Douglas Gafford (Plaintiff v A H Graham and Another (Defendants

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date08 April 1998
Judgment citation (vLex)[1998] EWCA Civ J0408-22
Docket NumberCCRTF 97/0011 CMS2

[1998] EWCA Civ J0408-22





(His Honour Judge Simpson)

Royal Courts of Justice

Strand, London WC2


Lord Justice Nourse

Lord Justice Pill and

Lord Justice Thorpe

CCRTF 97/0011 CMS2

Douglas Gafford
Plaintiff (Respondent)
(1) A H Graham
(2) Grandco Securities Limited
Defendants (Appellants)

MR C TAYLOR (MR D REGAN 8.4.98) (instructed by Messrs Arnold Cooper & Tompkins, Chichester) appeared on behalf of the Appellant Defendants.

MR G ZELIN (instructed by Messrs Sherwin Oliver, Portsmouth) appeared on behalf of the Respondent Plaintiff.


Wednesday, 8th April 1998


This appeal raises questions on (1) acquiesence and (2) the remedy of an injunction or damages in lieu in relation to breaches of restrictive covenants affecting freehold land. The principal question is whether the owner of a dominant tenement who, having, with full knowledge of his rights, omitted to seek interlocutory relief to restrain the unlawful erection of a building on the servient tenement, ought to be granted an injunction, mandatory or prohibitory, or damages in lieu; cf. Wrotham Park Estate Co Ltd. v. Parkside Homes Ltd. [1974] 1 WLR 798, and Jaggard v Sawyer [1995] 1 WLR 269.


The conveyances and the background


By a conveyance made on 31st December 1971 Mr and Mrs James Conwell became the freehold owners of a rectangular area of land consisting of some 22 acres at Hunston, near Chichester in West Sussex. The rectangle ran from north to south, the southern boundary having a frontage to the road from Chichester to Hunston. At that time there was a two bedroom bungalow on the south-west corner of the land. Subsequently, Mr Conwell built some stables and a yard adjacent to the bungalow. He also built another bungalow in the central area of the southern frontage as a new home for himself and his wife.


By a conveyance made on 22nd December 1976 ("the 1976 conveyance") Mr and Mrs Conwell conveyed to Mrs Margaret Anne Mackie the western portion of the property consisting of some 12 acres and including the original bungalow, the stables and the yard. The property conveyed was described as "Littlemead Farm Stables, Hunston". The 1976 conveyance contained restrictive covenants by Mrs Mackie, whose burden was imposed on the property thereby conveyed ("the covenant land") and whose benefit was annexed to each and every part of the 10 or so acres retained by Mr and Mrs Conwell ("the retained land"), which included their new bungalow. It is with those restrictions that this case is concerned. They were duly registered as a land charge class D(ii).


The restrictions were set out in the first schedule to the 1976 conveyance, the first three paragraphs of which provided:

"1. Nothing shall be done or permitted to be done on the property hereby conveyed which shall be or may grow to be a nuisance damage or annoyance to the owner or occupier for the time being of the Vendor's Retained Property or any part or parts thereof and at no time shall the premises hereby conveyed or any part thereof be used or permitted to be used other than as a livery yard and stabling for horses and one residential bungalow

2. Not more than one caravan shall be allowed to remain on the property hereby conveyed at any one time

3. No building of any description shall be allowed on the land hereby conveyed or any part thereof until detailed plans thereof have been submitted to and approved in writing by the Vendors PROVIDED ALWAYS that this covenant shall not apply to the bungalow at present erected on the land hereby conveyed nor to any renovating or alterations necessary to make the same fit for habitation and use nor to the stables and outbuildings at present erected on the land hereby conveyed."


I will refer to the second part of the first paragraph as "the user restriction" and the first part of the third paragraph as "the building restriction".


By a conveyance made on 17th May 1978 Mr and Mrs Conwell conveyed some two acres of the retained land, together with the new bungalow (described as "Littlemead Farm") to the plaintiff, Douglas Gafford. Although the 1976 conveyance had already annexed the benefit of the restrictive covenants to each and every part of the retained land, the conveyance to the plaintiff contained an express assignment to him of the benefit of those covenants.


On 19th November 1980 Mr and Mrs Conwell conveyed the remainder of the retained land to the first defendant, Arthur Hugh Graham, to whom I will refer simply as "the defendant". The second defendant, Grandco Securities Ltd, is a company owned and controlled by the defendant which carries on the riding school business hereafter referred to. On 15th May 1981 Mrs Mackie conveyed the covenant land to Mr and Mrs P W Brittain who, on 12 July 1983, conveyed it to the defendant. So at that stage the defendant became the owner of the servient tenement. Although he owned the major part of the dominant tenement as well, the restrictions could still be enforced against him by the plaintiff, as the owner of the remainder of the dominant tenement.


User up to 1983


Both Mr Conwell and Mr Brittain gave evidence for the defendant at the trial, each of them describing the use made of the covenant land during the period of his ownership. Mr Conwell said that his wife had run a riding school there with 50 horses and up to 20 to 30 pupils at any one time. Mr Brittain said that he and his wife had about 17 to 20 horses, of which four were their own and the remainder were in livery. He said that he would not describe their establishment as a riding school. They did not give many lessons, perhaps 30 to 40 a month, the bulk of them to children or teenagers whose parents had horses in livery. While they were there the Brittains extended the two bedroom bungalow by adding another bedroom and bathroom. It nevertheless remained a bungalow. It has been unnecessary for us to consider whether the extension was authorised by the proviso to the building restriction or not. There was hardly any evidence as to what happened during Mrs Mackie's time. Mr Brittain said that he and his wife took over her liveries.


There has been some debate as to whether there was any breach of the user restriction between May 1978, when the plaintiff acquired his property, and July 1983, when the Brittains sold the covenant land to the defendant. Had there been such a breach, it might have been material to the question of acquiescence in relation to later breaches. However, whatever might have been said about the scale of the Conwells' activities between 1972 and 1976, the evidence does not establish that there was any unlawful user of the covenant land while it was owned by Mrs Mackie or the Brittains.


The restriction is against user other than as a livery yard and stabling for horses. It is said by the plaintiff that use as a riding school, outdoors just as much as indoors, is a breach of that restriction. While I accept that that in principle is so, I do not think that either Mrs Mackie or the Brittains can, on the evidence, be said to have been running a riding school. Certainly, the Brittains did no more than give tuition as an incidental part of their livery business and, in the absence of evidence to the contrary, Mrs Mackie must be taken to have done the same. Accordingly, it is not shown that the plaintiff would have had any ground of complaint as to the use of the covenant land before it was acquired by the defendant in 1983. Henceforth I will confine myself to the period of his ownership.


The proceedings


The action was commenced by a specially endorsed writ issued in the Chancery Division on 29th August 1989. Subsequently, it was transferred to the Mayor's and City of London County Court. At the trial the plaintiff alleged that the defendant had committed breaches of the restrictions in six specific respects. He alleged, first, that in 1986 the bungalow standing on the covenant land had, without the submission and approval of any plans, been converted into a two-storey house with a loft above; secondly, that in 1986 a barn standing on the covenant land had, without the submission and approval of any plans, been extended; thirdly, that in 1989 an indoor riding school had, without the submission and approval of any plans, been constructed on the covenant land; fourthly, that the business of a riding school, both indoors and outdoors, had been carried on on the covenant land; fifthly, that up to three caravans had been placed on the covenant land; sixthly, that the defendant had held car boot sales on the covenant land. The defendant raised various defences, claiming that the restrictions were not enforceable against him, that he had not been in breach of them and that, if he had, the plaintiff's claims had become barred by acquiesence.


The trial of the action took place before His Honour Judge Simpson over five days in October 1996. In his reserved judgment delivered on 9 December 1996 he held that the restrictions were enforceable against the defendant and found that he had been in breach of them in all the respects alleged by the plaintiff. He found that plans had not been submitted on any of the three occasions when they ought to have been submitted and, further, that the plaintiff would not have approved them if they had been. He rejected the defence of acquiesence. Having recorded that the plaintiff did not ask for the house or the extension to the barn to be demolished, but would prefer demolition of the riding school, the judge said that he could not grant that request. Instead he granted an...

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