16th May 2024
Without Prejudice
Friends of Shepherd’s Bush Market (FoSBM)
friendsofsbm@gmail.com
For the attention of:
The Mayor of London – mayor@london.gov.uk
The Leader of the Hammersmith & Fulham Council – stephen.cowan@lbhf.gov.uk
YC Shepherd’s Bush Market Ltd.’s Proposals to
Remove the Market Businesses Liberties & Easement Rights
Dear Mayor of London and Leader of the Hammersmith & Fulham Council,
‘Friends of Shepherd’s Bush Market’ (FoSBM) is a collective group of market tenants, market licensees, employees of the market businesses, local residents/customers/supporters, and supportive community groups. ‘Friends of Shepherd’s Bush Market’ currently holds the leading collective representation of the Shepherd’s Bush Market Tenants.
The company YC Shepherd’s Bush Market Ltd. formerly known as Orion Shepherd’s Bush Market Ltd. is the landlord of Shepherd’s Bush Market and the applicant of the proposed planning application – reference GLA 2023/01093/FUL. ‘Friends of Shepherd’s Bush Market’ recognises that this planning application threatens the long-term affordability, viability, and diversity of the existing Shepherd’s Bush Market businesses.
Unfortunately, the developer’s agenda, incentives, and goals are very different from that of the Shepherd’s Bush Market businesses. The businesses have sought assistance and betterment yet YC SBML’s actions have demonstrated that their primary concern is increasing their profits even at the detriment and loss of the Shepherd’s Bush Market businesses.
Those market tenants who are members of FoSBM wish to retain what they currently hold. They possess Transport for London leases and seek to renew these leases within the same terms and conditions as they currently hold. Regrettably, the developer YC SBML does not wish to permit this and instead has bullishly proposed new tenancy terms and conditions that are not the same as the Transport for London leases and bring disadvantages and impairment to the market businesses.
If both the GLA and the LBHF were to compare a standard Transport for London Shepherd’s Bush Market lease that includes the Landlord & Tenant Act 1954 to that of YC SBML’s lease proposals, you would be able to identify the difference. You would conclude that the market businesses would be in a far better position to ensure their certainty, longevity, and affordability if they retain their Transport for London terms and conditions.
YC SBML’s proposed tenancy terms and conditions may appear to be complex, convoluted, and ambiguous compared to that of the Transport for London lease. Yet, it may be identified that YC SBML is attempting to:
- (i) Manipulate the overheads/payments of the leaseholders/licensees through rents, services charges, additional rents, and S146 Notices.
- (ii) Increase the landlord’s ability to determine tenancies with greater excuse and swiftness.
- (iii) Limit the landlord’s liabilities whilst increasing its liberties.
- (iv) Limit the market businesses’ liberties whilst increasing the businesses’ liabilities.
This last point (Point (iv)) is evident throughout YC SBML’s tenancy proposals, which are littered with terms that would weaken the market businesses’ liberties and would allow the landlord to manipulate each situation to gain the upper hand.
You may view YC SBML’s tenancy proposal in the Dropbox Link:
Schedule 2 titled ‘The Tenant’s Rights’ within YC SBML’s tenancy proposal may be viewed in the Dropbox Link:
https://www.dropbox.com/scl/fi/sp9numacg7l82iyfh8m3x/YC-SBML-Lease-Proposal-Schedule-2-The-Tenat-s-Rights.pdf?rlkey=wchwbmuqtmuts85c8hlkahkb1&dl=0
or view the below.
It may be considered alarming that YC SBML seems to have removed the Transport for London tenancy stipulation giving the tenant the right of Quiet Enjoyment The TfL clause relating to the tenant’s right of Quiet enjoyment of their premises may be found under ‘The Railway Company’s Covenants’ and reads:
THE RAILWAY COMPANY'S COVENANTS
The Railway Company hereby covenants with the Tenant as follows:-
Quiet enjoyment
(1) That save and subject to anything to the contrary in this Lease and to the Tenant paying the rents hereby reserved and observing and performing the covenants provisions and conditions contained in this Lease the Tenant may peaceably possess and enjoy the Premises during the Term without any interruption by the Railway Company or any person or persons rightfully claiming through or under it PROVIDED THAT the Railway Company shall not be liable to the Tenant for any damage loss or injury caused by the percolation of water through the Arch or by damp or other similar causes
The covenant of quiet enjoyment is an essential lease term as the tenant shall have quiet and peaceful possession of the leased premises against the lessor. The covenant ensures that the landlord is bound to refrain from action that interrupts the tenant’s beneficial enjoyment.
A tenant may value and wish to preserve their right to key attributes such as light, quality of air, peace and quiet, a shielding from interference or disturbance.
The removal of this right would be viewed as unacceptable as it would remove the tenant’s ability to protect and ensure that the tenant may enjoy their Premises without harassment or upset.
It is considered that proposed Schedule 2 titled ‘The Tenant’s Rights’ within YC SBML’s tenancy proposal holds several severe concerns, due to its intent to lessen the rights of the market businesses.
Amongst other things, point 3 of Schedule 2 within YC SBML’s tenancy proposal reads:
“The provisions of Section 62 of the Law of Property Act 1925 are excluded from this [underlease/lease] and the Tenant shall not have the benefit of any rights other than those contained in the Schedule”.
Section 62 of the Law of Property Act 1925 may be viewed via the following government weblink:
https://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/62/2021-04-29/data.pdf
It is understood that under the current Transport for London tenancy agreements the market businesses may hold the rights under the Law of Property Act 1925 that may benefit the tenants is numerous ways including (but not limited to) “….liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof...”
For example,
The right of easement, allowing the Shepherd’s Bush Market businesses right of passage to and from the tenant’s premises is essential.
It should be noted that this right of easement is critical also to those businesses that may not only hold a leasehold but also a freehold for without this right the freehold land area might become ‘landlocked’.
The use of the market road and the right to deliver to and from the tenant’s Premises is an imperative right.
The market businesses with either shop premises on the east side of the market road or stalls that are located in the middle of the market between the market road and market path have always enjoyed an additional area of land which is of 1metre depth either in front of the shop Premises or either side of the stall Premises.
The use of these land areas over several decades has established an entitlement associated with the Premises.
Some of the market businesses may have established entitlements across the years relating to the right to hold lockup/storage areas or seating areas that complement their businesses.
It has always been the tenants’ entitlement to open and close their businesses when they so desire, provided it is within the opening hours of the Shepherd’s Bush Market gates. It has been noted that the landlord may wish to remove this entitlement and instead impose when the businesses must open and close.
There is a necessity for the Shepherd’s Bush Market businesses to retain their rights under the Law of Property Act 1925. YC SBML’s proposal to exclude Section 62 of the Law of Property Act 1925 is unacceptable.
In conclusion, it is hoped that the Mayor of London will refuse permission and reject the planning application – reference GLA 2023/01093/FUL.
On behalf of our members who are tenants of the Shepherd’s Bush Market, we would kindly request for the Mayor of London to provide us with a copy of the Head Lease for the freehold land of Transport for London on the Shepherd’s Bush Market site (Viaduct/Arches and 3 metres either side of the Viaduct). This document is referred to within YC SBML’s lease proposals but has not to date been provided.
We look forward to hearing from you.
Yours sincerely,
Friends of Shepherd’s Bush Market (FoSBM)