval by the States, there is no impediment to the introduction of a charging scheme for solid waste disposal.

28.      The leading case under declaratory relief is In the matter of the curatorship of X [2002] JLR 259 in which the Court moved away from the more restrictive approach under English law that declaratory relief could only be given on those rights which were certain to come into effect - "future rights" - and not those which were merely possible - "hypothetical rights".  The Court approved the broader more flexible approach of the Scottish courts namely to consider whether there is a live practical question with practical consequences when deciding to exercise its discretion to grant declaratory relief. 

29.      The Court has little difficulty in finding that there is a live practical question with practical consequences justifying the granting of declaratory relief. 

Principles of construction

30.      In Trilogy Management v YT Charitable Foundation (International) Limited and Seven Others [2012] JCA 152, the Jersey Court of Appeal endorsed the principles applicable to the construction of documents generally as set out in the judgment of Page, Commissioner, in In re Internine Trust [2005] JLR 236 at paragraph 62:-

"The correct approach to the task before the court is to a large extent  the same as it is for any instrument the meaning of which is in contention:

(i)        the aim is to establish the presumed intention of the maker(s) of the document from the words used: in the present case, there being no settlor-signatory, the maker must be taken in each case to be the trustee - or possibly the trustee and Sheikh Abdullah as the parties to the letters of instruction which conferred authority on the trustees to execute the declarations of trust (it makes little difference which in the present case);

(ii)       words must, however, be construed against the background of the surrounding circumstances or 'matrix' of facts existing at the time when the document was executed - a principle that has been a bedrock of English law since the judgment of Lord Wilberforce in Prenn v Simmonds . . . and appears now to have been accepted as also properly reflecting the approach that this court should adopt in relation to such matters;

(iii)      the circumstances relevant and admissible for this purpose are those that must be taken to have been known to the maker at the time or, where there are more than one, known to the makers of or the parties to the document, and include (to use the language of Lord Hoffmann in Investors Compensation Scheme Ltd. v West Bromwich Bldg. Socy (2) [1998] 1 W.L.R. at 913), from whose speech only Lord Lloyd of Berwick dissented - ". . . absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man."

(iv)      evidence of subjective intention, drafts and negotiations and other matters extrinsic to the document in question is inadmissible, as is evidence of events subsequent to the making of the instrument (evidence of this kind being relevant where an estoppel is said to arise but not in this jurisdiction, unlike some others, as an aid to construing the original meaning of the document).

(v)       the critical provisions..... as with all words and phrases, have to be read in the context of the document as a whole;

(vi)      words should as far as possible be given their ordinary meaning: 'Loyalty to the text of a commercial contract, instrument, or document read in its contextual setting is the paramount principle of interpretation': per Lord Steyn in Society of Lloyd's v Robinson . . . ([1999) 1 W.L.R. at 763); and

(vii)     this last precept may, however, have to give way if consideration of the document as a whole, having regard to the principles set out above or common sense, points to a different conclusion: 'common sense' in this context being best reflected by the passage from the speech of Lord Reid in Schuler (L.) A.G. v Wickman Machine Tool Sales Ltd . . . ([1974] A.C. at 251) in which he observed:

'The fact that a particular construction leads to a very unreasonable result must be a relevant consideration.  The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear'

(See also Lord Steyn, again in Society of Lloyd's v Robinson ([1999] 1 W.L.R. AT 753) and Lord Hoffmann's observations in the Investors Compensation Scheme case . . . concerning the need, on occasion, for a court to accept that the parties must have used the wrong words or syntax.)"

31.      The Court of Appeal in Trilogy endorsed this summary of the above principles by Martin JA in La Petite Croatie Limited v Ledo [2009] JCA 221: -

"The aim is to establish the presumed intention of the parties from the words used; but the words used must be construed against the background of the surrounding circumstances, which means the circumstances that must be taken to have been known to the [parties] at the time.  These circumstances include anything that would have affected the way in which the language would have been understood by a reasonable man, except that evidence of subjective intention is ordinarily inadmissible.  The words must also be read in the context of the document as a whole, and should so far as possible be given their ordinary meaning; but a different meaning may have to be given to them if a reading of the document as a whole and common sense so require."

32.      The Court of Appeal in Trilogy added the following supplementary points (at paragraph 39) to the summary by Martin JA:-

"(i)      First, where parties have used unambiguous language the Court must apply it: (per Lord Clarke in Rainy Sky SAS at paragraph 23).  The Court cannot rewrite the language which the parties have used in order to make it conform to business common sense (per Hoffmann LJ in Co-operative Wholesale Society Ltd v National Westminster plc [1995] 1 EGLR 97, cited in Rainy Sky at paragraph 23).  Loyalty to the text of a commercial contract, instrument or document read in its contextual setting is the paramount principle of interpretation (per Lord Steyn in Society of Lloyd's v Robinson [1999] 1 WLR 756, cited in Rainy Sky SA at paragraph 25).

(ii)       Second, however, the Court should be astute to remember that, language being a flexible instrument, if the words used are capable of more than one construction that which appears most likely to give effect to the commercial purpose of the agreement should be chosen (per Hoffmann LJ in Co-operative Wholesale Society Ltd v National Westminster plc); the Court ought generally to favour a commercially sensible construction over technical interpretations and undue emphasis on niceties of language (per Lord Steyn in Society of Lloyd's v Robinson).  If therefore there are two possible constructions, the Court is entitled to prefer the construction which is consistent with business common sense and to reject the other: see Rainy Sky SA at paragraphs 21, 23 and 25."

33.      In relation to the judgment of Lord Clarke in Rainy Sky SA, Beloff, JA said this at paragraph 61 of Crociani v Crociani [2014] JLR 426:-

"It follows that whilst the starting point in construction of a document is always the language used, it is not the finishing line for, in a tie-break, purpose trumps phraseology.  In Rainy Sky SA v Kookmin Bank (27), Lord Clarke stated ([2011] 1 WLR 2900, at para. 21) that 'if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.'"

34.      The Court of Appeal in Trilogy went on to say this in relation to ambiguity:-

"Advocate Journeaux also submitted the cases where the Court is asked to depart from the natural meaning of the language used by the parties fall on a spectrum.  The clearer the language that the parties have used, the slower the Court should be to displace that meaning by reference to considerations of the commercial consequences.  He relied on the recent statement by Briggs J in the English High court in LB re Financing No 3 Ltd v Excalibur Funding No 1 Pic [2011] EWHC 2111 (Ch) at paragraph 46:-

'Commercial absurdity may require the court to depart even from the apparently unambiguous natural meaning of a provision in an instrument, because 'the law does not require judges to attribute to the parties an intention they plainly could not have had': see Lord Hoffmann in the ICS case at page 913.  Questions of commercial common sense falling short of absurdity may however enable the court to choose between genuinely alternative meanings of an ambiguous provision.  The greater the ambiguity, the more persuasive may be an argument based upon the apparently greater degree of common sense of one version over the other.'

We accept this submission (which Advocate Baker did not dispute) and have found it a helpful statement of the appropriate approach.    The corollary of the last sentence in the passage we have cited is that the less ambiguous the provision in question is, the less persuasive is an appeal to an argument that a different interpretation appears to make more commercial sense.  We agree."

35.      We would add to the above, as an exception to the rule that evidence of the parties' objective intentions is inadmissible, the ability of the Court to look to extrinsic evidence in a case of latent ambiguity (La Petite Croatie Limited v Ledo JCA at paragraph 19), an exercise to be approached with caution in relation to contracts passed before the Royal Court in order to maintain certainty and the integrity of the Registry.  Any such evidence must, in any event, be probative. 

36.      The Court of Appeal in Trilogy also raised a further point of principle which we think by analogy has some application here, namely that there are severe limits on the admissibility of surrounding circumstances in the construction of articles of association of an incorporated entity, with which the Court of Appeal was concerned in Trilogy.  Quoting from paragraph 41 of the judgment:-

"One other point of principle should be noted, although again it was not disputed before us.  In the construction of the articles of association of an incorporated entity there are severe limits on the admissibility of surrounding circumstances.  Evidence of surrounding circumstances is probably admissible only to the extent of identifying persons, places or other subject matter referred to in the articles; extrinsic evidence is not admissible for the purposes of implying a term based on business efficacy.  To allow reference to extrinsic circumstances for such a purpose would permit the notional possibility that different implications would arise between the company and different subscribers: see Bratton Seymour Service Co Limited v Ox borough [1992] BCLC 693, 698 (Steyn LJ as he then was) and 699 (Sir Christopher Slade).  That decision was in terms addressed to a question of implication, but the reasoning applies equally to construction of the express terms of the articles.  The essence of the reasoning is that the memorandum and articles of a company, once registered, constitute a statutory contract the terms of which are available to any member of the public, and as such cannot be affected by extrinsic matters known only to certain persons.  As it was put by Lord Hoffmann in delivering the opinion of the Privy Council in Attorney-General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 at paragraph 36:

'Because the articles are required to be registered, addressed to anyone who wishes to inspect them, the admissible background for the purposes of construction must be limited to what any reader would reasonably be supposed to know.  It cannot include extrinsic facts which were known only to some of the people involved in the formation of the company.'

The same principles apply to a Jersey company.  Under the Companies (Jersey) Law 1991 the memorandum and articles of a company are required to be registered (as are special resolutions), constitute a statutory contract between the company and its members, and are open to inspection by the public: see Articles 5, 10, 100 and 202 of the Law."

37.      It seems to us that the same point can be made in relation to contracts passed before the Royal Court, because once registered, such contracts form the basis upon which members of the public may in the future acquire, or take security over, the land concerned.  Such contracts should be interpreted by reference to the document as a whole and such facts as any reader researching title would reasonably be supposed to know. 

38.      In this case we are dealing with a contract passed between two public bodies, where minutes of meetings are available to the public, and which contract was discussed at public meetings reported in the press.  We think any reader might reasonably be expected to know this part of the background. 

39.      The Solicitor General placed reliance on Pothier's rules for the interpretation of agreements as referred to by the Royal Court in La Petite Croatie Limited v Ledo [2009] JLR 116 at paragraph 8 and in particular, the seventh rule:-

"Septième Règle

97       Dans le doute, une clause doit s'interpréter contre celui qui a stipulé quelque chose, et à la décharge de celui qui a contracté l'obligation."

40.      However, La Petite Croatie Limited v Ledo was concerned with a servitude and the Court of Appeal in Haas v Duquemin [2002] JLR 27 expressed caution (at paragraph 20) over the application of Pothier's rules to the interpretation of deeds setting out real rights which affect others than the initial parties to the deed.  In any event the rule was redundant in that case, because of the presumption in favour of the freedom of land, and the principle referred to below that any ambiguity in the wording of a servitude is to be interpreted in favour of the freedom of the servient tenement. 

41.      In this case and as we can see below, the parties are agreed that the Bellozanne covenants do not create a servitude and stand to be interpreted on ordinary contractual principles.  Pothier has always been treated by this Court as the surest guide to the Jersey law of contract (see Selby v Romeril [1996] JLR 210 at 218), but his rules of interpretation were not referred to in either the Royal Court decision in Internine or the Court of Appeal decisions in La Petite Croatie v Ledo and Trilogy, the Court of Appeal decisions being binding on this Court.  It would seem that this contra preferentum rule of interpretation has either been overlooked or as Advocate Williams suggested, it has been subsumed into the perhaps more nuanced approach to ambiguities which entitle the Court to prefer the construction which is consistent with business common sense. 

Servitudes

42.      In Colesberg, Southwell JA described a servitude in this way:-

"A servitude is a right in favour of a "dominant" piece of land or building (usually referred to as a 'tenement') over the land of an adjacent 'servient tenement'.  The servitudes which have most frequently led to disputes in the past include rights of way and rights to take or to discharge water.  When considering a particular problem concerning a particular servitude it is of some importance to keep in mind that a decision about, for example, a right of way must be consistent with the legal requirements relating to all servitudes under Jersey law.  It is also important that a servitude is only in favour of the relevant dominant tenement, and of no other tenement."

43.      Southwell JA went on to say at paragraph 3: -

"3       One main feature of the Jersey law of servitudes is that there is a presumption in favour of the freedom of land from excessive burdens of servitudes.  Where servitudes derive their titre from a contract or deed, the effect of this presumption is that in interpreting the words of the contract or deed, in so far as there is any ambiguity, the ambiguous words are to be interpreted in favour of the freedom of the servient tenement.  This presumption for freedom in relation to servitudes has recently been applied by this court in Haas (née Daniel) v Duquemin (3)."

44.      A number of further points can be made in relation to servitudes: -

(i)        A servitude cannot be exercised so as to increase or alter (aggravate) the burden on the servient tenement (Le Feuvre v Matthew [1974] JJ 49 at pages 62 and 63). 

(ii)       As servitudes derogate from the ability of the landowner to use his property, they are limited to what is precisely necessary for the use of the person who benefits from the servitude.  For this reason and because of the general requirement of contractual certainty, it is necessary that the dominant tenement, the servient tenement and the terms of the servitude should be capable of precise definition.  The owner of the servient tenement is entitled to know what he is able to do with his land (La Petite Croatie Limited v Ledo JCA at paragraph 12). 

(iii)      As Matthews and Nicolle say in the Jersey Law of Property at paragraph 1.38, an important feature to note is that a servitude is passive as regards the person whose property is subject to it; he is never required to take positive action (Pothier Oeuvre 1821 Ed. Term 17. Titre XIII and Merlin, Répertoire de Jurisprudence, Volume 31 (1828) Servitude).

(iv)      A servitude must be exercised civiliter in a way which minimises inconvenience to the owners of the servient tenement (Haas v Duquemin at paragraph 44).

(v)       As a servitude is a right which attaches to the dominant tenement, to be enjoyed by the owner from time to time, it cannot be alienated from the dominant tenement. 

45.      The makers of the 1952 contract purported to create a servitude in respect to the Bellozanne covenants in that they are stated as being binding upon their successors in title (leurs successeurs ou ayant droit) of the parties and in perpetuity (à fin d'héritage), but both counsel were agreed that they failed to do so for the following reasons, at least:-

(i)        Whilst the Parish retained Parcq de Bas and the road, which could theoretically constitute the dominant tenement, it cannot be said that the Bellozanne covenants, which dealt with the disposal of refuse created by the residents of the Parish, constitute rights which can be enjoyed by the owners of either the road or Parcq de Bas, as owners, or which benefits either piece of land in any way.  The disposal of the Parish refuse has nothing to do with either of them.  In any event Parcq de Bas was acquired by the public in 1994 and in 1997 the road became owned by the States following its classification as a main road.  Counsel agreed that there is no dominant tenement. 

(ii)       It was rightly conceded by Advocate Williams that all but the first part of clause 1 of the Bellozanne covenants could not have been intended to burden the land in perpetuity, namely the hours of incineration, receipt of waste from the public markets and hotels, the transfer of employees and the removal of the nursery. 

(iii)      Advocate Williams agreed that it was at least arguable that these clauses imposed a positive burden upon the public to incinerate and otherwise deal with all the refuse that would be deposited at the destructors by the Parish.  In our view they do create a positive obligation so to do.  We are not dealing here with the usual subject of a servitude such as a right of way, a right to draw water or a right to lay pipes and services-all of which are burdens which land can reasonably bear in perpetuity.  The Bellozanne covenants give the Parish the right to bring to the destructors the refuse of some 33,500 residents of St Helier and numerous businesses to be incinerated or left there.  Unless the Public dealt with that refuse, it would build up and up into an ever higher mountain of refuse causing a nuisance to the neighbouring properties and eventually overwhelming the Bellozanne land.  The suggestion that there is no positive burden is quite unsustainable.  The Public must have had a positive, and very costly, obligation to deal with the refuse. 

Construction of clauses

46.      Subject to the possibility of these clauses constituting a servitude personnelle or covenant, to which we will come in a moment, the case put to the Court was that these clauses created contractual obligations between the Public and the Parish, not binding on the Bellozanne land, which stood to be construed as such. 

47.      The Parish's case was that the Bellozanne covenants were clear.  They oblige the Public to accept all refuse emanating from the Parish in perpetuity and free of charge.  That is how the parties have conducted themselves since 1952, although their subsequent conduct cannot be taken into account in construing the meaning of the Bellozanne covenants (see paragraph (iv) of the principles set out in Internine Trust above). 

48.      Advocate Williams relied upon the first part of clause 1 of the Bellozanne covenants (in translation):-

"That the said public of this Island will be obliged to accept in the same way as did the 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 ..."

He made the following points:-

(i)        The language used did not support the proposition that the first part of the clause (that the public should be bound to accept rubbish just as the Parish had done before) was linked to the second part (which could be brought to the destructors to be incinerated or left), such that the obligation only subsisted as long as the destructors were in existence and it was possible to bring the rubbish to them.

(ii)       In this regard, he referred to the term "qui pourront" which the Parish had translated as "which could be" but which the Minister translated as "which may be".  Either way, the specific nature of the wording in both French and English is not crafted in a way which is compulsory and forward looking.  It is not expressed in terms that rubbish "shall be" or "must be" taken to the destructors.  It is permissive, and in that sense, the obligation on the Public to accept the rubbish is clearly not dependent or conditional upon the existence of the destructors. 

(iii)      The clause goes on to state "which could be taken to the said destructors forming part of the property now sold to be incinerated or left there", (his emphasis).  This is a reference to leaving rubbish at the Bellozanne land.  The later obligation to accept rubbish from the hotels is slightly different in its wording, which he said helps support that position: - "That the special deposits of rubbish coming from hotels during high season shall be accepted by the Public of this Island to be incinerated in the said destructors or to be left on the property now sold from 7 in the morning at all times whenever it shall be necessary" (his emphasis). Thus, he said, clearly any reference to leaving rubbish, is a reference to the Bellozanne land and not to the destructors.  It would be nonsensical if the clause were to be interpreted as meaning that the hotels and public markets could leave rubbish at the Bellozanne land regardless of whether the destructors were in existence but that the Parish was not able to do so.  

(iv)      The only potential ambiguity was that the Public were obliged to accept rubbish going forward just as the Parish had done previously, provided that the rubbish was of the type that previously would have been taken to Bellozanne for the purposes of incineration/disposal.  In other words, he said, the conditionality in the second part of the sentence relates to the type of rubbish that the public would be obliged to accept going forward - what previously would have been capable of incineration/disposal.  If there is ambiguity, he said, it favours the position of the Parish either way. 

(v)       The parties had agreed that the Bellozanne covenants were to bind their successors in title and the use of the phrase "Le tout à fin d'héritage" leaves little doubt that a reasonable person would understand that the overriding intention from the use of those words was to create open-ended obligations.  There were no temporal restrictions whatsoever, or indeed limitations to the life of the destructors.  In dealing with juristic persons, as opposed to natural ones, the obligation could potentially last for ever.  Whether the Court thinks that is commercially a poor decision on the part of the Public is not the issue.  If that is what the clause said, then that is what should be enforced. 

(vi)      The other conditions set out in the clauses should be understood in context and in circumstances where they are intended to protect parishioners.  The obvious intention was to avoid any increase in the hours of incineration/disposal to include anti-social times and to ensure that there were no redundancies.  This was not incongruous with the concept of a perpetual obligation to receive the Parish's refuse going forward. 

(vii)     The Parish was selling the Bellozanne land but would not have done so without safe-guarding its ability to continue to dispose of rubbish in the same way as it had before.  Any mirroring of the pre-contract position would involve an open-ended and free of charge ability to dispose of rubbish going forward.  A reasonable person would not have understood the Parish to be willing to give up its mechanism for disposing of its waste without a commitment from the purchaser that it would fulfil this need going forward. 

(viii)    The Parish had the Bellozanne land, which it was using for its own waste disposal purposes on an open-ended basis.  The demise of the destructors would not ultimately have rendered the Bellozanne land redundant as the place where the Parish delivers its waste.  Thus, absent the 1952 contract, the Bellozanne land would have remained the Parish's place for the disposal of waste - regardless of what plant or machinery existed on it.  The Parish was selling the Bellozanne land, for which a price was paid (£22,500).  However, it was also giving up for the benefit of the Island an open-ended right to use the Bellozanne land as the location for waste disposal.  The risk was self-evident; that the Public might cease to use Bellozanne land for rubbish disposal purposes and that centralised disposal might also be brought to an end, whereupon other parishes would be able to revert to their past practices.  However, the Parish would not be able to revert because it had sold the land and facilities.  It would therefore have to find an alternative site.  The obvious and simple solution, which would be clear to a reasonable person, was that the Public should agree to accept the Parish's refuse come what may in order to safeguard the Parish against the risk and potential prejudice flowing from the sale. 

(ix)      By contrast, there is nothing in the surrounding circumstances to suggest that this was a pro tem measure to maintain the status quo in the short term, nor that the existence of the Bellozanne covenants were tied to the life of the destructors. 

49.      The Court does not accept the construction placed upon the Bellozanne covenants by the Parish and agrees with the Public that there cannot have been an open-ended commitment.  Applying the principles of construction set out above, our reasons are as follows:-

(i)        It is a point of emphasis only, but the makers of the 1952 contract described the property being sold as "the Bellozanne Destructor Property comprising three destructors" and the land which was dependant thereon. 

(ii)       The first part of Clause 1 does tie the obligation to accept refuse to the place where it is to be taken, namely to "the said destructors" in order to be incinerated or left there - it is not a right to bring the refuse to the Bellozanne land generally.  Stripping the provision to its essentials, it reads "that the said Public .... will be obliged to accept .... [the refuse]... which may be brought to the said destructors ... in order to be incinerated or left there ..."  Whether "qui pourront" is to be translated as meaning "which could be" or "which may be" (and we prefer the latter), the right granted is to bring the refuse to "the said destructors" (i.e. to the three destructors that were being sold) and not to the land generally. 

(iii)      The obligation is to accept the refuse "in the same way as did the Parish before", an important provision as it defines and limits the burden upon the Public, but no indication is given as to the practice of the Parish before-what did the Parish do before?  Clearly the makers knew what the practice was, but the fact that it is not spelt out shows that they had a limited time horizon.  For this obligation to endure in perpetuity, it would be essential to have that practice clearly set out, failing which the obligation would become unenforceable over time through lack of certainty. 

(iv)      The phrase "à fin d'héritage" which follows the Bellozanne covenants, is the standard phrase used in every contract for the sale of property which is intended to pass freehold title.  As Richard Falle says in his article, The Structure of a Pro Forma Jersey Conveyance (the Jersey Law Review 2004), at paragraph 17:-

"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.  The word propriété may mean both ownership and the land owned, although it is often qualified with the adjective foncière to indicate unequivocally that the rights concern immoveables only."

(v)       A similar point is made by Paul Matthews and Stéphanie Nicolle in The Jersey Law of Property (published in 1991) at paragraph 1.15: -

"1.15   The ownership of land may be enjoyed by a single person as sole owner, or by two or more persons as co-owners.  In either case, ownership of an immovable may be subject to the enjoyment for life ("usufruit") by another person, or several persons successively.  An usufruit is not however, an estate or interest in the land but a burden upon it.  Co-ownership and usufruits will be discussed below but there is first the question of estates in the land.  Apart from contract leases for longer than nine years, the most common estate is that "à fin d'héritage" (i.e., in perpetuity) which corresponds to the English fee simple absolute (popularly known as freehold). ..."(authors' emphasis)

The phrase was therefore employed by the makers to indicate that the Parish were selling to the Public the freehold of the Bellozanne land.  Advocate Williams accepts that all but the first part of clause 1 of the Bellozanne covenants could not have been intended to endure in perpetuity.  At the hearing, we tended to refer to the translation prepared by the Public, which had separated out clause 1 as if it comprised 3 separate and independent stipulations, but grammatically it is one clause which contains within it provisions which clearly were not intended to endure in perpetuity (the precise hours of incineration and for the acceptance of waste from the public markets).  This does, in our view, detract from the assertion that the first part of that clause only was intended to endure in perpetuity, but not the rest. 

(vi)      If the first part of clause 1 of the Bellozanne covenants had been intended to endure in perpetuity, it would need to provide for the period after the life of "the said destructors", because the obligation is tied to the particular destructors which were the subject of the sale, presumably by imposing an obligation on the Public to replace the same, so that refuse could continue to be brought to those replacements for incineration; that assumes of course that incineration would be the preferred method in perpetuity.  The makers assumed that incineration was the method of disposal to be used because they were dealing with a sale of the existing destructors which used that method.  In our view, it is clear that the makers did not look beyond the life of the existing destructors, which were the subject of the sale. 

(vii)     The first part of clause 1 of the Bellozanne covenant is silent as to duration and there is therefore ambiguity as to its intended duration (we deal later with whether that ambiguity is latent), which under the ordinary rules of construction permits the Court to prefer that which is consistent with business common sense. 

Advocate Williams argued that the Parish had the commercial upper hand and potentially greater bargaining power.  Working from the minutes of the Roads Committee of 29th August, 1950, there were only two possible locations where the new sewage plant could be located, and thus the Parish was in a position to demand and there was a commercial imperative on the Public to agree concessions that were favourable to the Parish.  There was no concept in those days of "user pays" and the Public may not therefore have been conceding much by agreeing to accept the Parish's refuse free of charge in the long term.  Furthermore, the Parish was giving up its rubbish disposal facilities and in the event that the new centralised waste disposal was not a success, there was no fallback option for the Parish and it made commercial and business sense to preserve the position going forward.  

In the view of the Court, business common sense would militate against the Public agreeing to provide one parish with a substantial service free of charge in perpetuity.  The cost of providing that service would rise inexorably year by year ad infinitum.  The "net present costs" as at 1952 of agreeing to provide such a free service in perpetuity would have been very substantial and in business terms warrant a substantial payment by the Parish to the Public.  As it was the Parish received a consideration for the Bellozanne land that, using the UK Inflation Calculator as a guide, would equate today to some £600,000, together with the free disposal of its refuse for the lifetime of the destructors it was selling. 

50.      In essence, we see the Bellozanne covenants as being anchored firmly in the then existing three destructors and the operational arrangements which were to be maintained after their acquisition by the Public.  The makers were concerned that the then existing operations should continue using the existing destructors with precise arrangements as to hours and so on, but they did not address what should happen after the lifespan of those destructors.  The very clearest words would be required to oblige the Public to continue providing such a service from this specific piece of land using that specific method in perpetuity, a notion which in business terms makes no sense and in our view, comes close to being absurd. 

51.      Quoting from Pothier's Traité des Obligations Ch VII Art 1 at 671:-

"47     Régulièrement le temps n'éteint point les obligations; ceux qui s'obligent, s'obligent à perpétuité, eux les héritiers, jusqu'au accomplissement de leur obligation."

[Regularly lapse of time does not extinguish obligations; persons who enter into an obligation oblige themselves and their heirs until the obligation is perfectly accomplished.]

52.      In our view, the obligation was perfectly accomplished once the destructors had reached the end of their useful life and were demolished in 1979.  At that point the objet became éteint.  If there was no objet, there is no enforceable contract-  Selby v Romeril at 219 per Bailhache, Bailiff:-

"In essence, the objet of a contract (or more precisely the obligation which the contract creates) is the content of what the party undertakes.  As to the content of the undertaking, it is the rule that it must be sufficiently certain.  Pothier (op. cit;, Part 1, Chapter 1, para. 137 at 59) states: 'pour qu'un fait puisse être l'objet d'une obligation, il faut aussi que ce que le débiteur s'est obligé de faire, soit quelque chose de déterminé."

53.      Pothier is clear that the destruction of the objet will bring the obligation to an end:-

"49.  Il ne peut y avoir de dette, sans qu'il y ait quelque chose de dû, qui soit la matière et l'objet de l'obligation ; d'où il suit que lorsque la chose qui étoit due vient à périr, ne restant plus rien qui soit l'objet et la matière de l'obligation, il ne peut plus y avoir d'obligation.  L'extinction de la chose due emporte donc nécessairement l'extinction de l'obligation"

[There cannot be any debt without something being due, which forms the matter and object of the obligation ; whence it follows, that if that thing is destroyed, as there is no longer anything to form the matter and object of the obligation, there can be no longer any obligation.  The extinction of the thing due, therefore, necessarily brings about the extinction of the obligation.]

54.      We do not think the character of legal perpetuity attaching to the legal personality of the contracting parties in this case is a sufficient reason for regarding the contract as permanent.  Quoting from the judgment of Russell J in Crediton Gas Co v Crediton UDC [1928] Ch 174 (affd [1928] Ch 447, CA), at 178:-

"It is true that the character of perpetuity attaches to the legal personality of each of the contracting parties, one being a statutory company and the other a public authority; but it is impossible in these days when limited liability is the general rule to say that for that reason a contract, indefinite in point of time, by which a gas company secured a customer on particular terms, was intended to be permanent."

55.      We conclude that the operational arrangements were to endure for so long as the destructors themselves were operational and ceased when those destructors were dismantled in 1979, at which point all of the obligations under the Bellozanne covenants ceased to be of effect. 

Latent ambiguity and extrinsic evidence

56.      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 were to continue.  The ambiguity over duration has arisen over time, and we agree with Advocate Williams that it is latent in this respect, allowing us to have regard to extrinsic evidence as to the intentions of the parties that is of probative value, but subject always to the caution expressed in La Petite Croatie v Ledo and Trilogy in relation to contracts passed before the Court.  

57.      We agree with Advocate Williams that the correspondence and minutes show that it was intended that the Public would accept the refuse from the Parish without charge and we think this could be implied simply from the Bellozanne covenants themselves.  Advocate Williams argues that this evidence also supports the Parish's contention that the obligation to receive the refuse was to endure in perpetuity, in the main because, as he rightly says, nowhere is there a reference to a temporal limitation, with all of the discussions being couched in open ended terms.  In fact, the only evidence of anyone raising the issue of the duration of the obligation is the question posed by Deputy Le Gallais (see paragraph 16 above), to which he received an evasive answer, but an answer all the same that did refer to the existing destructors. 

58.      In our judgment the extrinsic evidence demonstrates that no one involved in the negotiations put their mind beyond the continuing of the then current operational arrangements.  It is significant that the clauses were first drafted by the Parish (before being lifted into the contract of conveyance and inserted before the words "Le tout à fin d'héritage") and there was no inclusion of the words "in perpetuity" or equivalent (see paragraphs 14 and 19 above).  Thus, as originally drafted, the words "Le tout à fin d'héritage" or the equivalent upon which the Parish relies so heavily, were absent.  The first condition was quite simply that the Public Health Committee undertook to receive the refuse which was then being received by the Parish.  All of the conditions were concerned with the operational arrangements then prevailing.  No one addressed the question of how long these arrangements should continue, let alone whether they should continue in perpetuity.  In our view, the extrinsic evidence supports the construction we have placed upon the Bellozanne covenants. 

Servitude Personnelle

59.      The Jersey Law of Property makes reference at paragraph 1.38 to servitudes as being either personal or real:-

"A right of servitude is a right (i) to make use of the property of another, or (ii) to prevent the owner of the property from making certain use of it (Pothier Oeuvres, 1821 ed., Tome 17, Titre XIII, Des Servitudes Réelles, Art 1, para 1, page 216).  The important feature to note is that a servitude is passive as regards the person whose property is subject to it; he is never required to take positive action.  Servitudes extend wider than easements in English law, and include what English lawyers know as 'profits'.  And, also unlike the English law of easements, a servitude  may be either personal or real, i.e., may belong either to a person entitled to exercise the right, independent of the ownership by him of any property ('servitude personnelle') or real, when the servitude is one to which a property ('the servient tenement') is subjected, to the benefit of the adjoining property ('the dominant tenement') being the property to which the servitude is attached (see Arbaugh v Leyland (1967) 1 JJ 745, cited in Sayers v Duchemin unreported, 12 February 1985 and 24 September 1985 (though noted in 1985-86 JLR N-15 on another point)."

Arbaugh v Leyland and Sayers v Duchemin were concerned with servitudes réelles and are authority for the proposition that in certain circumstances movables can infringe a servitude réelle.

60.      The Court posed the question of whether it might be argued that the obligation created by the Bellozanne covenants in this case constituted a servitude personnelle in favour of the Parish, independent of the ownership by it of any property, but binding upon the Bellozanne land.  The authority for the proposition in The Jersey Law of Property that under Jersey law, servitudes can be either real or personal is taken from Pothier Oeuvres 1821 ed. Tome 17 Titre XIII Des Servitudes Réelles Art 1 Para. 2 where he says:-

"Il y a deux principales espèces de servitudes; les personnelles et les réelles.  Les droits de servitudes personnelles sont ceux qui sont attachés à la personne à qui la servitude est due, et pour l'utilité de laquelle elle a été constituée, et finissent par conséquent avec elle."

[There are two principal kinds of servitude; the personal and the real.  The rights of personal servitudes are those attached to the person to whom the servitude is due, and the usefulness of which it was made, and therefore ends with them.]

The chapter is concerned with servitudes réelles and so nothing further is said about servitudes personnelles.

61.       In his Répertoire de Jurisprudence under Servitude s 1. De la nature des servitudes 1, 1828 ed. Page 47 and Des Servitudes personnelles ou plutôt mixtes,  Merlin refers back to Roman law which recognised three sorts of personal servitudes, namely l'usufruit, l'usage et l'habitation, which he regarded as obligations as opposed to personal servitudes, and having explored the difficulty in distinguishing between real and personal servitudes, he says at page 49:-

"On se gardera bien, à plus forte raison, de proposer ici les règles nombreuses que Caepolla et les autres auteurs qui ont suivi le droit romain, ont imaginées pour distinguer les conventions qui établissent une Servitude réelle, d'avec celles qui donnent seulement un droit personnelle à l'un des contractans.  Plusieurs de ces règles ne sont point exactes ; d'autres ne sont d'aucune utilité dans l'usage, parce qu'elles ne peuvent pas prévoir tous les cas.  Le principe qui doit servir à décider ces questions, est de rechercher dans l'intention des parties, si le titre de concession parait avoir pour objet la personne seule, ou le fonds voisin.  Dans le doute, on doit se décider en faveur de la liberté, suivant les règles générales qu'on suit pour l'interprétation des conventions."

[One would do well, for very good reasons, to suggest here a number of rules which Caepolla and other authors who have followed Roman Law have devised in order to distinguish the covenants (agreements) which establish a real servitude from those which only grant a personal right to one of the contractors.  Several of these rules are not correct: others are of no benefit in usage because all cases cannot be predicted.  The principle which must be used to decide these questions is to research the intention of the parties, if the title to the concession may have as its object the person solely or the neighbouring tenement.  In cases of doubt one must decide in favour of liberty, following the general rules for the interpretation of covenants. 

He went on to say, at page 49:-

"Pour prévenir toute équivoque, le Code civil ne donne le nom de Servitudes même personnelles ou mixtes, ni à l'usufruit, ni à  l'usage, ni à l'habitation. V. l'article Service foncier."

[In order to foresee all ambiguities the Civil Code does not give the same name of personal or mixed servitudes either to life-enjoyment or to usage or to habitation.]

62.      Article 686 of the Code Civil is very clear:-

"Article 686

Crée par Loi 1804-01-31 promulguée le 10 février 1804

Il est permis aux propriétaires d'établir sur leurs propriété, ou en faveur de leurs propriétés, telles servitudes que bon leur semble, pourvu néanmoins que les services établis ne soient imposés ni à la personne, ni en faveur de la personne, mais seulement à un fonds et pour un fonds, et pourvu que ces services n'aient d'ailleurs rien de contraire à l'ordre public."

[It is permitted to owners to establish on their properties, or in favour of their properties, such servitudes as they deem fit, provided [none the less] that the services established shall not be imposed either on a person or in favour of a person, but only on a tenement and for a tenement and provided furthermore that these services contain nothing which is contrary to public order].

63.      Accordingly, Pardessus in his Traité des Servitudes (8th Edition, 1834) Part 1, Ch 1, s 1 paragraph 5(2) said this on the essential character of a servitude:-

"Elles sont imposes sur des héritages, leur seul objet étant de restreindre la liberté naturelle d'un fonds, sans imposer aucune obligation personnelle à celui qui en est propriétaire ou possesseur, ce qui les distingue des dettes, même hypothécaires, ou des redevances foncières."

[They are imposed on realty, their sole object being to restrict the natural freedom of a 'fonds' without imposing any personal obligation to him who is owner or possessor as distinguished from debts, similarly mortgages or property debts.]

64.      He goes on to say at paragraph 10: -

"Les servitudes sont des charges imposées sur des fonds au profit d'autres fonds (1), et comme on l'a vu n. 9, les propriétaires ou possesseurs de ces fonds ne sont considérés que secondairement.  Quoiqu'en général la liberté des conventions n'ait d'autres limites que l'obligation de ne pas violer les lois prohibitives, fondées sur l'intérêt de l'ordre public et des bonnes mœurs, cette liberté ne s'étend pas, ainsi que le déclare expressément l'article 686 du code, jusqu'à pouvoir constituer sous le nom et avec les effets des servitudes, des services qui se voient exclusivement en faveur des personnes."

[The servitudes are obligations imposed on the 'fonds' to the advantage of other fonds (1) and as has been seen in 9, the owners or possessors of these 'fonds' are only considered secondary.  Although in general the scope of covenants has no limits other than the obligation not to infringe prohibitions, founded on the interest of public order and good custom, that liberty is not extended, as is expressly declared in article 686 of the Code, so as to be able to constitute under the name and with the effect of servitudes, services which would be exclusively in favour of persons.]

65.      He goes on to explain: -

"On ne peut donc en général mettre au rang des servitudes, le droit de jouir d'un immeuble dont la propriété appartient à un autre.  Il est bien vrai que l'exercice de ce droit présente un des caractères essentiels aux servitudes, d'être une charge imposée sur un fonds, mais il ne l'est point en faveur d'un fonds ; c'est à la personne qu'il est accordé, et la jouissance qui en résulte est limitée à un intérêt individuel.  On donne à ce droit, selon son objet et son importance, les noms d'usufruit, d'habitation, d'usage."

[One would therefore not be able to place in the rank of servitudes the right to enjoy a hereditament of which the ownership belongs to another.  It is true that the exercise of this right presents one of the essential characteristics of servitudes, to be an obligation imposed on a fonds, but it is not in favour of a fonds; it is in favour of the person to whom it is granted and the enjoyment which results is limited to an individual interest.  One gives to this right, according to its object and its importance, the names of usufruct, habitation and usage].

66.      In La Petite Croatie v Ledo at paragraph 35 the Royal Court cited a passage from Domat writing (in 1703) on the civil law, from which servitudes are an import, and he too defines a servitude as an obligation imposed on land for the benefit of other land and taking all of these influences upon Jersey law into account, we conclude that under Jersey law a servitude is as defined by the Court of Appeal in Colesberg and that there is today, whatever the position historically, no division between a servitude réelle and a servitude personnelle; no such division was made by the Court of Appeal in Colesberg.  

67.      Accordingly, it is a misnomer to describe other rights that may be established over land as a servitude personnelle or as Pardessus says to place such other rights in the rank of servitudes. 

68.      Advocate Williams submits that as a general proposition it is also possible to burden land by way of a covenant created by contract passed before the Court.  One has to be careful of terminology here, as the word "servitude" and "covenant" have been used interchangeably in this jurisdiction.  As McNeill JA said in Gale and Clarke v Rockhampton Apartments Limited [2007] JLR 332 at 357:-

"In my view it is pertinent to recollect that different lawyers may adopt difference classifications and for different purposes.  Some commentators, such as Le Gros might feel it unnecessary to adopt a system of classification at all."

The Royal Court, in La Petite Croatie v Ledo used the term restrictive covenant to describe what was analysed as a servitude and the Court of Appeal in the same case referred to it as a servitude in the nature of a restrictive covenant.  A covenant is nothing more than a mutual agreement, in this context contained within a contract passed before the Court, and it is necessary to look at the substance of it. 

69.      Drawing from the Institute of Law study guide on the Law of Immovable Property by Anderson (the first two editions being by Stéphanie Nicolle) ("the Study Guide"), Advocate Williams submitted that servitudes and covenants burdening land differed in the following ways:-

(i)        Only a servitude can be implied under the doctrine of destination de père de famille, (Fogarty v St Martin's Cottage Limited [2015] (1) JLR 356 and Le Feuvre v Matthew [1973] JJ 3461).

(ii)       Covenants may impose positive obligations whereas servitudes cannot. 

(iii)      Covenants do not need an identifiable dominant tenement, whereas servitudes do. 

(iv)      Covenants can include building schemes which have particular requirements. 

(v)       Servitudes are subject to the rule that land should be free from excessive burdens, whereas covenants are not. 

70.      For the general proposition that it is possible to burden land by way of a covenant, Advocate Williams placed some reliance, as does the Study Guide, on the case of Ex Parte Schools Trust (Jersey) Limited [1935] 12 Cr 361 the brief report of which reads as follows:-

"CONVENTIONS - Ayant Droit Liés

Clause dans un contrat de prise d'héritages imposant certaines obligations et restrictions pas restreinte à la Société preneuse seulement mais lie ses ayant droit aussi.  Il n'est pas loisible à ladite société d'aliéner la propriété (école) franche et quitte de restrictions eu égard à l'instruction religieuse."

[Clause in a contract of purchase of realty imposing certain obligations and restrictions does not limit the Purchasing Company solely but binds successors in title also.  It is not permissible to the company to alienate the property (school) free and quit of restrictions with regard to religious instruction].

71.      The Court was provided with a copy of the contract passed before the Court on 15th September, 1928, which was the subject of that decision and by which the liquidators of Jersey Ladies' College Company Limited sold to the Schools Trust (Jersey) Limited the land and building called the Jersey Ladies College, which comprised two corps de bien fonds.  Having dealt in the first and second parts of the contract with the sale of the two corps de bien fonds, the third part of the contract goes on to deal with the sale of all of the mobiliary effects situated in the school - it was effectively a sale of the school as a going concern.  That third part of the contract contains the following provisions:-

"Etant de plus stipule, convenu et arrêté contre les parties comme suit :-

1         Que les conditions suivantes relatives à la gérance et à l'administration de Collège seront observées par la Société Preneuse et Acquéreuse.

(a)       Que l'établissement "Jersey Ladies' College" continuera d'être une école secondaire pour jeunes filles, et qui sera pas exploité commercialement et sera administré selon les principes Evangélique de l'Eglise Anglicane.

(b)       Que l'instruction religieuse y sera donnée d'après les susdits principes et ayant     égard aux convictions religieuses individuelles des parents et élèves.  Il ne sera sous aucun empêchement ou entrave à l'admission d'une élève en raison de ses croyances religieuses.

(c)       Que l'émission précité des obligations dites ('Debenture Bonds') (second series) sera remboursable au moyen de tirages annuels d'un montant total qui ne sera pas moindre de cinq cents livres Sterling et commençant au plus tard le premier septembre, mil neuf cent trente trois mais il sera facultatif à la Société Preneuse et Acquéreuse de la rembourser en tout ou en partie en aucun temps en donnant trois mois d'avis à cet effet.

(d)       Que ladite Société Preneuse et Acquéreuse respectera et maintiendra tous engagements avec le personnel enseignant et avec les domestiques et autres employés et tous contrats, accords de bourses d'enseignement eu rapport avec ledit Collège, la Société Jersey Ladies College Company Limited étant déchargée de toute responsabilité à cet égard après le premier septembre mil neuf cent vingt-huit."

[It being further stipulated, covenanted and agreed between the said parties as follows: -

1         That the following conditions relating to the management and the administration of the   college shall be observed by the Purchaser Company.

That the establishment "Jersey Ladies College" shall continue to be a secondary school for young girls and shall not be commercially exploited and shall be administered according to the evangelical principles of the Anglican Church;

That religious instruction shall be given therein according to the above-mentioned principles and having regard to the individual religious convictions of the parents and the pupils.  That there will never be placed any obstacles or hindrance to the admission of a pupil by reason of her religious beliefs;

That the aforesaid discharge of the terms of the "Debenture Bonds" (second series) shall be reimbursed by means of annual payments of a total amount which shall not be less than Five Hundred Pounds Sterling commencing no later than 1st September 1933, but the Purchaser Company may make reimbursement of all or any part at any time on giving three months' notice to that effect;

That the Purchaser company shall honour all agreements with the teaching staff, and with the domestics and other employees and all contracts relating to educational bursaries made with the said "Jersey Ladies College Company Limited" and "Jersey Ladies College Company Limited" shall be discharged from all responsibilities in that regard after 1st September 1928].

72.      The following points can be made working from the contract:-

(i)        These covenants were not expressed as being binding on the parties' successors in title.  They constitute an agreement between the purchaser and the vendors personally as to the management and administration of the school that was being sold as a going concern. 

(ii)       There was no dominant tenement retained by the vendors and therefore no question of a servitude being created.  

(iii)      These covenants did not purport to bind the property being sold. 

73.      It follows that the purchaser of the property would have been free to sell it unencumbered by these obligations and move the school on to new premises, but it would still have been bound personally to the vendors by contract, for example to continue administering the school according to the evangelical principles of the Anglican Church.  These personal covenants would have ceased to be enforceable by the vendors upon the dissolution of the vendor company.  It is impossible to know from the brief report what evidence and authority was before the Court, but working from the contract itself we can say that Court was in error in finding that these obligations and restrictions were not limited to the purchaser solely, but bound successors in title and that it was not permissible for the purchaser to alienate the property free and quit of restrictions with regard to religious instruction. 

74.      In our view the most that can be derived from the Schools Trust case is that, for reasons which were not disclosed, the Court saw no impediment under the law then prevailing to the creation of a covenant that bound the property in favour of no identifiable dominant tenement. 

75.      In order to resolve the problem created by this decision, which has been the subject of some criticism, and to allow the land to be sold freed of the restriction in relation to religious instruction, the States passed the Loi (1936) autorisant la Vente des Immeubles appartenant à la Société à Responsabilité Limitée dit "Schools Trust (Jersey) Limited".  The land was sold by Schools Trust (Jersey) Limited to the Public by contract passed on the 1st February, 1936, and the remaining covenants were removed by the Jersey College For Girls (Removal of Covenants from Former Site) (Jersey) Law 2006; the report prepared for that law noted that there were doubts as to whether the School Trust case had been correctly decided, but the law was needed to put the matter beyond doubt. 

76.      Advocate Williams provided the Court with the draft La Motte School (Validation and Abrogation of Covenants) (Jersey) Law 201- which was lodged au Greffe on 17th February, 2016.  That concerns a covenant created in 1840 restricting the use of the land to that of a school, which by its express terms (which are set out in the draft law) purported to bind the land concerned in perpetuity.  We have not looked at the contracts passed in this case, but the implication is that these covenants were created in favour of individuals, without reference to a dominant tenement, who have long since died and whose heirs cannot be found.  This might therefore be an example of a restrictive covenant which purported to bind the land at least during the life of the individuals in whose favour it was created.  Whether or not that is the case the report within the draft law concludes, and, whilst it is a matter for the States Assembly, in principle we would agree, that the individuals concerned in whose favour it was created being long since dead, the two covenants are now no longer enforceable.  They remain, of course, in the contract for anyone researching title to find and in principle we can appreciate the necessity of having them formally removed, which would require either a declaration by the Court or the passing of this proposed Law, the latter having the added benefit of being able to confirm, as it does, that the site has been lawfully used to date for other purposes.  However, we stress that the proposed draft Law is entirely a matter for debate and decision by the States Assembly. 

77.      A further example might be Jersey Hotels Limited v Inglebert Properties Limited (1980) JJ 23.  In that case, the appellant, Jersey Hotels Limited, sold all the land concerned (comprising a hotel and a field) with the provision that if the field was developed, it would receive a payment in respect of each house.  The hotel and field were then sold on, the field ultimately to the respondent, Inglebert Properties Limited, without this provision being repeated in the contract. 

78.      The Court held that it was not appropriate for the conveyance of the field to be injuncted as a validly imposed covenant will continue to bind successors in title to the original contracting parties, even though the covenant is omitted from later contracts. 

79.      It was asserted by the appellant, and apparently accepted by the respondent, that the burden of this covenant (there was no question of it constituting a servitude) passed with the land, and therefore bound the respondent (who had never contracted with the appellant), as the successor in title, to the appellant personally.  The Court of Appeal made no findings in that respect:-

"The Appellants claim that the provision in question created a real obligation, that is to say an obligation or burden which runs with the lands so as to bind each successive owner of the lands to pay in accordance with the terms of the provision.....

But if the burden is in that sense a real one, it seems to us that an injunction against a conveyance of the Field is inappropriate.  If the present proprietor and every successor to the title is bound by the obligation in any event, then the appellant's rights are in no way prejudiced and they have no ground for objecting to a disposal.  Conversely, if the obligation is only a personal one relating to the original contracting parties and not attaching to the lands, then the appellants have no right or title to prevent a conveyance of the Field by the respondents."

80.      The Study Guide at paragraph 10.110-114 gives examples of other contracts which have purported to burden land for the benefit of no identifiable dominant tenement.  It also refers at paragraph 10.108 to a one paragraph judgement of Le Masurier, Bailiff, in Johnson v Summers [1971] JJ 1889 in which he expressed the gravest doubt that a restriction that a plot of land sold would only be used as a garden and nothing would be erected on it, could amount to a servitude, but it was unnecessary for the Court to determine the point.  The Study Guide speculates that he meant no more than that this was a restrictive covenant, not a servitude. 

81.      The Solicitor General submits that in the light of the absence of reasoned authority, it can be said that under Jersey law only servitudes or statute can burden land.  Equally, he says, there is no reasoned authority to support the proposition that covenants binding land can include positive obligations whereas servitudes cannot.  In terms of statute, Article 2 of the National Trust for Jersey Law 1984 confers power upon the National Trust for Jersey to enter into binding agreements by means of a registered contract which is binding on successors in title as if it were a servitude.  If it were possible to bind land by covenant, there would, he said, be no need to enact this legislation.  Under Article 25 of the Planning and Building (Jersey) Law 2002 planning obligations are enforceable against successors in title.  Drains and water mains can be laid across private land under Article 10 of the Drainage (Jersey) Law 2005 and Article 3 of the Water (Jersey) Law 1972.  The Jersey Law of Property at paragraph 1.45 presumes such rights amount to servitudes personelles, although as the Solicitor General says such rights derive from the relevant statute. 

82.      The Solicitor General, whilst accepting that Jersey property law is different from English property law, drew our attention to the House of Lords decision in Rhone v Stephens [1994] 2 AC 310, which confirmed that positive covenants were not enforceable against successors in title, because at common law a person cannot be made liable upon a contract unless he was a party to it, a principle which he said, and we accept, is consistent with Jersey contract law.  The rigours of the common law had been relaxed by doctrines now contained in sections 141 and 142 of the Law of Property Act 1925, so that as between landlord and tenant (with which that case was concerned) both the benefit and burden of a covenant runs with the reversion and the term at law whether the covenant be positive or restrictive. 

83.      Building schemes, the Solicitor General submitted, have been analysed by the Courts on the basis that they constitute servitudes (La Petite Croatie v Ledo and Harris v Mont Gras d'Eau Investments Limited [1980] JJ at 193 - 195 and see also Cotillard v O'Connor [2007] JRC 005 which would appear to have involved a building scheme). 

84.      The proposition that covenants, unlike servitudes, are not subject to the rule that land should be free from excessive burdens would drive a coach and horses, he said, through a fundamental principle of Jersey property law as a device to pass on positive obligations, which are the antithesis to the formation of subordinate real rights by way of servitude.  Only a validly created servitude is capable of burdening the land. 

85.      The Solicitor General accepted that Jersey law has been developed to allow land to be burdened other than through a servitude in at least two cases:-

(i)        A contract passed before the Court creating a usufruit for the life of the usufruitier will bind the nu-propriétaire and his successor in title.  To the extent that it does not constitute an estate in land (which would appear to be the position under English and French law), a usufruit is a burden upon the land which runs with the land for the duration of the usufruitier's life.  Jersey law divides responsibility for repairs between the usufruitier and the nu-propriétaire (see Jersey Law of Property at paragraph 1.24) but we see no reason why the nu-propriétaire granting the usufruit could not agree to positive contractual obligations in that respect which would bind his or her successor in title.  

(ii)       A lease equally constitutes a burden on the land which binds the lessor's successors in title (see Basden Hotels and Dormy Hotels [1968](1) JJ 911).  Furthermore, most leases will contain positive obligations on the part of the lessor. 

86.      The Study Guide makes reference at paragraph 10.5 to another obligation imposed in favour of individuals namely les obligations de faire ou de ne pas faire, upon which we have not invited any submissions from counsel, but accepting that there may be other specific cases where it can be demonstrated that Jersey law has or should be developed to allow land to be burdened other through a servitude, we are concerned here with the general proposition that Jersey law has developed to allow land to be burdened by covenant, in particular positive covenants, as well as by servitude.  

87.      It seems to us incongruous that Jersey law should on the one hand have developed a clear set of rules limiting the way in which land can be burdened through the creation of servitudes and on the other hand have allowed those rules to be bypassed by the use of covenants.  It would mean that if, for example, adjoining land owners wish to impose a positive burden on the land of one of them, which the rules in relation to servitudes would not permit, they can achieve their purpose by calling it a covenant expressed as being in favour of the other of them (and not his or her adjoining land) and potentially his or her heirs.  That would be to allow excessive burdens to be imposed on land, an evil against which the customary law has set its face.  Through the use of juristic persons, as in the case before us, such burdens could be created, effectively, in perpetuity. 

88.      To the extent that historically the law may have permitted servitudes personelles to burden the land, it was in favour of an individual person and, as Pothier says, it would end with the death of that person, thus having a very limited impact upon the burdened land. 

89.      There is the clearest authority for the proposition that land can be burdened in favour of other land though the creation of a servitude and the clearest of authority for the proposition that land can be burdened in favour of persons through a usufruit or lease (accepting the potential for other specific cases upon which we have not been addressed), but there is scant authority for the general proposition that a covenant can burden land, unless it constitutes a servitude such as the restrictive covenant under consideration in La Petite Croatie v Ledo. 

90.      Another specific case might be building schemes which could, arguably, be analysed on the basis that they constitute mutually enforceable covenants rather than servitudes, but as the Solicitor General says, that has not been the approach of the Court in the cases he cited. 

91.      The Schools Trust case is the high water mark in terms of authority presented to us, but leaving aside the fact that in our view, and based upon the subject contract, it was wrongly decided, it provides no reasoned basis for Jersey law developing two potentially inconsistent regimes in relation to the burdening of land and allowing covenants to bypass the clear rules established in relation to servitudes.  The Court of Appeal was careful in Jersey Hotels Limited v Inglebert Properties Limited, it seems to us, not to give any support to the contention of the appellant that the covenant in that case created a real obligation that ran with the land. 

92.      The lack of authority in this area of law is perhaps understandable in a small jurisdiction but that lack of authority would not prevent the Court from developing our customary law to meet the exigencies of the particular case before it.  Accordingly and notwithstanding that lack of authority, it would be unhelpful, in our view, for us to reach any conclusions on the general proposition that a covenant can burden land, or to accede to the Solicitor General's submission that only servitudes or statute can burden land, and to limit our conclusions to the facts of this case, which concern a positive covenant. 

93.      In this case, quite apart from the lack of authority, no reasoned basis has been put forward as to why the customary law permits, or should be developed to permit, a positive covenant to be enforced against a successor in title who was not privy to the original covenant. 

94.      Turning therefore to the facts of the case before us:-

(i)        The Bellozanne covenants did not purport to create a covenant binding on the Bellozanne land and in favour of the Parish personally.  They purported, but failed, to create a servitude binding on both parties' successors in title. 

(ii)       Even if the Bellozanne covenants had purported to burden the Bellozanne land in favour of the Parish personally, such covenants, being positive in nature, would not have been effective for that purpose for the reasons set out above. 

(iii)      If we are wrong and the Bellozanne covenants had created a burden upon the Bellozanne land by way of a covenant as opposed to a servitude, then as a matter of construction and for the reasons set out earlier that burden would have ceased, in any event, in 1979 when the destructors were dismantled or would be terminable on reasonable notice as we find below. 

Implied term

95.      If the Court is wrong in construing the Bellozanne covenants as enduring only for the life of the existing destructors, then, should a reasonable notice provision be implied? 

96.      Pothier gives limited assistance in the passage we have cited above but to repeat:-

"47     Régulièrement le temps n'éteint point les obligations; ceux qui s'obligent, s'obligent à perpétuité, eux les héritiers, jusqu'au accomplissement de leur obligation."

[Regularly lapse of time does not extinguish obligations; persons who enter into an obligation oblige themselves and their heirs until the obligation is perfectly accomplished]

The obligation undertaken by the Public in this scenario is not one that can be accomplished in any given time; it is on the face of it on-going. 

97.      The leading case on implied terms is Grove v Baker [2005] JLR 348, where it was held that a party seeking to persuade the Court that a term should be implied into a contract, must show either that the term is customarily included in contracts of the kind in question or that it is necessary to imply the term in order to ensure that the contract is not futile, inefficacious or absurd. 

98.      As Bailhache, Bailiff, said in Grove v Baker at paragraph 13:-

"13     We interpose, that determining the Jersey law of contract is too often presented by counsel (we exonerate counsel in this case) as a battle between legions carrying the flags of French law and English law respectively.  The court is too often enjoined to apply French law to this problem, or to apply English law to that.  This court is concerned only to apply the law of Jersey.  If we can do so, we will apply the custom and the law laid down in previous decisions of this court.  If the law cannot be found in that way, we must adopt principles from elsewhere.  As has been stated by successive judges for 50 years or more, the surest guide to the Jersey law of contract is the works of Pothier.  However, as the court also stated in Selby v Romeril )(6) [1996] JLR at 218), Pothier was writing many years ago and 'our law cannot be regarded as set in the aspic of the 18th century'.  Our customary law is organic and must absorb influences from other jurisdictions where a particular issue is not clear.  It is the principles rather than the foreign law which are applied and, once applied, become the law of Jersey.  These principles themselves will, in due time, need to be developed;  in those circumstances, the court may or may not develop the law in accordance with any changes which may have taken place in the jurisdiction from which the principles were originally imported."

99.      We drew some assistance from the English Court of Appeal decision in Staffordshire Area Health Authority v South Staffordshire Water Works Company [1978] 1 Weekly Law Reports 1387, the facts of which are not dissimilar.  In that case, an agreement was entered into between a Hospital and a Water Company, against a statutory background, that (i) the Water Company would "at all times hereafter" supply to the Hospital 5,000 gallons per day free of cost, (ii) the Hospital would "at all times hereafter" be at liberty to take from the mains any further quantity needed and (iii) payment therefore would be 7p per each 1,000 gallons so supplied.  It was held that the question whether the Water Company could show that a power to determine the agreement on reasonable notice should be inferred depended on it establishing that having regard to all the existing circumstances, and in particular the statutory background, the parties presumably intended such power of termination when they entered into the agreement.  The literal construction of the words "at all times hereafter" as meaning "in perpetuity" was untenable, for it was incredible that the Water Company, bound by an Act of Parliament to supply water to the hospital on concessionary terms, would have intended to bind itself by an agreement to supply not only what it was bound to supply under the Act, but in addition, the first 5,000 gallons per day free of cost and thereafter an unlimited supply at a fixed price once and for all. 

100.   Lord Goff, whose approach in this case has been more recently approved by the English Court of Appeal in Colchester and East Essex Cooperative Society Ltd v The Kelvedon Labour Club and Institute Ltd [2003] EWCA Civ 1671, approached the matter in this way at page 1399:-

"So I pass the second way in which the defendants put their case, and here I accept the principles laid down by Buckley J in In re Spenborough Urban District council's Agreement [1958] Ch. 139, 146, 147 where he said:

'Authority establishes that, where an agreement does not in terms confer on the parties or one of them a power to determine the agreement, whether such a power should be inferred is a question of construction of the agreement to be determined in accordance with the ordinary principles applicable to such a question.'

and he cited from Lord MacDermott in Winter Garden Theatre (London) Ltd. v Millennium Productions Ltd. [1948] AC 173, 203, with whose opinion Viscount Simon and Lord Simonds concurred. I continue the quotation:

'Since ex hypothesi such an agreement contains no provision expressly dealing with determination by the party who asserts that this should be inferred, the question is not one of construction in the narrow sense of putting a meaning on language which the parties have used, but in the wider sense of ascertaining, in the light of all the admissible evidence and in the light of what the parties have said or omitted to say in the agreement, what the common intention of the parties was in the relevant respect when they entered into the agreement.  It is of the nature of this problem that he who asserts that the parties intended something which they omitted to state expressly must demonstrate that this was so.  Sir Andrew Clark for the corporation accepts this .... An agreement which is silent about determination will not be determinable unless the facts of the case, such as the subject matter of the agreement, the nature of the contract or the circumstances in which the agreement was made, support a finding that the parties intended that it should be determinable, but there is, in my judgment, no presumption one way or the other.'"

101.   Lord Denning also approached it on the basis of equality.  Quoting from page 1395:-

"Contracts which contain no provision for determination

We were taken through six cases which considered contracts which contained no provision for determination.  On going through them, they seem to show that when a person agrees to supply goods or services continuously over an unlimited period of time in return for a fixed monthly or yearly payment, the courts shrink from holding it to be an agreement in perpetuity.  The reason is because it is so unequal.  The cost of supply of goods and services goes up with inflation through the rooftops and the fixed payment goes down to the bottom of the well so that it is worth little or nothing.  Rather than tolerate such inequality, the courts will construe the contract so as to hold that it is determinable by reasonable notice.  They do this by reference to the modern rule of construction.  They say that in the circumstances as they have developed - which the parties never had in mind - the contract ceases to bind the parties forever.  It can be determined on reasonable notice."

102.   The same point can be made here.  The documents before us suggest that the cost of running the three destructors in 1952 was £5,000 per annum.  Although we have no figures on the cost of running the new incinerator at La Collette (which admittedly serves the whole Island rather than one, albeit major, parish), which we are told cost £103M to build, we can safely assume that it dwarfs that figure and will increase inexorably over time. 

103.   Quite apart from the inherent improbability of the Public, being ultimately responsible for the disposal of refuse in the Island, putting forward an agreement that would operate to bind the Public in perpetuity to take the refuse produced by the Parish at no charge, the words "Le tout à fin d'héritage", used to indicate the nature of the title to the land being sold, do not conclusively and inevitably declare perpetuity in respect of these particular provisions; indeed, Advocate Williams conceded that all but the first part of clause 1 were not so intended.  

104.   To construe the phrase "Le tout à fin d'héritage" as applying to the first part of clause 1, the obligation to accept the Parish's refuse, as an obligation in perpetuity is not tenable, for it is incredible that the Public would have intended to bind itself to provide such an increasingly costly service for ever.  It is necessary therefore to imply a term making the Bellozanne covenants terminable on reasonable notice. 

105.   Neither party contemplated the ever more stringent environmental standards laid down by a succession of international conventions over the 64 years since the 1952 contract was entered into and to which the Island seeks now to conform.  We are told that there has been a change in the nature of the refuse delivered to Bellozanne with the material becoming dramatically less dense but with significant increases in plastic and non-biodegradable fractions.  In 1976, the States accepted the recommendation that solid waste disposal should be by incineration and that the by-product heat should be used for the production of electricity - an idea that was best practice at the time.  A two-stream incinerator was commissioned in 1979, based on handling 50,000 tons of refuse a year.  It was designed with provision to add another stream and, due to rising demand, the third stream was commissioned in 1992, dealing with 80,000 tons of waste per annum (see the Waste Strategy Report Vol II at page 23).  As stated above the capital cost of the new incinerator at La Collette was in the order of £103M compared to the £22,500 the Public paid for the Bellozanne land and its three destructors. 

106.   We conclude that, if we were wrong in construing the Bellozanne covenants as terminating in 1979 with the dismantling of the three destructors, then of necessity they were terminable by reasonable notice, such notice deemed to have been given and the Bellozanne covenants terminated in 1979 or at the very latest in January 2011 when refuse ceased to be taken to the Bellozanne land. 

1994 Contract

107.   The Parish did not contend that if the obligations created under the Bellozanne covenants had terminated in 1979, the 1994 contract in some way resuscitated them.  The Parish instead relied upon the 1994 contract, in part, for its submissions in relation to estoppel to which we will come shortly. 

108.   The 1994 covenant was, in translation: -

"It was specially covenanted and agreed between the said parties, namely:- the said Constable and Procureurs du Bien Public, authorised as aforesaid for and on behalf of the said Parish of St Helier and for its successors or assigns, and the said authorised persons for and on behalf of the said Public of this Island and for its successors or assigns, as follows , namely :-

THAT for the avoidance of any doubt, the provisions of the first and second new clauses contained in the said contract of the said day 31st May, 1952, of hereditary purchase by the said Public of this Island from the said Vendor Parish shall remain and shall stay in full force and vigour in perpetuity."

109.   By way of reminder, the first and second new clauses contained in the Bellozanne covenants were these, in translation:-

"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 8 hours in the morning to 5 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 public markets at the same hours as at present, that is to say from 6 hours in the afternoon to 8 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 6 hours in the morning as and whenever necessary."

110.   The 1994 covenant was inserted for the avoidance of doubt and the question arises as to what doubt a sale of Parcq de Bas to the Public could give rise to?  Without recourse to extrinsic evidence, the doubt must presumably have been that by selling Parcq de Bas, the Parish were selling the dominant tenement to the Public which would have extinguished what the makers of the 1994 contract clearly regarded as a servitude.  Parcq de Bas, as the parties have agreed, can never have been the dominant tenement as the obligations were not for the benefit of that land, but if it was, then by its sale, the dominant and servient tenements have merged, with any servitude created being extinguished. 

111.   A number of further points can be made:

(i)        The makers of the 1994 covenant assumed that clauses 1 and 2 of the Bellozanne covenants constituted a servitude, which they did not, and purported to continue them in force as a servitude - an impossibility. 

(ii)       This was not the creation of a new obligation, but the confirmation of an existing obligation under the Bellozanne covenants which was to continue in force. 

(iii)      The makers assumed that clauses 1 and 2 of the Bellozanne covenants were still in force, which they were not. 

(iv)      The 1994 covenant related to the whole of clauses 1 and 2 of the Bellozanne covenants, when Advocate Williams acknowledges that all but the first part of clause 1 could not have been intended to endure in perpetuity. 

112.   There was no application by either party to have the 1994 contract or the 1994 covenant set aside on the grounds of erreur. The result is that the 1994 covenant remains in place but is simply empty of content and of no effect.

113.   To the extent that we are wrong in construing the Bellozanne covenants as terminating in 1979 and that they were in force at the time of the 1994 contract, then they were terminable by reasonable notice, which we have found would be deemed to have been given and the Bellozanne covenants terminated at the latest in January 2011. 

Estoppel

114.   Advocate Williams, for the Parish, submitted that even if the Bellozanne covenants were void and extinguished, the Public was estopped from so asserting by reason of what it had agreed in the 1994 contract and what the Parish considers were a number of representations made by the States as to the ongoing existence of the Bellozanne covenants.  The admissibility of the evidence in relation to the alleged representations was left open pending consideration of whether parliamentary privilege might apply to it.  Subject to that, the evidence of what the Parish maintain were representations by the States (other than the 1994 contract) are, in summary:-

(i)        In the Shadow Scrutiny Panel Report dated April 2005 section 9 refers specifically to the Bellozanne covenants.  In this regard, the "Findings" include that "Without a resolution of the Bellozanne Covenant issue it will be impossible to impose any form of use pays charge or environmental tax for waste disposal on the residents of St Helier".  (Advocate Williams' emphasis).  That finding, he said, indicates the decision to accept the proposal to remove the Bellozanne covenants was in the gift of the Parish and that ultimately, the Bellozanne covenants would need to be bought out on commercial terms. 

(ii)       The Solid Waste Strategy (P.95'2005) dated 10th May, 2005, was prepared by the Environment and Public Services Committee and debated on 12th/13th July, 2005.  This referred to the Bellozanne covenants at paragraph 8.1.4 as follows:-

"When the Bellozanne site was sold by the Parish of St Helier to the Public of the Island, a covenant was included, stipulating how waste should be received.  The legal advice to the Committee is that it is implicit in this obligation to accept the refuse free of charge. The Committee has made preliminary investigations into the options for resolving this situation, and will negotiate with the Parish of St Helier to find a satisfactory way forward.  This may incur some costs which cannot be quantified in advance of discussions with the Parish." (Advocate Williams' emphasis added)

(iii)      In the solid waste strategy debate (P.95/2005) which took place on 12/13 July 2005, the President of the Committee (Senator Ozouf) stated that: "We have decided not to impose a domestic waste charge on people in Jersey and for that reason we don't need to lift the Bellozanne covenant but there is a situation of wanting to deal with commercial waste.  We do think there is going to have to be some carrot and stick, and charging for commercial waste that needs to be looked into and we think that it is prudent that the right thing to do in order to get the Bellozanne covenant clarified.  We think the best way of dealing with that is to probably get a court declaration to decide what it means."

(iv)      On 6th November, 2014, the Minister said in the States that: - "I believe currently that it is not possible to bring waste charges in on domestic waste due to the covenant with St Helier ..Anything to renegotiate or rearrange the covenant with St Helier would require, I would have thought, the approval of this Assembly and so if it was a desire from the Parish and from the Government to renegotiate the contract, then Government and the Parish will seek to do that."

(v)       On 2nd June, 2015, the Minister said in the States:- "The Constable is indeed correct ... He is correct that for us to be able, as an Assembly, to bring a user pays charge for those using our Energy from Waste plant we would have to lift what is known as the Bellozanne Covenant"

115.   The rules in relation to the admissibility of extrinsic evidence when construing a contractual document do not apply here, and we can, therefore, have regard to the exchange of correspondence here that took place in 1994 between lawyers acting for the parties.  This shows that the 1994 covenant was inserted by Le Masurier Giffard & Poch, acting for the Parish, and when this was questioned, they explained in their letter of 9th December, 1994:-

"The purpose of the clause is not to encumber the field being sold with the two clauses from the deed of May, 1952, but rather to ensure that the two clauses are not considered to be cancelled on the grounds that the area of land the Parish is now selling to the Public constituted the sole tenement dominant at the time of the 1952 sale, (which clearly was not the intention of the parties at that time)."

116.   The last section in brackets implies that it was considered then that there was other land which constituted the dominant tenement, but the only other land that could qualify as such was the road (since 1997 owned by the States).  

117.   Advocate Williams relied on three types of estoppel, namely estoppel by deed, promissory estoppel and estoppel by representation. 

Estoppel by deed

118.   Advocate Williams described estoppel by deed as a sub-set of estoppel by convention, whereas we note from Spencer Bower, Estoppel by Representation 4th edition chapter 8 that the origin of the modern doctrine of estoppel by convention under English law in fact lies in that of estoppel by deed, for which sealing and delivery were essential and for which the foundation lay not in the agreement itself, or in any reliance thereon, but in the formal solemnity of the deed, reflecting the concern of ancient jurisprudence with form as opposed to substance.  Estoppel by deed would not, Advocate Williams argued, be subject to the reservations expressed by Bailhache, Bailiff, in Sutton v Insurance Corporation of the Channel Islands [2011] JRC 027 at paragraphs 33 - 34 as to whether estoppel by convention could form part of the law of Jersey. 

119.   There is no authority in this jurisdiction as to whether estoppel by deed has been recognised as forming part of the law of Jersey, but in Fogarty v Martin's Cottage Limited [2015] (1) JLR 356, Bailhache, Bailiff, said this at paragraph 33:-

"33     There is more than just that certainty principle involved.  Where parties to a transaction freely come to take court and take an oath to abide by the terms of the contract upon pain of perjury, it is unthinkable for a court to pay only lip service to that act.  The principles underlying la convention fait la loi des parties are given added impetus by the fact that the contracting party has sworn on oath to abide by the terms of the contract.  Such contracts can be set aside on the usual grounds of dol, erreur or lésion, because all those principles go to the fundamental free will or volonté of the contracting parties; but, that apart, what is found in the Public Registry can be relied upon."

120.   However, Bailhache, Bailiff makes it clear at paragraph 31 that the ordinary law of contract applies:-

"31     Of course it is possible for contracts which are passed before the Royal Court in the form which we have identified to be the subject of an order by the court for rectification on the usual grounds, or on occasion be set aside in their entirety on any ground which would give rise to an ordinary contract being set aside.  The fact that the subject matter of the contract is land as opposed to anything else does not mean that the ordinary law of contract does not apply.  Of course it does."

121.   In Greer v Kettle [1938] AC 156 Lord Maugham described estoppel by deed as a rule of evidence founded on the principle that a sworn and unambiguous statement or engagement in a deed must be taken as binding between the parties and privies and therefore as not admitting any contradictory proof, although he confirmed that the following statement of law had never been doubted:-

"A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or deception on his part."

122.   We are not persuaded that such a rule of evidence, emanating from 19th century English cases, reflecting a concern in those days with form over substance, forms part of the law of Jersey, and that it is sufficient to say that Jersey law places emphasis upon the solemnity of contracts passed before the Royal Court. 

123.   It is clear in any event that the parties to the 1994 contract included the 1994 covenant in the mistaken belief that the Bellozanne covenants constituted a servitude and were still in force.  To estop the Public from arguing that they were in fact extinguished would be to revive and extend the Bellozanne covenants in perpetuity, contrary to what the parties originally intended, and leading to the absurd result that the right granted in perpetuity would be for the Parish to take its refuse to three destructors on the Bellozanne land that have not existed for 34 years.  

124.   We conclude that the Public, by being a party to the 1994 contract, is not estopped from arguing that the Bellozanne covenants are extinguished.  

Promissory Estoppel and Estoppel by representation

125.   We start with these general observations by Kerr LJ giving the judgment of the English Court of Appeal in The August Leonheart [1985] 2 Lloyd's Rep 28 at 34-5:-

"All estoppels must involve some statement or conduct by the party alleged to be estopped on which the alleged representee was entitled to rely and did rely.  In this sense all estoppels may be regarded as requiring some manifest representation which crosses the line between representor and representee, either by statement or conduct.  It may be an express statement or it may be implied from conduct, e.g. a failure by the alleged representor to react to something said or done by the alleged representee so as to imply manifestation of assent which leads to an estoppel by silence or acquiescence.  Similarly, in cases of so-called estoppels by convention, there must be some mutually manifest conduct by the parties which is based on a common but mistaken assumption.  The alleged representor's participation in this conduct can then be relied upon by the representee as a basis for this form of estoppel."

126.   In his review of the general principles Dorey, Commissioner, in Pirouet v Pirouet [1985/6] JLR 151 at page 159 quoted with approval this extract of the judgment from Lord Denning MR in Moorgate Mercantile Credit Company Limited v Twitchings [1975] 3 All ER at 323:-

"Estoppel is not a rule of evidence.  It is not a cause of action.  It is a principle of justice and equity.  It comes to this.  When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so."

127.   In his collective summary of estoppel principles (although in particular proprietary estoppel, which is not asserted here) Bailhache, Bailiff said this in Flynn v Reid [2012] JRC 100 at paragraph 49:-

"Now there is no doubt that in cases of equitable estoppel, the remedy is provided because the law forbids the party from exercising his legal rights by resiling from a representation he has made to the defendant on which the defendant relied to his detriment.  Equity in the classic sense there mitigates the rigours of the law; but although the boundaries are not always as clear as one might wish, it is possible to say that the law has not changed.  The legal rights remain the same, but in equity, they cannot be enforced."

128.   In his review of estoppel in Amalgamated Property Co v Texas Bank [1982] QB 84, Robert Goff JA gave this overview:-

"The basis of all these groups of cases appears to be the same - that it would, despite the general principle, be unconscionable in all the circumstances for the encourager or representor not to give effect to his encouragement or representation.  The first group concerns cases where equity would regard it as fraudulent for the party against whom the estoppel is alleged not to give effect to his encouragement or representation; an example of such a case is where, on the principle stated by Lord Kingsdown in Ramsden v Dyson, L.R. 1 H.L. 129, a party has encouraged another in the expectation that he shall have an interest in the encourager's land, and the other party has, on the faith of that encouragement, expended money on that land.  The second group consists of cases concerned with promissory estoppel, in which one party represents to another that he will not enforce his strict legal rights under a legal relationship between the parties.  The representation may be no more than a gratuitous promise; but it may nevertheless be unconscionable for the representor to go back upon it, because a representee may reasonably be expected to act in reliance upon such a forbearance, without going to the extent of requiring a contractual variation.  The third group concerns cases where one party has represented to the other that a transaction between them has an effect which in law it does not have.  In such a case, it may, in the circumstances, be unconscionable for the representor to go back on his representation, despite the fact that the effect is to reduce his rights or to enlarge his obligations and so give effect to what is in fact a gratuitous promise; for the effect of the representation may be to cause or contribute to the representee's error or continued error as to his true legal rights, or to deprive him of an opportunity to re-negotiate the transaction to render it legally enforceable in terms of the representation."

129.   In our view, there is no foundation in the case before us for an argument in promissory estoppel or estoppel by representation.  There is no evidence of any promise or representation on the part of the States that it would take the Parish refuse free of charge, apart from that contained in the Bellozanne covenants, which by their own terms are extinguished.  The 1994 covenant does not constitute a promise or representation on the part of the Public, but constitutes an agreement between the parties on the mutually mistaken premise that the Bellozanne covenants were still in force at that time.  If, contrary to our findings on construction, they were still in force in 1994, then we have found that they were terminated by notice by January 2011 at the latest.  

130.   We do not regard any of the statements taken from the reports and from Hansard as summarised above (and assuming admitted), taken alone or cumulatively, as constituting a promise or representation on the part of the States that it would provide this service free of charge in perpetuity.  The fact is that the Bellozanne covenants are there on the title and until extinguished by a further contract passed before the Court by the parties or by an order of the Court or by a law passed before the States, they represent an impediment, allowing the Parish to argue, as it does, that they are still in force.  The States have done nothing more than acknowledge that impediment. 

131.   There are a number of other extracts from Hansard in 2006 (upon which the Parish do not rely) from which it is clear that the exact meaning of the Bellozanne covenants was considered a complex legal matter which may require a ruling of the Court.  On 16th June, 2015, the Minister advised the States that there was no covenant and that if there was an impasse with the Parish, he could not rule out seeking to bring the matter before the Royal Court for a declaration as to its correct interpretation or validity.  

132.   Even if all this evidence taken together (and again assuming it is admitted), might be interpreted as constituting a promise or representation on the part of the States, we can see no evidence that the Parish has in any way relied or acted upon it.  Advocate Williams could only say that it had led to inaction on the Parish's part.  The Parish, he said, had been denied the opportunity of having the covenant construed at an earlier time, when evidence may have been more easily available; most of those involved are now dead.  This carries little weight in the light of the evidential constraints in construing contracts passed before the Royal Court. 

133.   On the contrary, it seems to us that the Parish has simply benefited:-

(i)        By receiving the consideration payable under the 1952 contract and the 1994 contract. 

(ii)       By being released from the burden of operating, maintaining and replacing from time to time the destructors on the Bellozanne land. 

(iii)      By having its refuse disposed of without charge from 1979, when the obligation ceased, to the present date, namely some 37 years. 

134.   All that has now happened is that the States may wish to impose a user pays charge across the Island, for the reasons explained by John Rogers in his affidavit, and we can see nothing unconscionable or inequitable in that.  Indeed, it seems to us that it would be unconscionable and inequitable if the States were unable to do so by virtue of the Bellozanne covenants. 

Parliamentary Privilege

135.   The evidence upon which the Parish sought to rely in its arguments on estoppel (apart for the 1994 contract) was originally exhibited to Constable Crowcroft's affidavit of 4th May, 2016, and the point was raised by the Solicitor General, at the instigation of the States Greffier, as to whether such documents were privileged both generally and under Article 36 of the States of Jersey Law 2005, which provides:-

"No member of the States .... shall give evidence (a) in respect of the contents of any document laid before any of those bodies ... without the prior consent of the body concerned."

136.   The issue of Article 36 has been circumvented by the same materials, all of which are publicly available, being exhibited to an affidavit of Lianna Marie Pallot of Ogier.  In Burt and Burt v States of Jersey [1994] JLR 245, it was held that Article 47 of the States of Jersey Law 1996, which is in the same terms, prohibited those persons listed from giving evidence of those matters without the permission of the States, but if evidence of those matters was available from other sources, there was nothing in the article to exclude it.  In that case, the Solicitor General consented to the use of the documents concerned without proof. 

137.   The Solicitor General remained concerned, however, about the issue of parliamentary privilege generally.  In an effort to avoid further delay, the case proceeded without prejudice to that issue. 

138.   The Court has considered the materials and found that they would not, if admitted, support the case of estoppel.  The issue of Parliamentary Privilege, if it is to be pursued, would necessitate a further hearing and the Court will hear from the parties as to whether that is necessary. 

Conclusions

139.   Subject to the issue of privilege and for the reasons set out above, the Court will declare that the Bellozanne covenants are spent and extinguished. 

140.   We will direct the Judicial Greffier to make a marginal note to the above effect against the entries of the 1952 and 1994 contracts in the Public Registry. 

Authorities

Pearce v Treasurer of the States [2014] JRC 139B.

In the matter of the curatorship of X [2002] JLR 259.

Trilogy Management v YT Charitable Foundation (International) Limited and Seven Others [2012] JCA 152.

In re Internine Trust [2005] JLR 236.

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

Crociani v Crociani [2014] JLR 426.

La Petite Croatie Limited v Ledo [2009] JLR 116.

Haas v Duquemin [2002] JLR 27.

Pothier Traite des Obligations (1821 Edition).

Selby v Romeril [1996] JLR 210.

Le Feuvre v Matthew [1974] JJ 49.

Crediton Gas Co v Crediton UDC [1928] Ch 174 (affd [1928] Ch 447, CA.

Traité des Servitudes (8th Edition, 1834.

Gale and Clarke v Rockhampton Apartments Limited [2007] JLR 332.

Fogarty v St Martin's Cottage Limited [2015] (1) JLR 356.

Le Feuvre v Matthew [1973] JJ 3461.

Ex Parte Schools Trust (Jersey) Limited [1935] 12 Cr 361.

Jersey College For Girls (Removal of Covenants from Former Site) (Jersey) Law 2006.

Jersey Hotels Limited v Inglebert Properties Limited (1980) JJ 23.

Johnson v Summers [1971] JJ 1889.

National Trust for Jersey Law 1984.

Planning and Building (Jersey) Law 2002.

Drainage (Jersey) Law 2005.

Water (Jersey) Law 1972.

Rhone v Stephens [1994] 2 AC 310.

Law of Property Act 1925.

Harris v Mont Gras d'Eau Investments Limited [1980] JJ at 193 - 195.

Cotillard v O'Connor [2007] JRC 005.

Basden Hotels and Dormy Hotels [1968 ] (1) JJ 911).

Grove v Baker [2005] JLR 348.

Staffordshire Area Health Authority v South Staffordshire Water Works Company [1978] 1 Weekly Law Reports 1387.

Colchester and East Essex Cooperative Society Ltd v The Kelvedon Labour Club and Institute Ltd [2003] EWCA Civ 1671.

Estoppel by Representation 4th edition.

Sutton v Insurance Corporation of the Channel Islands [2011] JRC 027.

Fogarty v Martin's Cottage Limited [2015] (1) JLR 356.

Greer v Kettle [1938] AC 156.

The August Leonheart [1985] 2 Lloyd's Rep 28 at 34-5.

Pirouet v Pirouet [1985/6] JLR 151.

Moorgate Mercantile Credit Company Limited v Twitchings [1975] 3 All ER at 323.

Flynn v Reid [2012] JRC 100.

Amalgamated Property Co v Texas Bank [1982] QB 84.

States of Jersey Law 2005.

Burt and Burt v States of Jersey [1994] JLR 245.

States of Jersey Law 1996.


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