Geoffrey Edward Tupholme and Others v Ian Anthony Firth
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 17 September 2015 |
| Judgment citation (vLex) | [2015] EWHC J0917-1 |
| Docket Number | Case No: B80LS039 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 September 2015 |
[2015] EWHC J0917-1
IN THE LEEDS COUNTY COURT
CHANCERY BUSINESS
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens
Case No: B80LS039
Paul Wilson (instructed on a direct access basis) for the Claimants
Paul Lakin (instructed by Burr Sugden) for the Defendants
Hearing dates: 7 – 9 September 2015
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.
Heather View is a housing development dating from the mid 1970's centred on a cul-de-sac in Eldwick, near Bingley. The Claimants are the freehold owners of numbers 1, 3, 4 and 5 Heather View, and the Defendant ("Mr Firth") is the freehold owner of the remaining property, 2 Heather View.
2 Heather View was the first property to be sold from the development by the developer, James Philip Taylor ("Mr Taylor"). It is subject to restrictive covenants against building ("the building covenant") and against permitting the property to be used to cause a nuisance or annoyance ("the annoyance covenant").
On 21 st July 2011 Mr Firth first obtained planning permission for the construction of a single storey bungalow within the grounds of 2 Heather View. That permission was renewed in November 2014. The Claimants contend that the construction of the bungalow would breach each of the above restrictive covenants. Mr Firth contends that there would be no such breach.
In summary he contends that there are two reasons why there is no breach of the building covenant. First he contends that he has the consent of a surveyor appointed by Mr Taylor's executors and that is sufficient to comply with the covenant. Second (and in the alternative) he contends that the building covenant lapsed with the death of Mr Taylor. In the event that he is wrong about the construction he contends that the covenant is subject to an implied term that consent will not be unreasonably withheld and that the Claimants' refusal to consent is unreasonable.
He also contends that the construction of the bungalow would not amount to a nuisance and annoyance within the meaning of the annoyance covenant.
These proceedings were commenced in the High Court on 28 th April 2014. The Claimants seek declarations under s 84(2) of the Law of Property Act 1925 ("the 1925 Act") that the covenants are enforceable by the Claimants and that the construction of the proposed bungalow is prohibited by each of the covenants. For the reasons I have summarised Mr Firth disputes that the Claimants are entitled to any of the declarations they seek and has Counterclaimed (so far as necessary) for a declaration that the Claimants refusal to consent to the variation of the building covenant is a breach of the implied term of the covenant.
Three witnesses were called on behalf of the Claimants — Professor Tupholme, Mr Parker, and Mr Howard. In addition I read a statement from Mrs Newby who is almost 90 and not able to attend. Mr Firth gave evidence on his own behalf.
I have the benefit of a report from a joint expert Fineline Architectural Design Ltd ("FAD") dated 28 th April 2015. FAD's report contains site information including the dimensions of the new bungalow. It contains plans of the existing 5 dwellings in Heather View and the new bungalow. It also contains some computer generated images showing the effect of the proposed bungalow to views from various aspects of the Claimants' respective properties.
At the conclusion of the evidence I visited the site and was shown both inside and outside of each of the Claimants' properties. Thus I could see for myself the views enjoyed by each and form my own view of the effect of the proposed bungalow.
It is important to note that this case is concerned with the enforceability of the covenants under s 84(2) of the 1925 Act. It is not concerned with the power of the Upper Tribunal (Lands Chamber) ("the UT") to modify or discharge the covenants under s 84(1) of the 1925 Act.
The facts
The site
Heather View is located to the east of Eldwick, a small village just off the main road from Bingley to Baildon. The elevated village falls from north to south. Heather View is a cul-de-sac off Glen Road.
There are 5 dwellings on Heather View. Heather View runs approximately from north to south. The layout of the dwellings is shown on the key plan attached to the FAD report shown below. Two properties (Nos 1 and 2) lie to the east of Heather View, the other 3 (Nos 3, 4 and 5) lie to the west. Nos 1 and 2 are two storey buildings. Nos 3, 4 and 5 are bungalows. As can be seen from the plan the proposed dwelling is at the northern end of the land comprised within No 2 just to the south of the boundary between No 1 and No 2.
The whole of the site area comprises 1.4 acres. The buildings are each constructed using quality materials and sit within large garden plots. The boundary between No 1 and No 2 is delineated by a beech hedge which varies from approximately 1.82 metres high at the north west corner of No 2 to 2.20 metres high at a point adjacent with the middle of the three birch trees in the garden of No 1. There is a hedge to the west of No 1 and a hedge at the north west corner of No 2. Part of this hedge will be removed to permit vehicular access to the proposed dwelling.
There are hedges between Nos 3, 4 and 5 and also to the east of Nos 4 and 5. The hedge to the east of No 4 was measured (from the road side) at 2.37 metres high
The FAD report contains a table showing the area of the site in comparison with the footprint of the dwelling:
|
| Site area (m 2) | Dwelling area (m 2) |
| 1 Heather View | 1198 | 118 |
| 2 Heather View | 1262 | 156 |
| 3 Heather View | 1168 | 240 |
| 4 Heather View | 800 | 223 |
| 5 Heather View | 674 | 213 |
As can be seen from the plan 2 Heather View is situated at the southern end of Mr Firth's site. The proposed bungalow is at the northern end just to the south of the hedge separating 1 Heather View from 2 Heather View. The footprint of the proposed bungalow is 186 m 2. The area of the site is 443 m 2 leaving the remainder of 2 Heather View with 818 m 2.
Views
It is no part of the Claimants' case that Heather View is a totally rural location. It is an elevated cul-de-sac within a village environment. The aerial view in the FAD report shows a number of other houses in the vicinity. It also shows as Professor Tupholme pointed out large areas of undeveloped land. Due to its elevated position many of the properties have views to the south and east over Baildon Moor and to Saltaire. It may be that the name "Heather View" was deliberate.
The development
The development of the 5 dwellings in Heather View took place between 1973 and 1975. The developer was Mr Taylor. The dwellings were all constructed by a local builder — Brian Kay who was also the purchaser of 2 Heather View.
The history of relevant purchases of the 5 properties is set out in the following table:
Restrictive Covenants
| Property | Date | Event |
| 1 Heather View | 13 Feb 1974 | Conveyance to Professor and Dr Tupholme |
|
|
|
|
| 2 Heather View | 21 Jan 1974 | Conveyance to Mr Kay |
|
| 16 Jul 2008 | Mr Firth becomes registered proprietor. |
| 3 Heather View | 26 Mar 1975 | Conveyance to Mr and Mrs Newby |
| 4 Heather View | 2 Dec 1975 | Conveyance to Mr and Mrs Parker |
| 5 Heather View | 3 Aug 1975 | Conveyance to Mr and Mrs Calloway |
|
| 12 Jun 2000 | Mr and Mrs Howard become registered proprietors |
Each of the conveyances from Mr Taylor contains materially identical covenants. The material parts of the covenants in the Conveyance of 21 January 1974 ("the 1974 Conveyance") are contained in clauses 3 and 4 which provide:
3 For the benefit and protection of the adjoining or neighbouring properties now or formerly of the Vendor so that this covenant shall be binding on the property hereby conveyed into whosesoever hands the same may come the Purchaser for himself and his successors in title hereby covenants with the Vendor that he and his successors in title will at all times hereafter observe and perform the following restrictions and stipulations:-
(i) That he will not carry on or permit to be carried on on the property hereby conveyed any trade or business of any description nor use nor permit the same to be used for any purpose which may cause a nuisance or annoyance to the Vendors or to the Adjoining or neighbouring owners or occupiers…
(iii) That he will not erect on the property hereby conveyed any building of any kind whatsoever either temporary or permanent without first obtaining the written consent of the Vendor's Surveyor…
4 IT IS HEREBY AGREED AND DECLARED as follows:
…
(ii) that the Vendor or his successors in title owners of the adjoining or neighbouring properties remaining unsold may at any time release or vary any of the said aforesaid provisions and restrictions and the covenant by the Purchaser in respect thereof shall not operate to impose any restriction on the manner in which the Vendor may deal with any of the adjoining or neighbouring properties or to be deemed to create a building scheme…
It will be necessary to consider the effect of these provisions later in this judgment.
The proposed development
Mr Firth has made a number of attempts to obtain planning permission for the development of the northern part of the garden of No 2. Early attempts involved the construction of a two storey dwelling and were turned down.
In July 2011 he was granted...
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