Crest Nicholson Residential (South) Ltd v McAllister

JurisdictionEngland & Wales
JudgeLord Justice Chadwick,Lady Justice Arden:,Lord Justice Auld
Judgment Date01 April 2004
Neutral Citation[2004] EWCA Civ 410
Docket NumberCase No: 2003/0178
CourtCourt of Appeal (Civil Division)
Date01 April 2004

[2004] EWCA Civ 410






Royal Courts of Justice


London, WC2A 2LL


Lord Justice Auld

Lord Justice Chadwick

Lady Justice Arden

Case No: 2003/0178

Crest Nicholson Residential (South) Limited
Fiona Ruth Mcallister

Mr Vivian Chapman (instructed by Davies Arnold Cooper of 6–8 Bouverie Street, London EC4Y 8DD) for the Appellant

Mr Nicholas Grundy (instructed by Mundays of Cedar House, 78 Portsmouth Road, Cobham, Surrey KT11 1AN) for the Respondent

Lord Justice Chadwick

This is an appeal and cross-appeal from an order made on 17 December 2002 by Mr Justice Neuberger in proceedings brought by Crest Nicholson Residential (South) Limited to determine the extent to which land at Claygate, Surrey, in respect of which it is the purchaser under a conditional contract, is subject to restrictive covenants. The defendant to those proceedings, Mrs Fiona McAllister, is the owner of neighbouring land and (as such) claims to be entitled to the benefit of those covenants.

The underlying facts


The land in question, which borders Claygate Common, was sold for building in 1923. The purchasers, into whose names the land was conveyed, were Mr Percy Mitchell and his brother, Mr Charles Mitchell. In July 1924 they agreed to sell the land to their company, Mitchell Brothers (Builders) Limited; but there was no conveyance and the land remained in the names of the two brothers. Between 1926 and 1936 the company sold off the land, in plots, to individual purchasers. The two brothers joined in the conveyances to those purchasers as trustees to convey the legal estate. Those conveyances imposed restrictive covenants on the land conveyed.


There were, I think, a dozen conveyances by the Mitchell brothers and their company between 19 July 1926 and 27 May 1936. Seven are relevant to this appeal. They fall into four groups: (i) conveyances dated 2 February 1928 and 15 February 1933 to Mr Arthur Edward Arthur ("the Arthur conveyances"), (ii) conveyances dated 22 August 1928 and 3 November 1933 to Mr Harry Thomas Humphreys ("the Humphreys conveyances"), (iii) conveyances dated 21 November 1930 and 3 November 1933 to Mr Edwin Robert Roberts ("the Roberts conveyances") and (iv) a conveyance dated 27 May 1936 to Mr Richard William Ffitch Wing and Mr Richard John Wing ("the Wing conveyance"). The land in respect of which Crest Nicholson is purchaser "the proposed development land" is comprised of parts of the land conveyed by each of the seven conveyances. The land of which Mrs McAllister is the owner comprises part of the land conveyed by the Wing conveyance.


The land conveyed by the Arthur, Humphreys and Roberts conveyances is now comprised in the registered titles of three properties known respectively as "Westwood", "Mylor" and "Morwenna". Each of those properties has a frontage onto a road known as The Causeway. On each of those properties there is, now, a substantial dwelling house. The proposed development land includes part of the gardens at the rear of each of those properties; that is to say, it includes what may be described as the bottom half of each of those gardens, extending back to Claygate Common.


Most of the land conveyed by the Wing conveyance is now comprised in the registered titles of three other properties known respectively as "Redruth", "Tressilion" and "Newlyn". Each of those properties has a frontage onto Cornwall Avenue, which forms an extension to Common Road. Again, there is, now, a dwelling house on each of those properties. The remainder of the proposed development land includes part of the garden of Tressilion and the whole of the property known as Redruth, through which it is intended that access to the proposed development will be obtained from Cornwall Avenue. Mrs McAllister is the registered proprietor of Newlyn.


In or about September 2000 Crest Nicholson entered into a conditional contract for the purchase of the proposed development land with a view to the development of that land by the erection of five new houses on what are now the gardens of Westwood, Mylor and Morwenna, and a sixth house in place of the existing dwelling on Redruth. Mrs McAllister opposed that development. She contended that the erection of new houses would breach the terms of the restrictive covenants of which she, as owner of Newlyn, was entitled to the benefit.

The relevant covenants


Each of the seven conveyances contains, in the first schedule, covenants restricting the use which is to be made of the land conveyed. The relevant covenants, for the purposes of this appeal, are those in paragraph 2 of the first schedule to each conveyance. Those paragraphs impose one or both of the following restrictions (or restrictions in substantially the same terms): (i) a restriction ("the user restriction") that "the premises shall not be used for any purpose other than those of or in connection with a private dwelling house or for professional purposes"; (ii) a restriction ("the building restriction") that "no dwelling house or other building shall be erected on the land hereby conveyed unless the plans drawings and elevations shall have been previously submitted to and approved of in writing by [the Company/the Vendor] but such approval shall not be unreasonably or vexatiously withheld".


In that context, with two exceptions, "the Company" or "the Vendor", as the case may be, means Mitchell Brothers (Builders) Limited. The exceptions are that in one of the Roberts conveyances (that dated 21 November 1930) and in the Wing conveyance, the persons or person by whom plans are to be approved for the purposes of the building covenant (described as "the Vendors" or "the Vendor") are the two brothers rather than the company. We were told that Mr Charles Mitchell predeceased his brother; that Mr Percy Mitchell died in 1949; and that the company was dissolved in 1968.


Restrictions in the terms which I have just set out are found in both the Arthur conveyances, in both the Roberts conveyances, in the later of the Humphreys conveyances and in the Wing Conveyance. The earlier Humphreys conveyance (dated 22 August 1928) contains the user restriction but does not contain the building restriction.


The restrictions contained in the first schedule to the conveyance dated 2 February 1928 were the subject of a covenant given by the purchaser, Mr Arthur Edward Arthur, in these terms:

"The Purchaser to the intent and so that the covenants hereinafter contained shall be binding on the said land and hereditaments hereby conveyed into whomsoever hands the same may come but not so as to render the Purchaser personally liable for damages for any breach thereof after he shall have parted with all interest therein hereby Covenants with the Company and the Trustees that he the Purchaser and the persons deriving title under him will at all times hereafter observe and perform the [restrictions mentioned in the First Schedule hereto]."

There is no express annexation, in that conveyance, of the benefit of the covenants to land retained by the covenantees. The later of the two Arthur conveyances (dated 15 February 1933) is a conveyance to Mr Arthur made supplemental to the earlier conveyance of 2 February 1928. Its object, as appears from the recitals, is to convey to him "a further piece of land forming part of the said fee farm estate subject to the said restrictions [imposed by the principal conveyance]". The covenants are given in the same terms. Again, there is no express annexation of the benefit of the covenants to land retained by the covenantees.


The covenants in the Humphreys conveyances did contain express words of annexation:

"For the benefit of the property at Claygate aforesaid belonging to the Vendors or the part thereof for the time being remaining unsold and so as to bind the property hereby conveyed The Purchaser hereby covenants with the Vendors and the Trustees that the Purchaser and the persons deriving title under him will henceforth at all time hereafter observe and perform all and singular the restrictions contained in the First Schedule hereto …"


The covenant in the first of the Roberts conveyances (dated 21 November 1930) was given by the purchaser, Mr Roberts, in these terms:

"… to the intent that this covenant shall be binding so far as may be on the owner for the time being of the property hereby assured but upon the Purchaser only so long as he is the owner of the said property …"

There are no words of annexation in that conveyance. The covenant in the later Roberts conveyance (dated 3 November 1933) was given in the same terms as those in the two Humphreys conveyances.


In those cases where the conveyance contains no words of annexation it is pertinent to note the description of the land conveyed. In the first of the Arthur conveyances (dated 2 February 1928) the land conveyed is described as:

"ALL THAT piece or parcel of freehold land situate and being Plot number 6 and part of Plot number 5 on the Fee Farm Estate at Claygate in the County of Surrey…"

The land conveyed is further described as having a frontage onto the road known as The Causeway; its dimensions are given; and it is said to be "more particularly delineated and described on the plan drawn hereon." The plan drawn on the conveyance is not a plan of the Fee Farm estate; in particular, it is not a plan which shows that estate partitioned into plots. Nor is there any other provision or description in the conveyance which enables the land known as the Fee Farm Estate to be identified;...

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