Bryan Lund and Diana Lund (his wife) (Married Woman) (Plaintiffs/Respondents) A. J. A. Taylor & Company Ltd and R P. Taylor Ltd (Defendants/Appellants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE STAMP |
| Judgment Date | 21 February 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J0221-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 1975 |
[1975] EWCA Civ J0221-4
In The Supreme Court of Judicature
Court of Appeal
(On Appeal from The High Court of Justice Chancery Division Group A)
Lord Justice Russell
Lord Justice Stamp and
Sir John Pennycuick
MR. JOHN MUMMERY (instructed by Messrs. Stephenson & Burke of Ruislip) appeared on behalf of the Plaintiffs/Respondents.
MR. G. B. H. DILLON, Q. C. and MR. DENNIS G. RICE (instructed by Messrs. Muriss, Saywell & Co. of Northwood, Middlesex) appeared on behalf of the Defendants/Appellants.
I will ask Lord Justice Stamp to deliver the judgment of the court.
This is an appeal from an order of Foster J. granting the Plaintiffs an injunction restraining the Defendant Companies from erecting a block of flats and garages on land at Rickmansworth Road, Northwood, Middlesex which is owned by the first defendants.
It is clear that the erection of a block of flats is in terms prohibited by covenants entered into by the first defendants' predecessor in title in respect of the land on which the first defendants' wish to erect the block and in respect of which they are now the registered proprietors. The second defendants come into the picture because they are the builders. For the sake of simplicity we will refer to the first defendants as "the Defendants". The Plaintiffs own land nearby.
The Defendants and the Plaintiffs derive title from a common vendor W. A. Telling Limited who purchased what was called the "Northwood Grange Estate" and which at the time of their purchase, which was completed by a conveyance dated the 24th June 1932, consisted of a dwellinghouse known as "The Grange" with its outbuildings and grounds of an area of a little over 6 acres at Northwood in Middlesex. Tellings sold off the estate to purchasers and on the respective sales to the Plaintiffs and to the Defendants' predecessors in title exacted from them covenants in a similar form. The question is whether these covenants are reciprocally enforceable between the Plaintiffs and the Defendants. It is the submission of the Plaintiffs and it was accepted by the learned Judge that Tellings established a building scheme or "local law" by the effect of which restrictive covenants entered into by the several purchasers became enforceable by each of them against the others.
Tellings title was dervied from a Conveyance made in 1904 whereby the property conveyed to Tellings by the conveyance of the 24th June 1953 had been conveyed to Tellings' predecessors in title under the description "All the messuage or dwelling house known as 'The Grange' with the domestic offices, stables and other buildings cottage kitchen garden pleasure grounds and shrubberies at Northwood in the Parish of Ruislip in the County of Middlesex."
So purchasers from Tellings, or their solicitors, must have become aware of what was meant by "the Northwood Grange Estate". The total area was between 6 and 7 acres and it was delineated on a plan drawn on the 1904 Conveyance.
The Estate was bounded to the South by Green Lane to the South-West by Rickmansworth Road and to the North-west by Dene Road. The boundary to the East ran along a, line running from Green Lane to Dene Road. The Grange itself lay near the Eastern boundary of the Estate.
An Architect, a MR. Boddy, was retained by Tellings in relation to the development. He prepared a plan of the estate which on the estate plan was described as "The Grange Estate", Northwood. This plan (which we will call "the Estate Plan") is in evidence. It shows an intended continuous building line on the estate running from the South- East corner of the estate along the whole length of Green Lane to the corner of Green Lane and Rickmansworth Road then along Rickmansworth Road to the corner of Rickmansworth Road and Dene Road and then along Dene Road to the North- East corner of the Estate. Delineated on the plan are 23 more or less rectangular plots of land numbered 1 to 23. Except that there was a gap between plot 1 (at the South- East comer on Green Lane) and plot 2 the plots arenumbered consecutively 1 to 25. The picture is one of an almost, continuous line of building plots along Green Lane, Rickmansworth Road and Dene Road. Each plot was or a depth greatly exceeding its width.
The numbered plots do not, extend in depth from the roads so as to embrace the whole or the estate there being left a considerable area - perhaps a quarter of the whole estate - surrounding the Grange itself which is not plotted in numbered plots. There is, however, an additional unnumbered plot shown immediately behind Plot No. 1 and behind or to the East of "The Grange". This latter plot was destined for a MR. Telling and we will call it "MR. Telling's plot". On 6 of the numbered plots the site of houses to be built or already built is shown.
The Estate Plan, or a copy of it, was on the 14th October 1932 sent by MR. Boddy to the Engineer and purveyor to the Ruislip Northwood Urban District under cover of S letter in these terms:-
"Re The Grange Estate, Northwood. I now enclose plan of the proposed lay-out for the above estate and shall be glad if the area may be treated as one self contained unit. The area of the estate as existing is 6.376 acres to which is added an additional piece at the north end of Dene Road, and this including half the width of the roads adjoining the estate adds another half acre, making in all over 63/4 acres.
As you will see the estate is planned for 23 Plots, and including the house itself make a total of 24. This is within the Schedule of four houses to the acre. I enclose Plans of Houses for Plots Nos. 16, 18 and 19 for approval".
The learned Judge in the Court below gave a careful description of the dealings by Tellings with the several plots. For the purposes of this judgment it is sufficient to say thatthere were departures from the Plan. Of the 23 Plots the site of Plots 10 and 11 were used for a drive giving access to "The Grange" from Rickmansworth Road. Plots 14 and 15 were amalgamated. Only one house was "built on plots 22 and 23 and the Judge had no evidence regarding the title to these two plots. It also appears from the Land Registry General Map by reference to which parcels of the estate were subsequently registered that there were modifications in the size and shape of some of the plots. Although we have referred to the Estate Plan at some length it is important to emphasise that there was no evidence before the Judge that any of the purchasers from Tellings of any of the numbered lots ever had a sight of it.
Plots were conveyed to purchasers by Tellings as follows:- 19th August 1932, Plot 4; 5th September 1933, Plot 20; 27th August 1934, Plot 3; 15th October 1934, Plot 1; 13th June 1935, Plot 2; 6th November,1935, Plot 7; 25th November 1935, Plot 19; 26th May 1936, Plot 5; 28th May 1936, Plot 6; 27th November, 1936 Plot 8; 18th December 1936, Plot 18; 16th February 1937, plot 13; 1st September 1937, Plot 17; 10th September:1937, Plot 16; 26th October 1937, Plot 14; 31st January 1938, Plot 9; 12th October, 1936 Plot 12.
Each of these conveyances contained covenants by the pur-chaser, the terms of which we will refer to later in this judgment, in substance first to maintain a suitable live hedge or fence along the sides of the plot conveyed to him, second not to erect any building upon the land conveyed to him except in conformity with plans previously approved by Tellings, third that no building erected should be used otherwise than as a private dwelling house or professional residence and should not be converted into flats and fourth that the property conveyedshould not be used so as to "become a nuisance or annoyance "to the owners or occupiers of other premises forming part of the Vendors said Grange Estate."
The development attracted some attention in the neighbourhood for there appeared in an issue in a local newspaper on the 16th September 1932 an article containing reference to it and to a modern house being erected facing Green Lane and an expression of hope that the trees would not have to be sacrificed. In the course of a re-assuring letter from MR. Boddy appearing in the same paper three weeks later Mr. Boddy said that his instructions were "to preserve the trees" in his suggested lay out. This is reflected in a fifth covenant appearing in most but not all the conveyances not to cut or lop trees upon the land conveyed without the permission of the Vendors such permission not to be unreasonably withheld. It is convenient to record in this connection that there was on the un plotted part of the Estate an area known as "the Spinney".
We must also refer to an article appearing in the issue of the 25th May 1934 of that same newspaper. In that article the writer rejoiced that the Grange itself was not to he pulled down stating that Mrs. Garrett, the purchaser, intended to allow the use of the rooms on the ground floor for parochial meetings mid that there would be two flats on the first floor.
The sales by Tellings to the Plaintiffs' predecessor in title and to the Defendants' predecessor in title were completed by conveyance which though they contained to an Estate Plan - and there is no evidence that the Purchasers ever saw an Estate Plan - indicate a sale of the estate or part of it in plots. The land of which the Defendants are now theregistered proprietors consisted of plots 13, 14 and 15.
Plot No. 13 conveyed by the Conveyance of the 16th February 1937, was the first of the plots to be acquired by a predecessor in title of the Defendants. By that conveyance Plot No. 13 was conveyed to one Chivers by the following description "All that piece or parcel of land situate...
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