Churchill v Temple
| Jurisdiction | England & Wales |
| Judgment Date | 22 October 2010 |
| Neutral Citation | [2010] EWHC 3369 (Ch) |
| Docket Number | Claim No: HC09CO46696 |
| Court | Chancery Division |
| Date | 22 October 2010 |
[2010] EWHC 3369 (Ch)
Claim No: HC09CO46696
Mr. Lawrence Power, instructed by Messrs. Fisher Meredith, appeared for the claimant.
Mr. Andrew Davies, instructed by Messrs. Boyes, Sutton and Perry and by Messrs B.K. Ellis & Co, appeared for the defendants
Approved judgment
This is an application by Mr. Trevor Churchill, the owner of 1A Loom Lane, Radlett, Hertfordshire for declarations relating to the enforceability, meaning and effect of a restrictive covenant in a Conveyance dated 6 th March 1967 ("the Conveyance") which first transferred this land as a separate building plot. The defendants, Mr. and Mrs. Temple and Ms. Azam, own the neighbouring properties, 1 and 3 Loom Lane, and 1A Loom Lane must have been part of their back gardens.
The Conveyance was between Peter Auckland Strong and Kathleen Mary Strong, described as being "formerly of 3 Oakridge Avenue, Radlett …., but now 4 Aldenham Avenue, Radlett (hereinafter called "the Vendors") and Professor Samuel James Taylor and Maureen Patricia Taylor as purchasers. The land was described as being partly belonging to "Wych Elms", 1 Loom Lane, and partly to "Clifton", 3 Loom Lane, and it includes an entrance drive running between these properties from Loom Lane to the plot. Plans attached to the Conveyance, dated December 1966, described the land as a building plot and had the outline of a proposed house to be built on it.
Clause 2 of the Conveyance refers explicitly to Wych Elms as being the adjoining land of the Vendors. Since it refers to "the owner or owners for the time being of… Clifton", it seems probable that Mr. and Mrs. Strong did not own that property, other than the area which had become part of the building plot conveyed. There is no evidence as to the ownership of the remaining part of Clifton.
Later in the same year, on 10 th October 1967, Mr. and Mrs. Strong conveyed Wych Elms to Mr. Cecil Johnson. The conveyance referred to it as "adjoining certain building land", which must have been a reference to the building plot. It is not known when Professor and Mrs. Taylor built their house. Wych Elms was transferred to Mr. and Mrs. Temple on 10 th October 1995.
No other background information is available. It is not certain whether, in March 1967, Mr. and Mrs. Strong intended to sell the property (or if so when), or to retain it, for example for letting purposes. The fact that the property was sold seven months later makes it perhaps more likely that this was their intention in March 1967. It appears from information obtained from a website that Mr. and Mrs. Strong, who were both born in 1911, died in 2002 and 1989 respectively.
By clause 6 of the Conveyance, the purchasers jointly and separately covenanted, for themselves and their successors in title, with the vendors and their successors in title so as to bind so far as may be the property conveyed "into whosoever (sic) hands the same may come", that the purchasers and their successors in title would observe and perform the covenants in the 1 st Schedule.
Paragraphs 1 and 2 of the 1 st Schedule imposed obligations relating to fencing and the construction of a soil drain and manhole to join up the soil drains from 1 and 3 Loom Lane for the benefit and use of the owners or occupiers of those properties.
Paragraphs 3 to 5 were in the following terms:—
"3. NOT to erect or maintain on the land hereby conveyed any building other than a single private dwellinghouse with or without garages or other usual outbuildings and/or garden sheds and greenhouses
NO dwellinghouse shall be erected or maintained upon any part of the land hereby conveyed which shall not be in accordance as to situation character elevation workmanship materials sewers drains and other sanitary works with plans elevations and specifications which previous to the erection of such dwellinghouse shall have been submitted to and approved in writing by the Vendors or their surveyor such approval however not to be unreasonably withheld
NOT to make any structural alteration or addition to a permitted dwellinghouse without the written consent of the Vendors or their surveyor."
Paragraph 6 was a covenant to pay a proportion of the cost and of cleansing and maintaining the soil and surface drains.
Paragraph 7 was a covenant not to do anything which would be a nuisance or annoyance to the vendors or their successors, or person or persons owning or occupying adjacent or neighbouring land.
Paragraph 8 made the purchasers responsible for making good any damage caused to the vendors' remaining property during the construction of "a permitted dwelling house".
Mr. Churchill now wishes to demolish the building which was put up by Professor and Mrs. Taylor after their purchase of 1A Loom Lane, and to build a new house, for which he has planning permission. Both Mr. and Mrs. Temple and Ms. Azam claim to be entitled to enforce paragraphs 4 and 5 of the covenants in the Conveyance, so as to prevent this. It is common ground that the demolition of the house would constitute a "structural alteration" within paragraph 5.
The issues between the parties are as follows:—
(1) Whether Ms. Azam is entitled to enforce the covenants in paragraphs 4 and 5.
(2) Whether the requirement in paragraphs 4 and 5 for the approval or written consent "of the Vendors or their surveyor" should be construed as meaning the approval or written consent of the vendors or their successors in title or their respective surveyors.
(3) If not, whether the effect of the death of the vendors is (a) to free the purchasers or their successors from the need to obtain consent or (b) to make it impossible for them to obtain such consent, and therefore to make the prohibitions in paragraphs 4 and 5 absolute.
(4) Whether it was an implied term of paragraph 5 that consent should not be unreasonably withheld.
It is not disputed that the benefit of the covenants was assigned by Mr. and Mrs. Strong to Mr. Johnson, and by Mr. Johnson to Mr. and Mrs. Temple, and that Mr. and Mrs. Temple are entitled to enforce them. But there is no such assignment in favour of Ms. Azam. It is nevertheless submitted on her behalf that she is entitled to enforce it under section 56 of the Law of Property Act 1925. It may be arguable, on the basis of what was said by the Court of Appeal in Beswick v. Beswick [1966] Ch. 538, that a 3 rd party to a contract relating to real property can enforce a promise made for his benefit, although this is doubtful: see Megarry and Wade 7 th ed. paragraph 32–007. But the provisions of paragraphs 4 and 5 of the 1 st Schedule are not expressed to be for the benefit of the then owners of 3 Loom Lane. Therefore section 56 does not assist Ms. Azam, and she has no right to enforce these covenants.
Turning to the construction of paragraphs 4 and 5, each provides clearly that approval or consent must be sought from "the Vendors or their surveyor", "the Vendors" having earlier been defined as Mr. and Mrs. Strong. Neither paragraph makes any reference to the successors in title of the vendors, or to any surveyor whom they might employ.
Both parties relied on the principles of construction explained in Investors Compensation Scheme Limited v. West Bromwich Building Society [1998] 1 W.L.R. 896 at 912–3, in which Lord Hoffmann approved the well-known dictum of Lord Diplock in Antaios Compani Naviera S.A. v. Salen Rederier AB [1985] A.C. 191, 201 about the construction of provisions which, read literally, would be absurd, and also on later well-known authorities including B.C.C.I. v. Ali [2002] 1 A.C. 251.
There are several previous cases in which the court has had to consider a similar issue, that is whether a covenant of this kind involving a prohibition on some use of the purchaser's land unless consented to by the vendor, was to be construed as requiring the consent of the vendor's successors in title.
In Bell v. Norman C. Ashton Limited (1956) 7 P. & C.R. 359, which concerned a building scheme in Leeds, the conveyance provided:—
"(7) Except with the written consent of the vendors (who shall have the power to authorise the erection and user of buildings for the purpose of retail sale shops on any of the lots abutting upon Otley Road) no part of the estate or any building thereon shall be used for any other purpose than that of a garden or private dwelling-house and no other than detached or semi-detached houses with outbuildings ancillary thereto shall be erected upon the said estate and not more than two houses shall be erected on any one plot and no dwelling-house or other building erected upon the said estate shall cost less than £400 (exclusive of the cost of the land) … and every dwelling-house or other building erected on the said estate shall be erected according to an elevation and design to be approved of by the vendors their heirs or assigns." (my emphasis)
Harman J. rejected the contention of the owner that the consent of the personal representative of the deceased vendor sufficed: it was clear from the covenant that the draftsman referred to the vendor's heirs when that was what was intended.
In Mahon v. Sims [2005] 3 E.G.L.R. 67, Hart J. had to consider the following covenant:—
"The Transferees hereby jointly and severally covenant with the Transferors to the intent so as to bind the land hereby transferred and each every part thereof into whosoever hands the same may come and to benefit and protect the Transferor's property known as … and lands therewith not to use the property hereby transferred...
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