89 Holland Park (Management) Ltd and Others v MS Sophie Louise Hicks

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Robert Miles
Judgment Date27 Feb 2013
Neutral Citation[2013] EWHC 391 (Ch)
Docket NumberClaim No. HC12CO4553

[2013] EWHC 391 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Rolls Building

Fetter Lane, London EC4A 1NL

Before:

Mr Robert Miles QC

(sitting as a Deputy Judge of the Chancery Division)

Claim No. HC12CO4553

Between:
(1) 89 Holland Park (Management) Limited
(2) 89 Holland Park (Flat 1) Limited
(3) Marc Nicholas Jonas
(4) Dr Michael Beverley McKie
(5) Maria Paloma Letemendia
(6) Andrew Lawson Dell
(7) Jennifer Simone Dell
Claimants
and
MS Sophie Louise Hicks
Defendant

Mr Martin Rodger QC (instructed by Pinsent Masons LLP) for the Claimants

Mr Jonathan Small QC (instructed by Mishcon de Reya) for the Defendant

Hearing dates: 19 and 20 February 2013

Mr Robert Miles QC (sitting as a Deputy High Court Judge:

Introduction

1

The First Claimant is the freehold owner of 89, Holland Park, London, W.11 ("No. 89"), a substantial Victorian house built in the 1870s and now divided into six flats. The Second to Seventh Claimants are long lessees of five of the flats. The Defendant is the owner of land adjoining No. 89 ("the Property").

2

The Claimants seek declarations that they are entitled to the benefit of certain covenants relating to the development and use of the Property contained in a deed entered into in 1968 by predecessors in title of the First Claimant and the Defendant respectively.

3

The Defendant acquired the Property in 2012 and wishes to build a house there. The Claimants contend that the covenants require the Defendant to obtain, first, the consent of the First Claimant to proposed plans, drawings and specifications before she may make any application for planning permission to develop the Property; and, second, the First Claimant's consent to her definitive plans, drawings and specifications before she may commence building. The Defendant's case is that she does not require the Claimants' consent because the covenants are not enforceable by the Claimants or, in the case of the covenant concerning planning permission, is not a covenant which binds the Defendant. Alternatively, she says that if the Claimants' consent is required, the Claimants may not withhold it unreasonably. She also disputes the standing of the Second to Seventh Defendants to enforce the covenants.

Factual narrative

4

There is no material dispute about the facts. The freehold of No. 89 was formerly owned by Brigadier Walter Radford who, in the 1960s, let the six flats in the house on leases for terms between four and six years. In 1981 Brigadier Radford began to grant long leases of the flats and by June 1989 each of the six flats had been let for terms of 125 years. Each lease required the formation of a management company to which No. 89 was to be transferred once all the flats had been demised. The First Claimant is that company.

5

On 3 August 1990 No. 89 was transferred by Brigadier Radford's wife to the First Claimant and the leases have subsequently been extended to terms of 999 years.

6

Until 10 December 1965 the Property, which is immediately adjacent to No. 89, was owned by Brigadier Radford. There was at that time no wall dividing No. 89 from the Property. There is a minor dispute about whether it was part of the garden of No. 89 or even part of the plot on which No. 89 stood. On the basis of the drawings contained in the transfer dated 10 December 1965 (referred to further below) and the terms of the transfer, I find that the Property was part of the garden of No. 89. In that regard, clause 3(ii) of that instrument required a wall to be built "to divide the [Property] from the remainder of the garden of [No. 89]".

7

The Property comprises a narrow strip about 23 feet wide where it adjoins Holland Park and about 140 feet deep and it widens a little towards the rear of the site. It is bounded on the north by No. 89, from which it is now separated by a brick wall, on the south by Abbotsbury House (a 1960s apartment building), on the west by the gardens of houses on Woodford Square, and on the east by the public highway, Holland Park.

8

The Property was conveyed by Brigadier Radford to Mrs France de Froberville by a transfer dated 10 December 1965 ("the 1965 Transfer"). It is now separately registered at HM Land Registry, described as "land on the west side of Holland Park, Kensington". Restrictive covenants are noted in the Charges Register as having been contained in the 1965 Transfer and as being varied by a subsequent deed between Brigadier Radford and Mrs de Froberville dated 10 July 1968 (to which I shall refer further below).

9

Though planning consent for a single dwelling was granted on six separate occasions between 1961 and 1971, the Property has never been built on. Before the 1965 Transfer planning permission had twice been granted (on 17 March 1961 and again on 18 March 1965) for the erection on the Property of a single dwelling with a built-in garage.

10

In the 1965 Transfer Mrs de Froberville covenanted to build the building for which Brigadier Radford had obtained consent within two years. She also covenanted to build a wall dividing the Property from No. 89. The 1965 Transfer included a right of pre-emption in favour of Brigadier Radford which had restricted Mrs de Froberville's ability to sell the Property without developing it.

11

After the 1965 Transfer and before the 10 July 1968 deed a further three applications for planning permission were made by Mrs de Froberville, two of which were successful.

12

Mrs de Froberville did not however build the building within two years of the 1965 Transfer. A supplementary deed was entered into on 10 January 1968, by which fresh drawings for a proposed building were agreed, and Mrs de Froberville covenanted forthwith to erect it. No copy of that deed has survived but it is mentioned in the further deed of 1968 to which I refer below. It is not known whether it included a time limit for the work, the original period of two years provided by the 1965 Transfer having run out on 10 December 1967.

13

On 10 July 1968 a second supplemental deed was executed by the same parties, Mrs de Froberville now being referred to as "the Building Owner" and Brigadier Radford as the "Adjoining Owner". It was expressed to be supplemental to the 1965 Transfer and the deed of 10 January 1968. It is the covenants in this second deed ("the l968 Deed") which give rise to the current dispute. The 1968 Deed recorded the Adjoining Owner's approval of specified drawings of a different dwelling and included a covenant by Mrs de Froberville to complete it within 18 months. That dwelling was to be to a design which had already been prepared by her architects but for which planning permission had not yet been obtained. Planning permission for that design was granted on 16 September 1968 but Mrs de Froberville then sold the Property, without undertaking any building, to a Miss Lange.

14

The Defendant acquired the Property at auction from the estate of Miss Lange, and became the registered proprietor on 14 February 2012.

The 1965 Transfer

15

I shall now set out the relevant parts of the instruments, starting with the 1965 Deed (omitting immaterial parts).

16

Clause 1 provided:

"In consideration of six thousand five hundred pounds (£6,500.00) the receipt whereof is hereby acknowledged I [Brigadier Radford] … (hereinafter called "the Vendor") which expression shall include his successors in title owner and owners for the time being of No. 89 Holland Park London W.11) as beneficial owner hereby transfer to [Mrs de Froberville] … (hereinafter called "the Purchaser") the land shown and coloured red on the plan bound up within and known as Land Adjoining 89 Holland Park London W11."

17

By clause 2, the Purchaser "so as to bind the land hereby transferred and to benefit the Vendors [sic] property known as No. 89 Holland Park London W11 hereby covenants for herself and her successors in title with the Vendor as follows". Clause 2 then set out covenants (i) that the land and any buildings to be erected thereon would be used for the purpose of one or two private dwelling-houses and one or two garages only and as to the use of the land, and (ii) when "the Transferee" shall have erected a wall "to divide the said land from the remainder of the garden of No 89 Holland Park", that she and her successors would thereafter maintain it in good and substantial repair. (I note in passing that the Purchaser is here called "the Transferee" a term not otherwise defined – this is one of a number of drafting infelicities.)

18

Clause 3 started with the words "[t]he Purchaser for herself and her personal representatives hereby covenants with the Vendor as follows". There then followed several separate covenants.

19

The first, sub-clause 3(i), was a covenant that the Purchaser would not sell the land prior to its development subject to a proviso that if she was unable within the period of two years to complete the development from some cause not within her control she could then offer to resell the land to the Vendor for £6,500 plus the value of any works completed by then, with the Vendor to have the option whether to accept or decline such offer, and if he declined the Purchaser to be at liberty to sell the land "to any person approved by the Vendor subject nevertheless to the same conditions and covenants as to development and user of the said land as are contained herein including stipulation for acquiring the approval of the Vendor of any modification in the approved plans and definitive plans and working drawings and specifications of the said Building".

20

By sub-clause 3(ii) the Purchaser covenanted to erect the said buildings in accordance with planning permission already granted or to be granted in respect of plans which had already been approved "provided that subject as aforesaid if the Purchaser shall wish to procure any modification of the approved plans she shall make...

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4 cases
  • 89 Holland Park Management Ltd v Sophie Louise Hicks
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 16 June 2020
    ...withheld. The dispute was determined by Mr Robert Miles QC, sitting as a judge of the Chancery Division. His decision is at [2013] EWHC 391 (Ch). He decided that both the Company and the leaseholders were entitled to enforce the covenants. The intention of the covenants was to benefit the ......
  • Singh v Rainbow Court Townhouses Ltd
    • United Kingdom
    • Privy Council
    • 19 July 2018
    ...and did not have to be dealt with. Further, on the question of locus standi, we think that [ 89 Holland Park (Management Ltd) v Hicks [2013] EWHC 391 (Ch)] and section 67 [of the Conveyancing and Law of Property Act cap 56:01] provide a complete answer. So in those circumstances, we do not......
  • Sophie Louise Hicks v 89 Holland Park (Management) Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 29 April 2021
    ...the defendant to refuse consent in its absolute discretion. That claim concluded in a Judgment, the neutral citation for which is [2013] EWHC 391 (Ch), delivered by Mr. Robert Miles QC sitting as a deputy judge of the Chancery Division (First Judgment”). His conclusion was that both the de......
  • Decision Nº LP 15 2016. Upper Tribunal (Lands Chamber), 23-08-2017 , [2017] UKUT 0243 (LC)
    • United Kingdom
    • Upper Tribunal (Lands Chamber)
    • 23 August 2017
    ...such approval must not be unreasonably withheld. Reference was made in submissions to 89 Holland Park (Management) Limited v Hicks [2013] EWHC 391 (Ch), but the relevant authorities are discussed in Lewison: The Interpretation of Contracts (5th ed) 2011 at para 10.14 and it may be that the ......
1 firm's commentaries
  • Developments: When A Neighbour Can Unreasonably Withhold Consent
    • United Kingdom
    • Mondaq United Kingdom
    • 9 July 2013
    ...the time being of the land of the covenantee intended to be benefited. Footnote * 89 Holland Park (Management) Ltd and others v Hicks [2013] EWHC 391 (Ch) The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your ......

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