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Clear contracts avoid murky waters for land owners

Should the parish of St. Helier have to pay to dispose of its rubbish?

Promises, rubbish and a burning issue in St. Helier. The name “Bellozanne” makes most of us think of the home of the sewage works; the scrapyard; and the motorbike test centre. It was in fact the birthplace of the Jersey Royal.  It is also now the source of a dispute between the Public of the Island of Jersey and the parish of St. Helier (POSH).

Rubbish

Historically, there was no joined up thinking for the island’s waste disposal. Each parish was left to dispose of its own waste. St. Helier had three burners which were kept on land it owned in Bellozanne valley. In the 1950s the States resolved to have an island wide plan for waste disposal. There were two possible sites for burning the rubbish, one of which was POSH’s three destructors sited at Bellozanne. A deal was struck for the sale of the site to the Public i.e. the States. The contract of sale included clauses which, amongst other things, required the Public (as owner of the land) to accept the waste from POSH. In the 1970s the three destructors were replaced by one tall chimney incinerator. It originally had two streams to the burner, but a third was added in the 1990s to cope with the increasing volume of waste. The arrangement continued and the Public accepted the waste from POSH.

Time has moved on and the tall chimney stack at Bellozanne has been demolished; the energy-from-waste plant has been operating for some time at La Collette; and there are plans afoot for an island-wide “user pays” waste disposal scheme. This would be undermined if POSH could still have its waste disposed of for free.

The clauses

When the site was sold to the Public in the 1950s, the following clause was included in the contract:

“That the said Public of this Island will be obliged to accept in the same way as did the Parish before the passing of this present deed all the scrap, rubbish, refuse, peelings urban waste, sludge or other waste whatsoever which may be brought to the said destructors…” [from POSH].

POSH relied on this clause to have its waste disposed of by the States of Jersey free of charge – an understanding which has lasted for 37 years. The Minister for Infrastructure has now challenged the legal validity of the obligation and whether the Public must continue to accept waste from POSH at no charge at the new waste plant at La Collette.

Servitudes and covenants

Promises made by one land owner in favour of another can be agreed to bind land forever or, as conveyancers like to call it, “in perpetuity”. This is what is called a servitude. The servitude will only operate in law provided that it is:

  • passive in its operation; and
  • benefits adjacent land.

A passive right over land would be something such as right of way over land to the benefit of adjacent land or a restriction not to build above a certain height to preserve a view enjoyed by another section of land. In this case the burning of rubbish was decided to be a positive action and therefore could not be a servitude binding the land.

Personal servitudes and covenants

There are, however, other rights which can be created to force the owner of the land into a positive obligation. But these will not bind subsequent owners of the land if the land is sold or if the owner were to die. Those rights bind the current owner of the land to perform some action, but once that person is no longer the owner of the land the requirement to keep to the action ceases. The court first looked at the wording of the 1950s clause. Both sides of the argument had interpreted it to mean that rubbish from St. Helier would have to be disposed of for free.

How the court interpreted the clause

The court examined the wording of the contract, as opposed to the conduct of the parties and what they thought it meant. It can only be enforced by what it actually said rather than what the parties thought it meant.

The court decided that:

  • the arrangement had naturally expired since the agreement had been to take the rubbish to the “destructors” as they then were in the 1950s and the obligation probably ended when they were replaced in the 1970s; and moreover
  • the agreement was so lopsided in favour of POSH that naturally there must be an applied term that the Public could cancel the arrangement on reasonable notice. Notice was deemed to have been given.

For both reasons, the court resolved that the arrangement had come to an end. The case may now be subject to an appeal by POSH.

The moral of the story

The case report has shown that if the contract had been clearer, the row between the parties could have been avoided or at least diminished.

At Viberts we understand that clarity in all relationships, both with work and clients, is crucial and we strive to make sure that all matters are clear and robust.

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