El Socorro supermarket loses gas pipeline appeal

The content originally appeared on: Trinidad and Tobago Newsday

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AN EL SOCORRO supermarket has lost its appeal against Holiday Snacks over a pipeline being used to supply gas to the manufacturer which runs under the land owned by the supermarket.

The appeal of Energizer Supermarket was dismissed in the Privy Council on Monday by Lords Briggs, Sales, Leggatt, Burrows and Lady Rose.

Energizer complained it was not able to get approval to construct a supermarket on its land because of the gas pipeline.

In 2014, its complaint was dismissed by Justice David Harris who held that an agreement between the former landowner Sookram Boodhai and Kiss Baking Company, which owned the land next door, to allow the gas pipeline, had created an “equitable easement.”

In law, an easement is a property right that gives its holder an interest in land that’s owned by someone else.

The agreement between Kiss and Boodhai was made in 1986. The National Gas Company (NGC) agreed to supply natural gas to the baking company on the basis that NGC would own the pipeline and metering facilities.

Energizer’s managing director Jerome Boodhoo bought Boodhai’s property in 1993 and was told of the gas pipeline.

In 1996 Boodhai asked Kiss to remove the pipeline, and the next year permission for the construction of a supermarket was refused because of it. Kiss transferred the land to its subsidiary, Sweetheart (1989) Ltd, which changed its name to Holiday Snacks.

The gas pipeline still runs under the land, marked by yellow posts.

An injunction had also been granted by Harris restraining Energizer from interfering with the pipeline. The Court of Appeal also dismissed Energizer’s appeal, holding that the March agreement between Boodhai and Kiss had created an equitable easement.

The appeal court also held there was no breach of the Petroleum Act by either Kiss or Boodhai in obtaining a licence for the pipeline since one was only required for petroleum operations, and it did not prohibit a private agreement for an easement that existed before the laying and operation of the pipeline.

Justice of Appeal Gregory Smith, who delivered the ruling, also said any criminal breach of the act was insufficiently clear to render the easement unenforceable.

Also presiding over the appeal were Chief Justice Ivor Archie and Justice of Appeal Charmaine Pemberton.

“The board agrees with the lower courts that the requirements for an easement were satisfied by the March agreement,” the judgment, delivered by Lord Burrows said.

“The board also agrees with the lower courts that, on its true construction, the March agreement created an equitable easement and not a contractual licence.

“As Harris J said, it is inconceivable that Kiss would operate its commercial enterprise with the supply of gas resting on merely a revocable contractual licence; and there was nothing to suggest that Mr Boodhai did not intend the benefit of the agreement to run with the land of Kiss.

“In the board’s view, Harris J was entitled to find that Energizer had actual notice of the equitable easement. Although it would appear that this is not in dispute between the parties, it is worth clarifying for completeness that the benefit of an equitable easement passes with the transfer of the dominant tenement so that Holiday Snacks has the benefit of the easement.”

Energizer was represented by attorneys Fyard Hosein, SC, Sasha Bridgemohansingh and Aadam Hosein while attorneys Christopher Sieuchand and Sonnel David-Longe represented Holiday Snacks at the Privy Council.