Constance Long Term Holdings Ltd v The Most Noble Gerald Cavendish 6th Duke of Westminster and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ramsey |
| Judgment Date | 29 November 2012 |
| Neutral Citation | [2012] EWHC 3434 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-12-247 |
| Date | 29 November 2012 |
[2012] EWHC 3434 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Ramsey
Case No: HT-12-247
Christopher Pymont QC and Gabrielle Higgins (instructed by Stephenson Harwood LLP) for the Claimant
Guy Fetherstonhaugh QC, and Adam Rosenthal (instructed by Boodle Hatfield) for the Defendants
Introduction
In these proceedings the Claimant, the freehold owner of a Property in Chester Row, London SW1 ("the Property") which is within the Grosvenor Estate, seeks declarations concerning the entitlement of the Defendant ("Grosvenor Estate") to withhold consent under an Estate Management Scheme in relation to a particular aspect of work which the Claimant proposes to carry out to the Property.
The Claimant is a Guernsey company, the shares in which are held under a pension trust arrangement for Mr George Papamarkakis. In December 2009 the Claimant purchased a long lease of the Property with a view to modernising it and subsequently renting it to Mr Papamarkakis as a home for him, his wife and his two daughters.
In December 2010 the Claimant purchased the freehold of the Property from the Grosvenor Estate under legislation initially enacted in the Leasehold Reform Act 1967 ("the 1967 Act"). The 1967 Act made provision for the retention of management powers by a common landlord of an estate area for the common benefit of properties within that area. The statutory purpose of an estate management scheme was set out in section 19(1) of the 1967 Act as being:
" to maintain adequate standards of appearance and amenity and regulate redevelopment in the area in the event of tenants acquiring the Landlord's interest in their house and premises."
In this case the relevant scheme is the Grosvenor Belgravia Estate Management Scheme which was approved by the High Court on 5 December 1973 ("the Scheme"). The Scheme sets out covenants which bind the Claimant and the owners of the other properties covered by the Scheme. Those covenants include the following provision at clause 17 of the Scheme:
" The owner shall not make any alteration in the construction height elevation or external architectural appearance of the enfranchised Property or any part thereof nor enclose the portico (if any) thereof nor cut or alter any of the exterior or the interior load bearing walls or timbers thereof nor erect or build any additional or substituted building or erection thereon without the previous written consent of the Landlords or their Estate Surveyor (such consent not to be unreasonably withheld)."
Background
In March 2011 PTP Architects ("PTP") acting on behalf of the Claimant wrote to Mr Dylan Pritchard, a building surveyor in the North Belgravia Team of Grosvenor Estate, enclosing drawings showing work which the Claimant proposed to carry out at the Property, for the purpose of seeking Mr Pritchard's view on the likelihood of consent being granted. On 18 April 2011 Mr Pritchard responded to say that Grosvenor Estate would not consent to the construction of a basement under the Property which had formed part of those proposals.
On 17 October 2011 Stephenson Harwood LLP, instructed on behalf of the Claimant, wrote two letters to Grosvenor Estate seeking written consent to proposed alterations to the Property as shown on documentation enclosed with each letter. One letter enclosed proposals which were referred to as Option A and included construction of a deep basement using a contiguous piled wall around the perimeter of the house and the back garden. The other letter enclosed a proposal, referred to as Option B, which did not include the construction of a basement but did include the construction of piles around the perimeter of the house and garden, there being an issue between the parties as to what precisely was indicated on certain drawings.
Prior to applying for consent from Grosvenor Estate, the Claimant had on 21 July 2011 also applied for planning permission for work which included the basement and the contiguous piled wall around the perimeter of the Property which formed part of Option A.
On 21 October 2011 Mr Pritchard acknowledged receipt of the applications and said that the proposals would be discussed at Grosvenor Estate's next planning meeting which, from email exchanges, appears to have taken place on about 27 October 2011.
On 17 November 2011 Westminster City Council granted planning permission for the work which formed Option A. On the following day, 18 November 2011, Mr Pritchard sent an email to Stephenson Harwood in which he apologized for the delay in replying to the Claimant's application and said he was in the process of formally replying to the applications. However, in that email he summarised the position in relation to the applications. In relation to Option A he said that this would not be consented to because Grosvenor Estate were of the opinion the works would cause significant nuisance to the neighbours and nearby residents and were likely to damage neighbouring properties. In relation to Option B he raised concerns about an additional vault, the floor to ceiling height of the lower ground floor, the detail of the proposed mansard roof and the details of the windows.
On 8 December 2011 Stephenson Harwood wrote to Mr Pritchard responding to those queries in relation to Option B and, in turn, Mr Pritchard replied on 13 December.
On 14 December 2011 Mr Pritchard formally responded to the Claimant's applications. In his first letter he confirmed that Grosvenor Estate would not be giving consent to Option A, which included the construction of a basement, for the same reasons as set out in his email of 18 November 2011. He made comments on the remainder of the proposals in relation to floor to ceiling height, the mansard roof and window details. In the second letter of 14 December 2011 Mr Pritchard set out the same comments in relation to the floor to ceiling height, mansard roof and windows and stated "We are likely to favourably consider the remaining proposals."
On 6 January 2012 Stephenson Harwood responded to Mr Pritchard's letters, reserving their position in relation to Option A and responding to the comments made on Option B. They concluded by saying that, in the light of what they said, it appeared that the parties had agreed the terms of consent for the Option B proposal.
On 17 January 2012 Mr Pritchard responded to that letter. In relation to Option B he said he had passed copies of the correspondence to Murray Birrell who would be dealing with the application for consent to carry out alterations under the terms of the Scheme on behalf of Grosvenor Estate. He asked Stephenson Harwood to forward three sets of drawings to Murray Birrell and one set to him showing the amendments set out in Stephenson Harwood's letter of 6 January 2012.
Following that letter, Mr David Betteridge of Murray Birrell became involved and wrote to Stephenson Harwood on 24 January 2012 saying that they would be dealing with the matter up to completion of any works which were deemed appropriate. He requested some further information, including drawings. He added the following:
" In determining whether and upon what conditions consent should be granted, we will take into account not only the proposed works themselves but also the extent and nature of recent works carried out at the Property and any current or proposed works in the vicinity. Occasionally this may mean that if approved, works may need to be phased or delayed in order not to cause unnecessary disturbance to nearby occupiers.
Please note that no works requiring consent under the terms of the management scheme are to be commenced on site until the relevant plans have been considered by Grosvenor or their agents and all relevant Conditions contained in any approval provided must be complied with."
On 26 January 2012 PTP sent Murray Birrell three copies of a number of drawings which, as stated by Stephenson Harwood in a letter to Mr Pritchard of the same date, had been amended to reflect the amendments agreed in their letter of 6 January 2012. Discussions followed between Mr Betteridge and PTP and on 15 February 2012 Mr Betteridge wrote to Mr Pritchard enclosing a copy of a draft approval letter and associated licence for alterations for the Option B works.
On 17 February 2012 PTP wrote to Mr Betteridge following a meeting at which he had advised them of the items which were likely to form conditions precedent to any licence to alter. PTP enclosed further information in the form of two packages, Pack A and Pack B. One of the items in Pack B was a " Method Statement by Aspin Foundations Ltd, covering site set-up, piling and underpinning works".
On 21 February 2012 Murray Birrell wrote a letter ("the conditional approval letter") to the Claimant at Stephenson Harwood and said:
" We are in receipt of Stephenson Harwood's letter of 6th January 2012 addressed to Grosvenor applying on your behalf for consent under the Grosvenor Belgravia Estate Management Scheme for the proposed alterations to this property. The drawings which you enclosed are numbered 47CR-GR12– 03(D), 04(B), 05(B), 06(B), 07(A) and 47CR-GR22–03(C), 04(C) and 05(C) and they show details of the following works:
1. Alterations to front and rear elevations including replacement windows and new feature glass staircase / Juliet balconies with glazed infill panels and metal railings / box planters.
2. Creation of enlarged basement including front under pavement vault to form new habitable accommodation.
3. Installation of new...
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