Jaggard v Sawyer
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,Lord Justice Kennedy,LORD JUSTICE MILLETT |
| Judgment Date | 18 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0718-4 |
| Docket Number | FC3 94/5094/C |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 1994 |
[1994] EWCA Civ J0718-4
(His Honour Judge Jack Q.C.)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Kennedy and Lord Justice Millett
FC3 94/5094/C
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEYMOUTH COUNTY COURT
MR. M. TRENEER and MR. D. CAHILL (instructed by Messrs. Milne & Lyall, Dorset) appeared on behalf of the Plaintiff (Appellant).
MR. J. GRIGGS (instructed by Messrs. Clarke Willmott & Clarke, Crewkerne) appeared on behalf of the Defendants (Respondents).
MR. R. DRABBLE appeared as Amicus Curiae.
On 26th January 1993 His Honour Judge Jack QC, sitting in the Weymouth County Court, refused the plaintiff, Mrs Jaggard, injunctions to restrain continuing acts of trespass and breaches of covenant and awarded her damages in lieu. The plaintiff says the judge should have granted injunctions. This appeal requires the court to consider the principles on which judges should act when deciding whether to grant injunctions or to award damages in lieu.
The judge found the facts very fully in his judgment, which is reported in [1993] 1 EGLR 197, so no more than a brief summary of the facts is called for.
In Maiden Newton, in Dorset, there is a road, Bull Lane, which runs very roughly in an east-west direction. Off it to the north is a cul-de-sac known as Ashleigh Avenue. This is about 50 yards long and the roadway (excluding the pathway where there is one) is about 15 feet wide. The cul-de-sac was developed in about 1959. There were 10 houses. Numbers 1 to 4 lined the western side of the close (on the left as viewed from Bull Lane). Numbers 7 to 10 lined the eastern (right hand) side. At the far (or northern) end of the cul-de-sac were a semi-detached pair of houses numbered 5 and 6.
When Ashleigh Avenue was being developed and plots sold, covenants were given and taken in the same terms in each case, so as to bind and confer benefits on all the original owners and their successors against and in favour of each other. The Avenue was a private road, and there was conveyed to each of the original owners not only the numbered plot on which his house was or was to be built but also the area of roadway immediately in front of that plot, up to the centre of the roadway.
Two of these standard mutual covenants are in issue in this case, and I quote them :
"(c) No house or building to be erected on any part of the said land shall be used as or for a hotel tavern clubhouse or for the sale of wines spirits ale or beer (for consumption either on or off the premises) or as a hospital or as a place of amusement or resort or as a caravan site or in any manner calculated or likely to be a nuisance or cause annoyance to the Vendors or adjoining owners or residents or the neighbourhood or in any manner otherwise than as a private residence only and no part of the said land which is unbuilt upon shall be used otherwise than as a private garden.
(d) The Vendors having constructed the said roadway known as Ashleigh Avenue and having laid the sewer therein as aforesaid the Purchasers and their successors in title shall keep the said roadway in good repair to the half width thereof abutting on the property hereby conveyed and consisting of the portion of the said roadway coloured [blue] on the said plan "
In 1980 the plaintiff and her husband (who has since died) bought and moved into 1 Ashleigh Avenue. In May 1987 the defendants, Mr. and Mrs. Sawyer, bought and moved into number 5, the house at the north-western end of the Avenue. They were a young married couple. Their first child was born in August 1987. Their house had only two bedrooms and they wanted more room. Their first idea was to build on. Then they thought of building a separate house in the garden of number 5. They applied for planning permission in April 1988. But the plaintiff organised a petition to oppose the grant of planning permission, and all but one of the other residents in the Avenue supported her. The petition referred to the fact that the Avenue was a private road, for the use of residents of the 10 existing houses. Planning permission was refused, apparently because there was not enough room to accommodate a second house on the plot of number 5.
The defendants had to think again. An alternative solution presented itself. Immediately to the west of Ashleigh Avenue was 13, Bull Lane. This was a property fronting on Bull Lane. Its garden ran northwards, parallel with Ashleigh Avenue, contiguous with the gardens of 1, 2, 3, 4 and 5 Ashleigh Avenue. The owner of 13 Bull Lane was willing to sell a plot of land at the far, northern, end of the garden, abutting on 5, Ashleigh Avenue. The defendants were willing to buy, subject to obtaining planning permission. Their plan was to build a new house, 5A Ashleigh Avenue, on this plot. They proposed that a strip of land, part of the garden of 5 Ashleigh Avenue adjoining its boundary with number 4, should be used as a driveway into 5A, giving it access to Ashleigh Avenue.
The defendants applied for planning permission to develop number 5A in this way and it was granted. But not without opposition. The plaintiff and others made clear their objection to the development, based both on the restrictive covenants and the fact that Ashleigh Avenue was a private roadway. These objections did not prevail. The plot of 5A was duly conveyed to the defendants. Building work began on 14th June 1989.
The judge made a number of relevant findings on the period between the grant of planning permission and the completion of the building work :
(1) The defendants made no secret of their intentions. In May 1989 Mr Sawyer visited the plaintiff and told her that he was going ahead and would start building soon.
(2) On a number of occasions between February and May 1989 the Dorset County Council expressed the opinion that Ashleigh Avenue was a public, not a private, road. Not until July 1990 did the County Council change their view. But change it they did, and before the judge it was common ground that the road was private, as the plaintiff and other residents had all along contended.
(3) The defendants were advised that there might be a problem about access. The judge found (at page 198 F of the report) that
"Mr Sawyer was aware of the covenants regarding the no. 5 land and that he could not build on that land. He does not seem to have appreciated that there might be a problem in using part of the no. 5 land as a driveway for no 5A"
And Mr Sawyer was no doubt encouraged by the County Council's view that Ashleigh Avenue was not a private road.
(4) The plaintiff persisted in her view, shared by other residents, that the proposed development of number 5A would be a breach of covenant, entitle the occupier to no right of way over Ashleigh Avenue and involve acts of trespass if the occupier used the Avenue for access. On 13th June 1989 (the day before work began) solicitors instructed by the plaintiff and others made these points to Mr Sawyer at 5 Ashleigh Avenue and wrote:
" We must therefore ask you to discontinue forthwith any development or proposed development on you[r] land failing which we will be asked to take proceedings in the appropriate court for an injunction to restrain you from developing the land."
On 21st June the same solicitors, acting on behalf of the plaintiff and two other named residents, wrote again, this time to the defendants' solicitors, emphatically stating that access to number 5A via Ashleigh Avenue would be a trespass and further stating that an interlocutory injunction would be sought if work were not stopped pending application to the court for a declaration. On 4th July 1989 the plaintiff's solicitors wrote to the defendants' solicitors again : in this letter reference was made to Bracewell v Appleby [1975] Ch 408, a case (discussed below) in which damages were awarded in lieu of an injunction, and the letter continued :
"We are giving further consideration to the possibility of seeking an injunction and will be taking our client' instructions as to that, but we do anticipate that in any event we shall be instructed to seek the alternative remedy that we have advised our clients is available to them."
This point was repeated in much the same terms in another letter a week later.
(5) No application for interlocutory relief was made to the court by the plaintiff or anyone else. The plaintiff says that she instructed her solicitors to apply for an interlocutory injunction and they did not do so. But it is not suggested that the defendants knew of these instructions.
(6) To mitigate the nuisance which builders' traffic would otherwise have caused to the residents of Ashleigh Avenue, the defendants negotiated a temporary arrangement with the owner of an industrial estate lying to the north of the Avenue and adjoining number 5A. This arrangement gave the builders access to the building site without using Ashleigh Avenue. There was some discussion between Mr Sawyer and the owner of the industrial estate about permanent access, but the negotiation was not pursued. Nor, at the trial, was it contended that there was any access to number 5A otherwise than via Ashleigh Avenue, and the judge proceeded on the basis that the only access was via Ashleigh Avenue (page 199C of the report).
(7) In July 1989 a further child was born to the defendants. Living in number 5, they were somewhat cramped.
(8) Proceedings were issued on 10th August 1989. By then the walls and roof of the new house at...
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