Margerison v Bates
| Jurisdiction | England & Wales |
| Judge | EDWARD BARTLEY JONES QC |
| Judgment Date | 30 May 2008 |
| Neutral Citation | [2008] EWHC 1211 (Ch) |
| Docket Number | Claim No.: 6CH90083 |
| Court | Chancery Division |
| Date | 30 May 2008 |
[2008] EWHC 1211 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester, M60 9DJ
Edward Bartley Jones Qc Sitting as a Judge of The High Court In Liverpool
Claim No.: 6CH90083
Mr Nicholas Jackson (instructed by Halliwells of Liverpool) for the Claimant
Mr George Newsom (instructed by Stones of Exeter) for the Defendants
APPROVED JUDGMENT
HEARING DATES: 2 and 3 APRIL 2008
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION:
The claimant (“Mr Margerison”) has since 11 May 2007 been the owner of the freehold land known as Swaynes Jumps, Mill Lane, Willaston, Cheshire (“Swaynes Jumps”). Erected on Swaynes Jumps is a large flat roofed bungalow (“the Bungalow”). This dates, in all probability, from about 1966/1967. Swaynes Jumps itself is a substantial plot of land comprising (according to the Conveyance of 3 May 1966 to which I shall refer below) some 3,750 square yards.
Swaynes Jumps originally formed part of the garden of an adjoining freehold property then and now known as Priors Knock (“Priors Knock”). Erected on Priors Knock is a large dwelling house with generous gardens. Priors Knock has been owned by the defendants (“Mr and Mrs Bates”) since 1978.
In 1966 Swaynes Jumps and Priors Knock were in the common ownership of Jennie Fisher Horn (“Mrs Horn”). She conveyed away Swaynes Jumps by a Conveyance dated 3 May 1966 made between (1) herself and (2) Hugh Godfrey Badman (“the 1966 Conveyance”).
Mr Margerison now wishes to replace the flat roof on the Bungalow with a pitched roof. However, Mr and Mrs Bates object to this saying that, as the freehold owners of Priors Knock, they have the benefit of a restrictive covenant contained in sub-clause 2(c) of the 1966 Conveyance which enables them to prevent the pitched roof being erected.
Sub-clause 2(c) of the 1966 Conveyance was in the following terms:-
“(c) Not to make any addition or enlargement or alteration to the said bungalow [i.e. the Bungalow] outbuildings and motor garage without plans having been first approved by the Vendor and her consent thereto signified in writing such consent not to be unreasonably withheld”.
The following issues arise for determination in these proceedings:-
(1) on the true construction of the 1966 Conveyance is the reference to “the Vendor” in sub-clause 2(c) a reference only to Mrs Horn or, alternatively, a reference to Mrs Horn and her successors in title from time to time to Priors Knock (i.e. in the events which have happened is it a reference to Mr and Mrs Bates)? – Issue (1);
(2) if “the Vendor” in sub-clause 2(c) means Mrs Horn and only Mrs Horn then what is the effect of her death on 20 December 1977? As she is unavailable to give consent does this mean (as Mr Margerison claims) that the restrictive covenant contained in sub-clause 2(c) has been effectively discharged or does this mean (as Mr and Mrs Bates claim) that the restrictive covenant has become absolute (because no dispensing consent is available)? – Issue (2);
(3) if, but only if, “the Vendor” in sub-clause 2(c) includes, in the events which have happened, Mr and Mrs Bates than has their consent to the erection of the proposed pitched roof on the Bungalow been unreasonably withheld? Mr Jackson (who appeared for Mr Margerison) accepted that the burden of proof on this issue was on Mr Margerison – Issue (3).
I found Issue (3) to be easy of answer. In this I was greatly assisted by a site visit to the two properties which occurred on the morning of 2 April 2008. I was also greatly assisted at that site visit by the fact that Mr Margerison (and the Gregsons—whose relevance will become apparent below) had erected on the roof of the Bungalow – for my benefit – a mock-up of part of the pitched roof which it was desired to build. Much of the evidence, which I discuss below, goes only to Issue (3) but some, at least, forms part of the background factual matrix against which I must construe the provisions of the 1966 Conveyance. I will, therefore, discuss and analyse the evidence as a whole before turning to the specific Issues which I have identified.
THE LOCATION:
Willaston is a village on the Wirral which contains many expensive and highly desirable houses. The specific area in which Swaynes Jumps and Priors Knock are situated is one of mature woodland and greenery. The impression is not of houses with trees and greenery for their gardens but, rather, of houses situated within long established areas of woodland and greenery.
It is clear to me from inspecting the insides of both Priors Knock and the Bungalow that each of Mr Margerison (and his girlfriend who lives with him at Swaynes Jumps) and Mr and Mrs Bates are intensely house proud and take pleasure in living in such an attractive location.
As to Priors Knock this is a detached villa type residence probably built in the late 1920's. Even after the sale of Swaynes Jumps, Priors Knock was left with a very large garden indeed. Mr Bates, in paragraph 8 of his witness statement, described Priors Knock as “an imposing family residence surrounded by trees and is nicely secluded on all other sides by trees.” I would not quarrel with that description.
THE BASIC FACTS:
Mrs Horn lived at Priors Knock until her death on 20 December 1977. She had probably done so since Priors Knock was first erected. Mr and Mrs Bates purchased Priors Knock from Mrs Horn's executor in 1978 and they have remained there ever since. They emphasise that it is their family home and have no intention whatsoever to leave or to sell. On their death they intend Priors Knock to remain within their family.
When Mr Badman acquired Swaynes Jumps from Mrs Horn by the 1966 Conveyance there was no building thereon. Swaynes Jumps was merely part of the garden of Priors Knock. By sub-clause 2(a) of the 1966 Conveyance Mr Badman covenanted with Mrs Horn:-
“(a) Not to erect or build anything save one bungalow (of which the ridge height shall not exceed 20 feet) with suitable outbuildings and motor garage annexed attached or appurtenant thereto and to be occupied therewith upon the land hereby conveyed and not to use any such bungalow for any other purpose than as a private dwellinghouse or the professional residence of a medical practitioner or dentist. The said bungalow and buildings shall be erected only in accordance with plans and elevations to be first submitted to and approved by the Vendor in writing with a copy thereof for her retention and on such site as she shall first approve.”.
Mr Badman then erected the Bungalow. There is no evidence of the plans therefor, and the siting thereof, being approved by Mrs Horn but, equally, there no indication that they were not. The Bungalow is a substantial structure. It is approximately 98ft in length on the elevation facing Priors Knock. At one end there is a small protruding gable, again facing Priors Knock. Another larger gable faces away from Priors Knock. The Bungalow was built with a flat roof and built close to the boundary between Swaynes Jumps and Priors Knock. The distance from the Bungalow to the front elevations, and front door, of Priors Knock is (according to the Local Planning Authority) some 37.5 metres. There is presently in place a paling boundary fence between the two properties. That appears to be some 2 metres high and runs the whole length of the boundary. There is not much space between the Bungalow and that fence, especially at the gable end. However, various trees have been planted in the available space. The overall effect is to shield Priors Knock from seeing the bulk of the Bungalow from ground floor level. Rather what is primarily seen is the paling fence and the trees. Thus, from the two ground floor entertaining rooms of Priors Knock all that can be seen of the Bungalow is the tops of certain windows and the barge boards of the flat roof. However, from the first floor of Priors Knock there is a much clearer view of, and into, the Bungalow. This, in turn, has caused Mr Margerison effectively to reverse the outlook of the Bungalow so that its internal rooms look out over the lawns and not backwards towards Priors Knock.
One point which has been made on behalf of Mr Margerison is that sub-clause 2(a) of the 1966 Conveyance allowed for the building of one bungalow of a ridge height no greater than 20 feet. Therefore, it is said, as the overall height of the Bungalow with the intended pitched roof will be less than 20 feet Mr and Mrs Bates cannot reasonably withhold consent under sub-clause 2(c) to the erection of the pitched roof. That contention seems to me to be overly simplistic. Mrs Horn had the right under sub-clause 2(a) to approve the site for the new bungalow. Had Mr Badman built a bungalow with a ridge height of 20 feet Mrs Horn may well have wanted the same to have been sited far further into Swaynes Jumps and, hence, far further away from her boundary. The siting of the Bungalow so close to the boundary with Priors Knock could well have been authorised by Mrs Horn only because the Bungalow would have a flat roof. Without knowing what exactly passed between Mr Badman and Mrs Horn no definitive view can be expressed save to say that it cannot be said that it would be necessarily unreasonable (under sub-clause 2(c)) to object to a pitched roof giving an overall height of less than 20 feet.
Swaynes Jumps passed through the hands of various owners until it was acquired by Mr Haydn Gregson and his brother (“the Gregsons”) on 5 December 2003. Clearly their intention was to improve and renovate the Bungalow and...
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