Dennis and Others v Davies

JurisdictionEngland & Wales
JudgeLord Justice Rimer,Lord Justice Wilson,Lord Justice Ward
Judgment Date22 October 2009
Neutral Citation[2009] EWCA Civ 1081
Docket NumberCase No: A3/2008/2998
CourtCourt of Appeal (Civil Division)
Date22 October 2009

[2009] EWCA Civ 1081

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

His Honour Judge Behrens (sitting as a Judge of the High Court)

Claim No: HC07C02128

Before: Lord Justice Ward

Lord Justice Wilson and

Lord Justice Rimer

Case No: A3/2008/2998

Between
Anthony Stephen Davies
Appellant
and
(1) Richard And Margaret Dennis and Others
Respondents

Mr Tom Weekes (instructed by Pitmans) for the Appellant

Mr Martin Hutchings (instructed by IBB Solicitors) for the Respondents

Hearing date: 3 June 2009

Lord Justice Rimer

Lord Justice Rimer:

Introduction

1

This is a defendant's appeal against an order of 21 November 2008 made by His Honour Judge Behrens sitting as a High Court Judge in the Chancery Division. The judge (i) declared that certain building works that the defendant, Anthony Davies, wished to carry out would, if carried out, breach restrictive covenants whose benefit is enjoyed by each of the claimants/respondents (Richard and Margaret Dennis, Daniel and Irene Cameron, Richard Giles, Derek and Ruth Tilsley and Hannah Yentis); (ii) granted an injunction restraining Mr Davies from carrying out the works; (iii) ordered him to pay the claimants' costs; and (iv) gave permission to appeal.

2

The judge had to decide three issues. First, whether on its true construction the covenant in paragraph 2 of the relevant schedule applied to Mr Davies' proposed building works at all. Second, if it did, whether the works would be or become a 'nuisance or annoyance' to the claimants within the meaning of that covenant: only if they did would there be a breach. Third, whether Mr Davies had a written approval to carry out the works for the purposes of the covenant in paragraph 1 of the schedule.

3

The judge decided all three points against Mr Davies. All three were again put in issue by his appellant's notice, although in the event the argument focused only on the first and third points. As for the second point, which required a value judgment by the judge based on the evidence, Mr Weekes (who appeared, as below, for Mr Davies) recognised that to persuade this court to substitute a different judgment required the scaling of too high a mountain and he did not press the point. We are thus concerned only to decide the first and third points: construction and approval.

The background facts

4

I take these gratefully from the judge's judgment. The parties live on Heron Island in the River Thames, at Caversham, near Reading. In the mid-1980s the island was developed by Heron Homes Limited ('Heron') as a residential estate comprising 47 three-storey houses. The judge said this of the development:

'16. … A particular feature of the development was its closeness to the river and the views that each house was afforded of the Thames. The island was described in the advertising brochures at the time as a unique development “lapped by the waters of the Thames on three sides” and, as providing purchasers with a “waterside lifestyle”. The open river views were a feature of the development and many houses were also given mooring rights. Nearly every house has a waterside frontage. Views of the River are gained by deliberately designed gaps between the houses and the houses have been carefully orientated in order to take advantage of the river view.'

5

Heron sold the houses by materially identical transfers entered into by itself, its management company, OM Peverel Limited ('Peverel'), and the purchasers. It later transferred the communal areas and mooring facilities to Peverel, which covenanted to manage and maintain them, the purchasers covenanting to reimburse Peverel for the cost (the transfers in fact named the management company as OM Limited, but nothing turns on that).

6

Each transfer included a series of restrictive and positive covenants by the purchaser, some with just Heron and Peverel, others both with them and with the owners for the time being of other plots on the estate. I will go straight to the relevant provisions of the transfer of No 23 Heron Island, which Mr Davies has owned since 1993. The transfer is dated 26 June 1987 and the original transferee was Mr Strange, from whom Mr Davies derived title.

7

By clause 4(a) Mr Strange covenanted:

'The Purchaser for himself and his successors in title and with the intent to bind the Plot into whosesoever hands the same may come hereby covenants with the Vendor and the Management Company and also as a separate covenant with every other person who is now the owner of any part of the Estate for the benefit of the remainder of the Estate including any part thereof for the time being unsold to observe and perform the restrictive and other covenants and stipulations set out in the Third Schedule hereto PROVIDED THAT nothing herein contained shall prevent the Vendor or its successors in title from selling or otherwise disposing of any part or parts of the Estate free from any restriction or stipulation or from waiving compliance with or agreeing to vary any restriction or stipulation now or hereafter affecting any part of the Estate nor be deemed to create a building scheme.'

8

The key covenants in the Third Schedule are in paragraphs 1 and 2 but I will also set out paragraph 4:

'1. Not to erect on the Plot or any part thereof any building whether of a permanent or temporary nature except such as shall be in accordance with plans and elevations which shall have been approved in writing by the Management Company and whose proper and reasonable fees shall be paid by the persons submitting such plans and elevations for approval

2. Not to use the Dwellinghouse for any purpose other than that of a private residence or ancillary thereto and not to carry on from the Plot or any part or parts thereof any trade business or manufacture whatsoever nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood …

4. (a) Not to allow the wall fence or boundary posts along those boundaries of the Plot indicated by a “T” within the boundary on Plan 1 nor the rear wall or fence to fall into disrepair but to maintain the same in good condition

(b) Not at any time to erect or permit to be erected along any of the boundaries of the Plot any boundary structure of whatsoever nature other than as may exist at the date hereof (and where only boundary marker posts exist along such boundary not to erect any boundary structure of whatsoever nature) without the written consent of the Management Company which shall be entitled to grant or withhold its consent entirely at its discretion

(c) Not to erect construct or plant in front of the front or side building line any wall fence gate or other means of enclosure without the written permission of the Management Company and the Local Planning Authority'

It is not disputed that each claimant is entitled to the benefit of, and to enforce against Mr Davies, the restrictive covenants contained in those paragraphs. Paragraph 4(a), although expressed in negative terms, in fact looks more like a positive covenant; if so, it may not be so enforceable, although I express no final view on that.

9

The particular problem that has arisen is that on 19 October 2005 Mr Davies obtained planning permission to build a three-storey side extension to his house. Work started on it in May 2007 but was later halted following complaints from the claimants' solicitors and pending their resolution by these proceedings. Its continuance is now enjoined by the judge's order. Each claimant is a neighbour of Mr Davies and asserts that the proposed extension does not have a paragraph 1 approval; and (even if it did) that it will anyway cause them a 'nuisance or annoyance' in breach of paragraph 2. Mr Davies' house at No 23 borders the river on the southern side of Heron Island. Mr and Mrs Dennis live at No 16, behind No 23 to the north-west. Mr and Mrs Cameron live at No 17, next door to No 16. Mr Giles lives at No 46, in the central part of the island and approximately to the west of No. 23. Mr and Mrs Tilsley live at No 22, on the eastern extremity of the island, roughly north- east of No 23. Mrs Yentis lives next door to them at No 21.

10

Mr Davies' proposed extension is intended to comprise a study and utility room on the ground floor, an extension to the sitting room and a balcony on the first floor and an additional bedroom on the second floor. It is 3.2 metres wide, 6.3 metres deep, 7.5 metres high to the eaves and 9.5 metres to the ridge. The judge summarised the objections of each of the claimants to the extension, which included complaints that it would reduce their river views from parts of their respective houses. During a four-day trial, he had the benefit of the claimants' written and oral evidence, plans, a three-dimensional model, photomontages, expert evidence from two witnesses on planning matters, evidence from a valuation surveyor and a site view. As regards the evidence directed at proving that the extension would occasion 'nuisance or annoyance' to the claimants in breach of paragraph 2 by interfering with their river views, Mr and Mrs Dennis obviously had the strongest case; and Mr and Mrs Tilsley and Mrs Yentis the weakest.

11

Central to the argument before the judge was whether the covenant in paragraph 2 has any application at all to the erection or extension of a building: Mr Davies' argument was that the regulation of works of that nature was exclusively within the province of paragraph 1. The...

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1 firm's commentaries
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