Bath Rugby Ltd v Caroline Greenwood
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Newey,Lady Justice King |
| Judgment Date | 21 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1927 |
| Docket Number | Case No: CA-2021-000406 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1927
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
His Honour Judge Paul Matthews (sitting as a Judge of the High Court)
[2020] EWHC 2662 (Ch) and [2020] EWHC 2856 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
Lord Justice Newey
and
Lord Justice Nugee
Case No: CA-2021-000406
and
Tom Weekes QC (instructed by Royds Withy King LLP) for the 1 st Appellant
Martin Hutchings QC and Harriet Holmes (instructed by Clarke Willmott LLP) for the 2 nd Appellant
William Moffett (instructed by Stone King LLP) for the Respondents
Hearing date: 5 October 2021
Approved Judgment
Introduction
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called “the Rec”, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 ( “the 1922 conveyance”). That turns on the question whether there is anyone who can now claim to be entitled to the benefit of the covenant, and that in turn depends on whether the effect of the 1922 conveyance was to annex the benefit of the covenant to identifiable land.
The claim was brought by Bath Rugby Ltd ( “Bath Rugby”), which has a lease of part of the Rec and operates a well-known rugby club there. It wishes to replace its existing stadium with a new, larger stadium incorporating various retail and commercial outlets, with associated car parking. It accepts that if the covenant in the 1922 conveyance is still enforceable, it is possible that the proposed new development might breach the covenant, by which the original purchaser, for itself and its successors, covenanted that nothing should be thereafter “erected, placed, built or done” on the land “which may be or grow to be a nuisance, annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood.” Its position however is that there is no-one who can now claim to have the benefit of the covenant.
Bath Rugby therefore brought the claim, pursuant to s. 84(2) of the Law of Property Act 1925 ( “ LPA 1925”), for declarations in effect that the land was free from the covenant. It joined those local residents who had claimed the benefit of the covenant, and either opposed, or at any rate did not agree to, the relief sought. The claim was heard by HHJ Paul Matthews, sitting as a Judge of the High Court in Bristol, ( “the Judge”) in September 2020. By the time of the hearing the only active opposition was from the 7 th and 8 th Defendants. The 8 th Defendant, Mr Godfrey White, is the owner of a flat forming part of a house at 77 Great Pulteney Street which overlooks the Rec at the rear; he is also a shareholder in, and director, of the 7 th Defendant, 77 Great Pulteney Street Ltd ( “77 GPS”), which owns the freehold of the house.
In a clear and erudite judgment handed down on 13 October 2020 at [2020] EWHC 2662 (Ch) ( “the Judgment” or “Jmt”), the Judge held that the effect of the 1922 conveyance was to annex the benefit of the covenant to land of the vendor and his tenants adjoining or near the Rec. That meant that Mr White and 77 GPS were each entitled to the benefit of the covenant and it was enforceable by them (among others). In a supplementary judgment dated 27 October 2020 at [2020] EWHC 2856 (Ch) the Judge dealt with consequential matters, deciding that Bath Rugby should pay the Defendants' costs on the indemnity basis, and refusing permission to appeal. These decisions were all given effect to by an Order dated 29 October 2020 making a declaration that the covenant was enforceable by Mr White and 77 GPS among others.
Bath Rugby now appeals both his substantive decision and the award of indemnity costs, with permission granted by Asplin LJ. It appeared by Mr Tom Weekes QC. Asplin LJ also allowed an application by Bath Recreation Ltd ( “Bath Recreation”), which is the current freehold owner of the Rec, to intervene in the appeal, and granted it permission to appeal as well. It appeared by Mr Martin Hutchings QC, leading Ms Harriet Holmes. Both appeals were opposed by Mr White and 77 GPS, who appeared by Mr William Moffett. I am grateful to all counsel for their arguments which covered a large number of points with commendable clarity and efficiency. As the Judge pointed out (Jmt at [6]), the decision in this case does not turn on whether development of Bath Rugby's new stadium would or would not be a breach of the covenant, or whether the covenant should be discharged or modified, or planning permission granted, far less on whether it would more generally be a good idea or not; but on a narrow point of law in what is admittedly a very technical area.
History of the Bathwick Estate
The Rec is a large open space on the east side of the River Avon in an area of Bath known as Bathwick, across the river from the historic centre of the city. It was formerly part of an estate known as the Bathwick Estate, and the Judge traced the history of the devolution of this estate, and its development, in the Judgment at [8] to [14]. It is not necessary to detail it all, but in summary William Pulteney, later Earl of Bath, bought the Manor of Bathwick in 1727, Bathwick then being a country village separated from the city by the (unbridged) River Avon. He saw the possibility of developing Bathwick into an affluent suburb of Bath, and started the process, but it was mainly developed in the latter half of the 18 th century when the estate passed first in 1767 to trustees for Frances Johnstone, a cousin of William Pulteney, and then on her death in 1782 to trustees for her daughter Henrietta Laura Pulteney, later created Countess of Bath. Frances' husband, Sir William Johnstone Pulteney, was instrumental in developing the estate with Frances and then their daughter Henrietta, first by means of a bridge, Pulteney Bridge, built across the river to give access from the city, and then some time later by laying out streets and granting building leases. One such street was Great Pulteney Street (then called Pulteney Street), leading up from the bridge, and in 1788 a building lease of No 77 was granted by Henrietta for a term of 99 years.
The estate subsequently passed to another branch of the family and into the hands of the Earl of Darlington, later 1 st Duke of Cleveland, and through him to his three sons in succession, the 2 nd, 3 rd and 4 th Dukes of Cleveland, various other parts of the estate being developed during their ownership. The 4 th (and last) Duke died in 1891 possessed of large estates in various parts of the country but childless, and under his will his Somerset estates, including the Bathwick Estate, were settled on his great-nephew Captain Francis Forester for life, with remainder in tail male. 1 On 19 July 1920 Captain Forester and his son Henry Forester executed a disentailing assurance of the Somerset estates and by an indenture of the same date they resettled them. The provisions of this resettlement ( “the 1920 resettlement”) are elaborate but in effect the land was again settled on Captain Forester for life, with remainder to Henry Forester for life, with remainders over.
Both before and after the 1920 resettlement therefore Captain Forester had a life interest vested in possession. That meant he was tenant for life for the purposes of the
Settled Land Acts 1882 to 1890, and as such had a power of sale. In 1919 by his direction the Bathwick Estate was put up for sale as a single lot by auction. The auction catalogue, which was in evidence, described the subject matter of the sale as “The Bathwick Estate” producing about £15,390 per annum from rack rents, ground rents and fee farm rents, arising out of 500 houses, 60 shops, 50 detached residences, several leading hotels, 200 modern villas and cottage property, commercial and manufacturing premises, nursery gardens and recreation enclosures, woodland and a large area of building land, extending in all to about 600 acres. It referred to the estate as “The well-known Bathwick Estate”, and to Pulteney Street as “that noted Boulevard, 100 feet wide backing onto and overlooking Henrietta Park on the North and the Bath and County Recreation Ground on the South.” The catalogue contained a detailed list of each of the individual properties comprised in the sale, including 77 Pulteney Street, then let for a term of years to a Mrs Dutch, and the Bath & County Recreation Ground, described as then let to the Bath Recreation Company on a yearly tenancy. The auction particulars were accompanied by a detailed plan which shows the extent of the Estate put up for sale. At auction however the Estate failed to sellIn 1921 Captain Forester tried again, this time putting up what was described as the first portion of the Bathwick Estate, comprising various freehold properties producing a gross rental of about £7,500 per annum, in 183 lots to be sold over 3 days. The plan accompanying the catalogue confirms that these lots only formed certain parts of the estate. Again the catalogue detailed individual properties, one of which was 77 Pulteney Street, still leased to Mrs Dutch. The Rec was not however included in the...
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