"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Keep Out of My Shopping Mall
CIN Properties Ltd v. Rawlins and Others
(1995) The Times, February 9.Court of Appeal
This appeal raised a question as to the nature of the rights of the public to use the pedestrian malls within a town shopping centre. The facts, taken from the judgment of Balcombe, LJ, were as follows.
The defendants were young men who lived in the area and frequented the centre. CIN alleged that their behaviour caused a nuisance and sent letters to each of them revoking any licence they might have had to enter the centre. When the defendants continued to frequent the centre CIN started an action seeking appropriate declarations and injunctions. The equitable principle upon which the defendants relied was that referred to in Halsbury' s Laws of England (4th edition, vol. 27(1), para.14):
"Equity recognizes and enforces rights (sometimes referred to as 'equities of possession' or 'equitable licences') so as to restrict the revocation or licences to occupy or use premises which at common law would be regarded as revocable. This restriction occurs where a person who is occupying or using land has acted in reliance upon the representation or the acquiescence of the person having a proprietary interest in respect of that land."
In the court' s judgment that principle had no application in the circumstances of the present case. There was no representation by either the council or by CIN that the public would have irrevocable rights to use the pedestrian malls, nor was there any evidence that any member of the public had altered his or her position in reliance upon any such representation. Indeed, the court had the gravest doubts whether that principle could ever apply so as to create rights in favour of the public at large, since it was difficult to see how the acts or omissions of those individuals who relied on a representation could create rights in favour of the public.
In the absence of dedication as a highway, or a walkway agreement, pursuant to s.35 of the Highways Act 1980 there was no legal or equitable right for the public to use a pedestrian mall within a town centre shopping area and any licence to do so could be determined by the owners. The Court of Appeal so held in allowing an appeal by CIN Properties Ltd from a judgment at Wellingborough county court on a preliminary issue, whereby it was held, in respect of the Swansgate shopping centre, Wellingborough, that the public had an irrevocable right to enter and use the malls whenever the doors were open but, as the right was equitable, reasonable conduct was required of those availing themselves of the facilities and in appropriate cases the court would have power to grant injunctions restraining entry to the centre.
The court would remit the case to Wellingborough county court to be continued on the basis that CIN had the right, subject only to an issue under s.20 of the Race Relations Act 1976, to determine any licence the defendants might have had to enter the centre.
Comment
Similar "exclusion orders" have been served in the past on "shoplifters". The object was to turn a "thief' into a "burglar" by the following means, viz. a notice stating:
"I hereby serve you with notice on behalf of... that you are not to enter any of our stores at any time and should you do so you will be regarded as a trespasser. The conditional invitation extended to members of the public to enter the said premises of... for the inspection of goods in the store, with a view to purchase, is withdrawn forthwith insofar as you are concerned."
The first move to fasten the "burglar" tag to a "thief' can be traced back as far as 1981. At first the move was not very successful since Judges were mindful of two factors: i) the wishes of Parliament who in enacting separate sections of the Theft Act 1968 make it clear that a thief is not a burglar; and ii) as a general rule the prosecution are debarred from tendering evidence to show the defendant is of bad character.
In recent years some of the larger stores have been more successful. Police Review of December 27, 1991 quoted Brian Hudspith, a spokesman for Marks and Spencer - which charged more than 15,000 "shoplifters" in 1990 - as saying: "We've operated this policy for a number of years but in recent months there's been an increase in levels of organized shop crime. Gangs are travelling from town to town and store to store, stealing goods worth hundreds of thousands of pounds, so we hope stepping up the issue of trespass notices will act as a deterrent".
Perhaps the answer has been found, instead of "keep out of my shop", it is "keep out of my shopping mall". This could apply equally to persons who steal or cause a nuisance.
Rob Jerrard