Driscoll v Church Commissioners for England
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 31 October 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1031-2 |
| Date | 31 October 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J1031-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justic Denning
Lord Justice Hodson and
Lord Justice Morris
MR MICHAEL ALBERY, Q.C. and MR WILLIAM ROOTS (instructed by Messrs Kinch & Richardson, Agents for Messrs Copley Singleton & Billson, Croydon) appeared on behalf of the Appellant (Applicant).
MR PERCY LAMB, Q.C. and MR PETER BRISTOW (instructed by Messrs Milles, Day & Co.) appeared on behalf of the Respondents.
LORD JUSTICE DENNING: In the years between 1865 and 1870 the Church Commissioners for England granted leases of certain premises in Croydon at a ground rent for 99 years, and those leases are due to expire in 1964 and the succeeding years. (I expect they were building leases at a ground rent). In those leases the Commissioners put a restrictive covenant. The usual form was, "the premises shall not be used for any trade or business or otherwise than as a private dwelling-house save with the previous written consent of the lessor". Largehouses were built – ten-roomed or even twenty-roomed houses – and there is no doubt that at the date when the covenant was made it was contemplated that those houses would be occupied by people of wealth and position with sufficient servants to keep such large houses going for use for a single family. In the course of years - and particularly since the ware, when it has become almost impossible to get servants to staff houses of this size - the Church Commissioners have readily granted consents to these houses being used, not for single private dwelling-houses but to be converted into flats or as guest houses and so forth.
We are concerned with a number of these houses, the leaseholds of which were bought by Mr Terence John Driscoll a few years back. We were told that when he bought them, some were used as boarding houses, others were self-contained flats, and two or three were still used for single private dwelling-houses. Mr Driscoll turned them into hostels and residential clubs for people from overseas. He had, however, not got consent for this user of the premises, so he applied in the year 1949 to modify those restrictive covenants.
There is a procedure which has been in force ever since 1925, prescribed by section 84 of the Law of Property Act. 1925, which set up an Authority (now the Lands Tribunal) which, it was provided, "shall …. have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction …. on being satisfied (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Authority may deem material, the restriction ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land for public or private purposes without scouring practical benefits to other persons, or, as the casemay be, would unless modified so impede such user". By subsection (12) this procedure applies to long leaseholds as well as freehold land.
Under that provision Mr Driscoll applied to the Lands Tribunal to modify this restriction which I have read, and he sought the removal or modification of the restriction so as to permit the user as a private guest house or as a hostel for a residential club. The Church Commissioners, when he sought a modification, did not turn it down altogether. There was a letter in September, 1949, in which the solicitors to the Church Commissioners writing to the solicitors for Mr Driscoll said: "In certain cases licences have been granted permitting houses on the Commissioners' estate to be used as guest-houses, but the terms of the licences are such as to preserve the character of the neighbourhood …. We are prepared to take our clients' instructions with regard to the granting to Mr Driscoll of a similar licence. The terms on which Messrs Clutton would advise the granting of such a licence are as follows". Then it sets out a number of conditions: that each house should have its own resident matron or supervisor, that it is to be properly furnished, that it is to be kept outwardly as a private residence, that the number of persons occupying each house is to be restricted, that wireless sets are not to be audible outside, and so forth; and the licence was to be "revocable at the Commissioners' pleasure and to be personal to Mr Driscoll". Then Mr Driscoll has to make good within twelve months all the dilapidations.
So the Church Commissioner: offered to grant him permission on those conditions. He did not see his way to agree to those conditions; and one can well see that they were rather stringent. There were negotiations, and he eventually determined to go to the Tribunal to see if the Tribunal would modify the restrictions. Before he got there, the Commissioners issued Brits for forfeiture in respect of six out of theeight leases, claiming that the premiums were forfeited because he had broken his covenant about user; and certainly he had: he had not the necessary consent of the Commissioners. In those actions for forfeiture Mr Driscoll had to admit that there were breaches, but he counterclaiamed for relief from forfeiture. The actions were tried by Mr Justice Pearce last July. He granted relief on terms that (in effect) provided for the repairs to be done to the premises and provided for the covenants to be observed either as they stood or as they mere modified.
I will mention one point at once, a technical point taken by Mr Lamb on behalf of the Church Commissioners. He raised it by cross-notice under the new Rules which is, I think, open to him. He said that because of those Write for forfeiture being issued, Mr Driscoll had no locus standi to apply for these restrictions to be modified at all in regard to six of these leases. He said that the issue of a Writ for forfeiture is an unequivocal election by the landlords to determine the leases, and in consequence the leases had gone and the covenants had gone, and that there was nothing left to modify. I do not agree with that argument, for this reason, that, although a Writ is an unequivocal election, nevertheless, until the action is finally determined in favour of the landlord, the covenant does not cease to be potentially good. For instance, the forfeiture may not be established; or relief may be granted: in which case the lease is re-established as from the beginning. That appears from the case of ( Dendy v. Evans 1910, 1 King's Bench, page 263) following what Sir Richard Henn Collins, Master of the Rolls, said in Serjeant v. Nash. Field & Company., 1903, 2 King's Bench, page 304). It seems to me that so long as the covenant is potentially good, Mr Driscoll, or anyone in like position, has a locus standi to apply to the Tribunal for a modification of the covenant. So I think that Mr Driscoll is not to be defeated on any technical point.
Putting that matter on one side, the applications did come before the President of the Tribunal, Sir William PitsGerald. He sat himself to hear the case, he heard the evidence, and he went and inspected the site himself. He refused to modify the restriction. Mr Driscoll appeals to this Court.
I must first say a word about appeals from the Lands Tribunal. Parliament has now enacted, in the Lands Tribunal Act, 1949, section 3, subsection (4), "A decision of the Lands Tribunal shall be final"; but then there is this proviso: "Provided that any person aggrieved by the decision as being erroneous in point of law may, within such time as may be limited by rules of court, require the tribunal to state and sign a case for the decision of the court". That is the provision under which the matter is brought before us. A person who is aggrieved by the decision as being erroneous in point of law may bring the matter up to this Court. I would not wish those words unduly to hamper an appeal from the Tribunal: and I do not think they do, because it is well settled that the question whether or not there is any evidence to support a particular finding is a question of law. It is also well settled that the question whether an inference drawn from primary facts is a legitimate Inference is also a question of law. There have been before the Divisional Court several cases of dangerous driving where the Lord Chief Justice and his colleagues, having had primary facts stated, have held that the Justices were not justified in dismissing the charge and have directed them to convict. Such was the case of Bracegirdle v. Oxley, 1947 King's Bench, page 349. It is for the tribunal of fact to find the primary fact, but having done so, the inferences from those facts are matters upon which an aggrieved person can appeal.
In this case, therefore, we have to see what are the facts which the Tribunal has found, and to see what are theconclusions it has drawn from those facts. Then we have to see whether the conclusions it has drawn are reasonable conclusions for it to draw. So far as the facts are concerned, the Church Commissioners agreed that there were changes in the neighbourhood. Mr Clutton, their chartered surveyor, said: "It is true that the houses were now too large for single occupation, but the Commissioners would always agree to their conversion into flats or to other uses subject to such conditions as they considered fit to impose to maintain what they consider a proper standard for the neighbourhood". The President of the Tribunal made these findings. "I was of opinion that, although there were changes in this area of Croydon, those changes were only to the extent that they reflected the change in regard to the size of private residences. It is true that few people...
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