Crest Nicholson Residential (South) Ltd v McAllister
| Jurisdiction | England & Wales |
| Judge | Mr Justice Neuberger |
| Judgment Date | 18 November 2002 |
| Neutral Citation | [2002] EWHC 2443 (Ch) |
| Docket Number | Case No: HC01 C 04948 |
| Court | Chancery Division |
| Date | 18 November 2002 |
[2002] EWHC 2443 (Ch)
The Honourable Mr. Justice Neuberger
Case No: HC01 C 04948
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Vivian Chapman (instructed by Messrs. Davies Arnold Cooper) for the Claimant
Mr. Kim Lewison QC (instructed by Messrs. Mundays) for the Defendant
Hearing dates: 29 th/30 th October 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
Introduction
1. This case raises two questions in relation to a series of restrictive covenants imposed on parcels of land acquired (or to be acquired) by the claimant, Crest Nicholson Residential (South) Limited in Claygate, Surrey. It is common ground that, with the exception of one of the parcels, the defendant, Fiona McAllister, has the benefit of the covenants.
2. On 23 rd October 1923, Percy and Charles Mitchell (“the Mitchells”) took a conveyance of a parcel of land at Claygate. By an agreement dated 30 th July 1924, the Mitchells agreed to sell part or all of that land (“the estate”) to a company called Mitchell Brothers (Builders) Limited (“the Company”), but no conveyance in favour of the Company was executed, possibly for Stamp Duty reasons. Thereafter, the Mitchells and the Company (which they presumably controlled) proceeded to sell off various plots of land on the estate, on the basis that either the purchaser would build on the plot, or the Company had already built on it.
3. The estate consisted of the greater part of a site which is now bounded on the southwest by Fee Farm Road, on the north-west by the Causeway, on the north-east by Cornwall Avenue, and on the south-east by Claygate Common (“the Common”). Many of the plots on the estate fronted onto the Causeway, but there were also plots which fronted onto Cornwall Avenue, and others which fronted onto Fee Farm Road. At least two of the plots had no frontage to any road, but were to the south-east of plots fronting the Causeway, and had their south-east boundaries on the Common.
4. It appears that in the conveyance of each of the plots, covenants were given by the purchaser “to the intent that” the covenants would “be binding in so far as maybe on the owner for the time being” of the plot, or words to a similar effect. In some conveyances the land benefited by the covenants was not identified. In other conveyances, it was identified as the land at Claygate still belonging to the Mitchells/the Company. In each case, the covenants were given to the Mitchells and the Company. The covenants (“the five covenants”) were in substantially the following terms:
“(1) Not to cause or permit or suffer any buildings or premises whatsoever which shall be erected on the said land to be used as and for a Public House or Beer House Inn Tavern or other licensed premises for the sale of Wines Spirits or Beer or other excisable liquors;
(2) The premises shall not be used for any purpose other than those of or in connection with a private dwelling house or for professional purpose. No dwelling house or other building shall be erected on the land hereby conveyed unless the plans drawings and elevation thereof shall have been previously submitted to and approved of in writing by the Company but such approval shall not be unreasonably or vexatiously withheld;
(3) No building or erection shall at any time be erected or set up between the road and the present building line of the dwelling house now erected on the said land;
(4) The Purchaser shall hereafter maintain in good and substantial repair the existing boundary wall and fence on the [north-west] and [east] sides of the premises marked “T” on the plan hereon;
(5) The Purchaser shall not be entitled to any right of light or air which would restrict or interfere with the free use of the adjoining land of the Company for building or other purposes”
I shall refer to these covenants as “paragraphs (1), (2)” etc.
5. In the conveyance of one of the plots with which this action is concerned, paragraph (2) does not contain the second sentence. In the conveyances of two of the plots, the last word of the first sentence of paragraph (2) was “purposes”. Further, in the conveyance of another of the plots with which this action is concerned, the references in the above set of covenants to “the Company” are to the Mitchells. In addition, the location of the boundaries referred to in paragraph (4) obviously depend on the particular location of the plot concerned.
6. Some time after all parts of the estate had been sold off, the Company was wound up and dissolved. Thus, it no longer exists. Further, as it was dissolved over thirty years ago, it cannot be restored to the Register of Companies —see section 653 of the Companies Act 1985.
7. The defendant is the freehold owner of a house and garden called Newlyn, which fronts on to Cornwall Avenue, and occupies a corner site between Cornwall Avenue and the Causeway. Only the rear part of Newlyn was included in the estate (apparently because Cornwall Avenue is a comparatively new road). Indeed, that part of Newlyn which was included in the estate was itself only part of a single plot which was sold by the Company to the defendant's predecessor in title by a conveyance in 1936 (“the 1936 conveyance”), subject to the five covenants.
8. The claimant has agreed to buy the freehold of Redruth, a house and garden next door but one to Newlyn (south-east from Newlyn, along Cornwall Avenue). It also has agreed to buy the freehold of six other plots of land directly or indirectly behind (i.e. to the south-west) of Redruth and Newlyn. These plots front, or are to the rear (i.e. south-east) of plots fronting, the Causeway. The claimant wishes to pull down the house currently constructed on Redruth, in order to build a road off Cornwall Avenue, so as to obtain access to the six other plots, with a view to building five new houses thereon. The claimant also intends to build a new house on Redruth, in a location which would not interfere with the new road.
9. With the exception of Redruth, the various parcels of land to be acquired by the claimant are all plots originally sold off by the Company, by conveyances which predated the 1936 conveyance, whereby part of Newlyn (now owned by the defendant) was sold off. In so far as it contains land which was part of the estate, Redruth was sold off by the 1936 conveyance. The issues between the parties therefore concern the six plots of land on the estate to be acquired by the claimant other than Redruth (“the claimant's land”).
10. In these circumstances, although initially in dispute between the parties, it is now common ground that:
(1) The defendant cannot enforce any of the five covenants in so far as they affect Redruth, because they are contained in the 1936 conveyance, i.e. in the same conveyance from which the defendant derives title to the relevant part of Newlyn;
(2) To the extent that the five covenants are negative in nature, they “touch and concern” land. That part of Newlyn which was included in the estate had not been sold off at the time that the Company sold off the plots comprising the claimant's land. Consequently, the benefit of the covenants is annexed to part of Newlvn and the defendant is entitled in principle to enforce the covenants in so far as they have been imposed on the claimant's land: see section 78 of the Law of Property Act 1925 and Federated Homes Ltd -v—Mill Lodge Properties Ltd [1980] 1 WLR 594;
(3) Paragraphs (1), (2) and (3) of the five covenants, being negative, or restrictive, in nature, are in principle binding on the claimant and enforceable by the defendant, but the covenant contained in paragraph (4), being positive, is not. (There was no discussion about paragraph (5), because it is irrelevant to the issues in the present action);
(4) The defendant accepts that she cannot enforce any of the five covenants against any part of the claimant's land on an alternative ground initially advanced by her, namely the existence of a building scheme.
11. There are two issues between the parties, and, in relation to each issue the centrally relevant covenant is in paragraph (2). The first issue is whether the covenant, that a plot “shall not be used for any purpose other than those of or in connection with a private dwelling house or for a professional purpose”, prevents the erection of more than one dwelling house on that plot.
12. The second issue concerns the effect of the Company having been dissolved on the covenant, that no building shall be erected on the plot “unless the plans drawings and elevation… shall have been previously… approved of… by the Company but such approval shall not be unreasonably or vexatiously withheld”. In the case of one of the plots, the question is very slightly different, because, as I have mentioned, the consent is to be that of the Mitchells, but, not surprisingly, they have both long since died, and therefore a very similar question arises. Further, as also mentioned, the second question does not arise in relation to another plot, where the five covenants do not include the second sentence of paragraph 2.
13. I propose to consider these two issues in turn. Before doing so, it is right to record that I have found the resolution of both issues difficult, and my task has not been made any easier by the excellence of the arguments on each side.
The first issue: only one dwelling house?
14. The claimant's construction of the first sentence of paragraph (2) (‘the first covenant”) essentially involves reading the words “other than those of or in connection with a private dwelling house” as meaning “other...
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