Birdlip Ltd v Hunter and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lady Justice Gloster,Lord Justice Laws |
| Judgment Date | 28 June 2016 |
| Neutral Citation | [2016] EWCA Civ 603 |
| Docket Number | Case No: A3/2015/1184 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 2016 |
[2016] EWCA Civ 603
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HIS HONOUR JUDGE BEHRENS
HC13C01161
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Lewison
and
Lady Justice Gloster
Case No: A3/2015/1184
Martin Hutchings QC (instructed by IBB Solicitors) for the Appellant
Wayne Beglan (instructed by SJS Law) for the Respondents
Hearing dates: 16/06/2016
Approved Judgment
The question raised by this appeal is whether Mr and Mrs Hunter are entitled to enforce restrictive covenants against Birdlip Ltd which has planning permission to build two houses on land that it owns in Gerrards Cross. The answer to that question turns on whether their respective properties are part of a scheme of development affected by mutually enforceable restrictive covenants.
The characteristics of such a scheme are that:
i) It applies to a defined area.
ii) Owners of properties within that area have purchased their properties from a common owner.
iii) Each of the properties is burdened by covenants which were intended to be mutually enforceable as between the several owners.
iv) The limits of that defined area are known to each of the purchasers.
v) The common owner is himself bound by the scheme, which crystallises on the occasion of the first sale of a plot within the defined area, with the consequence that he is not entitled to dispose of plots within that area otherwise than on the terms of the scheme.
vi) The effect of the scheme will bind future purchasers of land falling within the area, potentially for ever.
The dispute in the present case is whether the Hunters have established the existence of such a scheme. HH Judge Behrens held that they had. Birdlip appeals with the permission of Tomlinson LJ.
The land with which we are concerned is all in Gerrards Cross and was developed in the early years of the last century, beginning in 1906. The common owners of the land were George Frederick Hampton, a local estate agent, and William Robert Moon, a solicitor in Lincoln's Inn Fields. Birdlip's predecessor in title acquired the land which it now owns as a result of two conveyances: one dated 3 May 1909 and the other dated 18 April 1910. Both the Hunters and Birdlip own parts of what had been the single plot purchased in 1910. The Hunters' property is now called Ashlea and Birdlip's property is now called Little Orchards. Accordingly, on the footing that the covenants had been validly annexed to the land described in the covenants, the Hunters cannot rely simply on the fact of annexation in order to enforce the covenants against Birdlip. They must establish a scheme.
The 1909 conveyance has been copied and transcribed; but the 1910 conveyance exists only in an abstract of title. Both those parcels of land had been conveyed to Messrs Hampton and Moon under a single conveyance in 1906.
The 1909 conveyance recited an agreement for sale in the most general terms and then conveyed the land described in the parcels clause. That description identified the land as being in Gerrards Cross with a frontage to Layters Way, and then described its boundaries. It referred also to a plan drawn on the conveyance. That plan shows roadways and a railway line but otherwise shows only the land conveyed. The 1909 conveyance also contained a schedule of obligations introduced by the following covenants:
"AND the Purchasers for themselves their respective heirs executors administrators and assigns hereby covenant with the Vendors their heirs and assigns and other the owner or owners for the time being of the adjoining and adjacent estate now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter Gerrards Cross and Iver that the Purchasers their respective heirs and assigns will at all times hereinafter observe and perform the said stipulations and restrictions specified in the schedule hereto"
The 1910 conveyance also recited an agreement for sale in the most general terms and then conveyed the land described in the parcels clause. The land was described as being in Gerrards Cross on the north side of Bulstrode Way. Its boundaries were then described. It too referred to a plan, and said that the land formed part of the land which had been conveyed by the conveyance to Messrs Hunter and Moon of 1906. It, too, contained a schedule introduced by the following covenant (turned from the language of the abstract into what must have been the covenant):
"Covenant by the Purchaser with the intent to bind all persons in whom the hereditaments hereby conveyed should for the time being be vested … with the Vendors and the survivor of them their and his assigns and other the owners or owner for the time being of the adjoining and adjacent estates now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter Gerrards Cross and Iver that he the Purchasers their respective heirs and assigns will at all times hereinafter observe and perform the said stipulations and restrictions specified in the schedule hereto so far as the same are applicable to the hereditaments hereby conveyed."
The schedule of obligations in each of the two conveyances is similar but not identical. Some of the obligations are positive obligations and others are negative obligations. The positive obligations were:
i) A covenant to erect and for ever after maintain a close boarded fence "of a height and material to be approved by the Vendor's Surveyor."
ii) To contribute rateably to road maintenance until it became a public road repairable by the local authority.
iii) If footways became damaged by vehicles passing over them to restore the footway. In the case of the 1909 conveyance this obligation was triggered "upon being required by the owner of any lot or lots near or adjoining or by the Vendors." In the case of the 1910 conveyance the obligation was triggered "upon being required by the Vendors or by the owners of any property near or adjoining".
The negative obligations included:
i) A minimum prime cost for any building erected on the land. That cost was £500 in the case of the 1909 conveyance and £750 in the case of the 1910 conveyance.
ii) A restriction on the number of dwellings that could be erected on the land: one or two in the case of the 1909 conveyance and one in the case of the 1910 conveyance.
iii) Restrictions on the use of the land. This obligation included an obligation not to do anything which would be a damage or annoyance "to the Vendors their previous or future assigns or tenants or to the owners of any of the adjoining or adjacent property".
iv) A prohibition on erecting buildings of the land "until the plans and elevations thereof shall have been submitted to and approved of in writing by the Vendor's Surveyor whose fee for such approval … shall be paid by the person by whom the plans are submitted." In the 1910 conveyance (but not in the 1909 conveyance) this obligation has the added sentence: "Such approval is required only for the mutual benefit of all purchasers to prevent depreciation of the property by the erection of unsightly buildings e.g. the covering of roofs will be restricted to tiles or best quality green Westmoreland slates."
Each of the conveyances also contained a power to vary the covenants. In the 1909 conveyance it was expressed as the reservation of a right for the Vendors "to vary these stipulations and restrictions in regard to the remainder of the properties in the neighbourhood". In the 1910 conveyance it was expressed as a right "to vary these stipulations and restrictions so far as regards the other parts of their Estate."
The judge was also shown some 18 other conveyances of land in the area which contained obligations similar (although not identical) to those contained in the 1909 and 1910 conveyances.
In addition the judge considered, and placed heavy reliance on, the contracts for sale of two plots, called lot 38 and lot 116, made in 1908 and 1914 respectively. Each of the agreements is contained in a large piece of paper, printed on both sides. The recto contains the conditions of sale, and the verso contains a plan.
Each agreement contains an agreement to convey the property "described in the Plan on the other side hereof as Lot [38/116] but subject … to the stipulations, restrictions and covenants hereinafter mentioned." The stipulations etc. are set out in the First Schedule to the conditions of sale. They are substantially the same as those contained in the 1909 and 1910 conveyances. The conditions of sale also contain an agreement by the purchaser as follows:
"…the Purchaser shall covenant for himself, his heirs, executors, administrators and assigns with the Vendors and the survivors and survivor of them, their and his assigns and other, the owner or owners for the time being of the adjoining and adjacent estate now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter Gerard's Cross and Iver, that the Purchaser, his heirs, and assigns will at all times hereafter observe and perform the said stipulations and restrictions, but the Vendors shall not be bound to enforce or effectuate the said stipulations or restrictions or the liabilities mentioned therein."
The 1908 plan is entitled "Plan of Building Sites at Gerrards Cross, Bucks For Sale by Hampton & Sons". To the left of the heading is a note which reads "THE ESTATE BOUNDARIES ARE EDGED IN RED, AND THE SITES AS AT PRESENT STAKED OUT FOR SALE ARE COLORED PINK". The plan shows a relatively large area of land edged in red. It is bounded on the north- east by the railway; from west to east it extends from just west of Layters Way to Mill Lane – a distance of about a mile. Through the middle of the site...
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