High Court of Australia Barwick CJ McTiernan, Menzies, Windeyer and Walsh JJ. Arndale (Kilkenny) Pty Ltd v Gaetjens ORDER Appeal dismissed with costs. Judgment reserved. Nov. 10. Barwick CJ and Menzies J. The appellant, the owner of the Arndale shopping centre, has been restrained at the suit of certain tenants of shops in the centre from erecting stalls in the pedestrian mall of the shopping centre so as to deprive the plaintiffs from using or enjoying the areas which such stalls would occupy. It is from the order of the learned Chief Justice of the Supreme Court of South Australia [(1)] so restraining it that the unsuccessful defendant has appealed to this Court. 1. (1969) 20 L.G.R.A. 21. The tenants rely upon the following provisions of leases in common form: "ARNDALE (KILKENNY) PROPRIETARY LIMITED DOTH HEREBY LEASE" to the tenant "ALL THOSE premises forming part of the Shopping Centre known as "The Arndale Centre, Kilkenny" erected on part of the land comprised and described in the aforesaid Certificates of Title and being the premises more particularly described in the plan deposited in the General Registry Office at Adelaide numbered 272 of 1964 and therein referred to as Shop No. 15 and being portion of C/T 3169/74 together with all the plant and equipment fixtures and fittings of the Lessor therein (all of which are, except where there is something in the subject or context inconsistent therewith, included in the expression "the demised premises" or "the premises") AND ALSO TOGETHER WITH the right at all times during the said term for the Lessee and its permitted assigns and its or their servants employees tenants occupiers customers and invitees during usual business hours to use and enjoy the common areas (as hereinafter defined) and being other portion of C/T 3169/74 and the whole of Cs/T 3117/57 and 3116/151 in common with the Lessor and its assigns and its and their servants employees lessees tenants occupiers customers invitees and all other persons authorised by it or them TO BE HELD by the Lessee as Lessee for the term of ten years commencing from and including the 1st day of December 1963" at stated rentals. The pedestrian mall is part of "the common areas" as defined, viz: "Common Areas" shall include all parking areas, entrances and exits thereof, driveways, service roads, loading areas, trucks service ways or tunnels, overpass and footpaths, pedestrian malls, courts, stairs, ramps, rest rooms, comfort and first-aid stations, toilets, washrooms, lavatories, and parcel pick-up stations, retaining walls and landscaped areas. It is convenient to set out also cl. 8 (1) of the lease upon which the appellant relies. It is as follows: 8. (1) The Lessor hereby reserves the right at any time to make alterations or additions to (and to build additional storeys on) the Building of which the premises form a part and to build adjoining the same. The Lessor also reserves the right to construct other buildings or common areas in the Shopping Centre from time to time and to make alterations thereto or additions thereto and to build additional storeys on any such building or buildings and to build adjoining the same. It is apparent from the lease itself that the appellant has let shops in the centre to a variety of shopkeepers and has retained the so-called common areas for the community of shopkeepers and for itself. The shops front the pedestrian mall which is some 17,500 square feet in area and is much more than a mere means of access to the shops. It is part of the building, paved and covered. It is fully enclosed; it has outside doors which can be shut and locked; it is air-conditioned. It was designed to be used, and has been used, for displays and other promotional activities run by the Merchants' Association, to which all shopkeepers belong. Each tenant pays a proportion of the total outgoing incurred by the appellant in respect of the shopping centre, including the cost of operating and maintaining the common areas. It is obvious that the use and enjoyment of the mall is part of the attraction of becoming a tenant of a shop in the shopping centre. Prima facie, for the appellant to take for itself part of the pedestrian mall would be to deny to the tenants as a whole the use and enjoyment of the area so taken and would be an infringement of the rights of tenants. Two grounds, however, were advanced to support such an appropriation. The first was that it would not infringe the rights of tenants under the leases containing the provisions aforesaid if the loss of the area so appropriated would not interfere substantially with the use and enjoyment of the mall for the purposes for which it was designed. This argument we reject. It is clear, we think, that the right of each lessee is to use and enjoy, in common with other tenants and with the owner, the whole of the defined common areas and, unless there is in the lease a positive authorization for the owner to take away part of a common area and to occupy it to the exclusion of the tenants, the appellant cannot do what it proposes. Reference was made to cases where it has been held that the obstruction to a minor degree of an easement of way will not be restrained so long as there is no substantial interference with the right of passageway, but this principle seems to us to have no application here where the tenants' express rights are to use and enjoy as a common area a defined area of the appellant's land. Any reduction of that area would, we think, require a positive authorization. The defendant, however, asserts such a positive authorization and points to cl. 8 (1) of the lease as authorizing it to do what it proposes. In our opinion this clause does not authorize the appellant to appropriate part of the common areas for itself and to exclude the tenants therefrom. What it does authorize is not a matter which it is necessary to determine now. Accordingly, we would dismiss the appeal. McTiernan J. I am of the opinion that the appeal should be dismissed. I agree with the judgment delivered by the learned Chief Justice of South Australia and having nothing to add to his Honour's reasons. Windeyer J. I need not repeat the facts. The pedestrian mall, as it was called, is a "common area" which tenants of shops in the shopping centre, their servants, customers and others were by the terms of the leases of the shops given a right to use and enjoy. The word "mall" meant originally an alley for ball games played with a mallet, in particular the game called pall-mall. A mall has now come to mean a passage or promenade. In the lease the mall is an open area, fronted by shops on either side. Until recently, when the word "mall" came into vogue, the premises would have ordinarily been called an arcade. The appellant remained the proprietor of the mall. The grant by it in the demise to each shop tenant of the right, in common with others, to use this mall has the general characteristics of an easement: Miller v. Emcer Products Ltd [(2)] . But it is not necessary to give it the name of one of the ordinary forms of easements: cf. Re Ellenborough Park [(3)] . It is not a mere right of way, a passage by which authorized persons may get from one place to another. It is not simply a means of access to a particular shop or shops. It is an open space, by which people may pass and repass and where they may, if they wish, loiter and linger looking at the shops on either side. It must be kept as an open space, if the shopkeepers, customers and prospective customers collectively, are to have the full benefit of the common right to use and enjoy it. To put another row of shops down the centre would clearly substantially alter it. That only one or two such shops are at present contemplated, and not a whole row, does not I think conclude the matter. It was said for the appellant that a right to use and enjoy the common area does not mean that every square inch of it must be kept open. It was urged that therefore the question was simply whether the area that the appellant proposed to take was small in comparison with the area of the whole. But the question is not to be decided by doing proportion sums or by applying decisions concerning the disturbance of rights of way. 1. [1956] Ch. 304. 2. [1956] Ch. 131. I do not say that what was granted was a right to walk upon every square inch of the mall. But I do say that, as I interpret the lease, nothing can lawfully be built upon any part of it unless it be to make it more safe, more convenient or more pleasant for use and enjoyment by persons given the right to use and enjoy it. The presence of a fountain in one place and of some flowering pot plants in another, both of which were mentioned as being there, or the provision of such things as a fire-hose or fire-extinguishers, a telephonebox or a noticeboard, as suggested in the course of argument, would not I would think detract from the rights in the mall granted to tenants by their leases. Whether or not their rights be interfered with does not depend simply on whether anything built in the mall is large or small. That would no doubt be one circumstance: but the overriding factor is not its size but its nature, whether it would detract from the right granted by the lease. What we have to consider is whether or not what the lessor proposes to do would be a contravention of an implied negative covenant not to do anything which will frustrate its tenants from enjoying the rights expressly given by the lease. This question does not depend upon the doctrine of non-derogation from a grant. There what is complained of is not the obstruction of an easement, an incorporeal interest expressly granted, but derogation from the grant of a corporeal interest, by the invasion of an implied immunity from interference with the use of premises for the purpose for which they were demised. I therefore put on one side the cases referred to by Street J. in Gordon v. Lidcombe Developments Pty Ltd [(4)] . I have found his Honour's learned judgment helpful, but mainly because of the contrast between the situation in that case and that of the present case. Here the question is whether the lessor can appropriate to itself, and for its own purposes not the common good, a part of the common area and exclude those to whom it had granted a common right to have the use and enjoyment of the whole area from enjoying this right. In my opinion it cannot lawfully do so. 1. [1966] 2 N.S.W.R. 9. I should add that I do not read cl. 8 of the lease as enabling the lessor to do what it proposes. It can alter the existing building and add to it; and it can alter and add to any building that is added to the existing building: but I cannot accept the proposition that this means that it can do this in disregard of the rights of its tenants in the premises leased to them or of rights expressly granted as appurtenant thereto. In my opinion the appeal should be dismissed. Walsh J. The orders against which this appeal is brought were made in the Supreme Court of South Australia by Bray C.J. In his reasons, after stating that it was not necessary to hold that the defendant could in no case alter the existing common areas, his Honour said [(5)] : "In my view it cannot do so by abstracting part of them for the exclusive use of itself or one of its tenants or licensees." In my opinion that was a correct statement of the effect of the relevant provisions of the leases granted by the defendant. Those provisions are set out in the reasons for judgment in this appeal prepared by the Chief Justice and Menzies J. which I have had the advantage of reading. I agree with their conclusions as to the construction and effect of the provisions of the common form leases by which the defendant (the appellant) granted to the lessees the right "at all times during the said term for the Lessee and its permitted assigns and its or their servants employees tenants occupiers customers and invitees during usual business hours to use and enjoy the common areas" in common with the lessor &c. I agree also with the opinion of their Honours that cl. 8 (1) of the lease, upon which the appellant relied, does not authorize it to do what it proposes to do. 1. (1969) 20 L.G.R.A., at p. 31. I am of opinion that once those questions of construction have been resolved in favour of the respondents, it follows that the action which the appellant threatened and intended to take would constitute an infringement of the rights of the respondents and of other lessees on whose behalf the respondents sued. I am of opinion also that this would be an infringement which the Court ought to restrain by injunction. The suit was between the immediate parties to the leases. It was brought to enforce a right to use and enjoy in common with others defined areas of land for the duration of the terms of the leases. The right is, as Bray C.J. said, something which is much more than a mere right of way. It was argued for the appellant that it was a right of the nature of an easement and that there would be no infringement of it or, at any rate, no such infringement as would warrant the granting by the Court of an injunction, unless such a substantial degree of interference with the exercise of the right took place or was threatened that it could be said that a reasonable use and enjoyment of the common areas was or would be no longer available to the lessees. In my opinion this argument should not be accepted. Where what has been granted is a right to use and enjoy in common with the grantor and others an area of land belonging to the grantor (not merely a right to pass and repass over such land) the attempt by the grantor to take exclusive possession of a portion of that land or to grant exclusive possession of it to a third party is clearly a threatened infringement of the right of the grantees. It is an attempt to deprive the grantees of part of what has been granted to them. In my opinion this may properly be restrained by injunction. I do not think that it is material that the portion of the land to which the threatened denial of the right of the lessees extends is not, in relation to the whole of the land over which the right has been granted, a large area. The grantor cannot be permitted, in my opinion, either to say that it is entitled to take away part of what it has granted provided that it does not take away very much or to say that, unless it abstracts a large part of the land from the use and enjoyment of the lessees, their only remedy is to sue for damages. In my opinion the appeal should be dismissed.