Perlman v Rayden
| Jurisdiction | England & Wales |
| Judge | Mr Justice Patten |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] EWHC 2192 (Ch) |
| Docket Number | Case No: HC02 C03739 |
| Court | Chancery Division |
| Date | 07 October 2004 |
[2004] EWHC 2192 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Patten
Case No: HC02 C03739
& HC03 C03589
Michael Driscoll QC and Kevin Leigh (instructed by Lucas McMullan Jacobs) for the Claimant
Derek Wood QC and Marc Dight (instructed by Teacher Stern Selby) for the Defendants
Hearing dates: 29 June —9 July, 22 —23 July & 26 —29 July 2004
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.
Introduction
This is the culmination of a long and increasingly bitter dispute between neighbours. The Claimant, Mr George Perlman, is a US attorney specialising in tax and trust matters, who divides his time between Europe and the USA. He owns and lives at 6A Elm Tree Road, St Johns Wood with his wife Naomi and their two children. He first occupied 6A as a tenant in 1990, but purchased the house in 1994. It is now worth almost £4m. The Defendants, Mr Paul Rayden and Mrs Claire Rayden, own and live at No 6 Elm Tree Road with their two children. Mr Rayden is the director of a property management company. They purchased this house in 200It is now worth about £3m.
Both houses form part of a small development of three houses (6, 6A and 8A) which was carried out in the mid 1980s on land formerly owned by the Trustees of Middlesex County Cricket Club. The site backs on to Lords Cricket Ground. Prior to the development it consisted of No 6 and its garden (a house which was built in the 1950s) and accommodation used by ground staff. The site (with other adjoining land) was sold to a development company (Stimbrey Investments Limited) in September 1978. This company sold on the land in 1979 to Satyrus Limited, which then proceeded to carry out the development. This involved alterations to No 6 and the construction of two new houses (6A and 8A) on what had previously been part of the garden of No 6 and a roadway or drive providing access to the cricket ground between Nos 6 and 8 Elm Tree Road.
The result of the development was to create what is best described as a cul-de-sac leading off Elm Tree Road. This roadway provides access to all three houses and their garages. It has been referred to throughout the trial as "the roadway" and I shall adopt that description in this judgment. The roadway runs, for most of its length, along the front elevation of No 6, which contains the front and garage door of that property. At the end of the roadway furthest away from Elm Tree Road is No 8A, which has its own integral garage and front door, where the roadway terminates. To the right as one faces No 8A is No 6A, in front of which is a short additional length of paved roadway running at right angles to the roadway and leading up to the front and garage door of No 6A. This section of roadway has been referred to as the driveway (to distinguish it from the roadway) and I shall do the same.
Both the roadway and the driveway form part of the title to No 6A. The owners of 6 and 8a have rights of way and rights of entry for the purpose of carrying out repairs to their own properties over the roadway. The owner of 6A also has a right of entry over No 6 in order to carry out repairs to his property.
Mr and Mrs Rayden completed the purchase of No 6 on 28 th July 2001 for the sum of £2.35m. They were already acquainted and on friendly terms with Mr and Mrs Perlman. They had previously lived at a house in Abbey Gardens, London NW8, which was too small for them, and had not been able to obtain planning permission to extend that property. One of the attractions of 6 Elm Tree Road was that it had the benefit of a planning permission to extend the existing accommodation. This had been obtained by the vendor of No 6 (Mrs Sacks) in 1991 and had been extended in duration on 6 th November 1996. It permitted extensions to No 6 on the garden side at ground and first floor level and the construction of a portico over the front door, which was situated close to the garage door of No 6 near the Elm Tree Road end of the roadway. This planning permission had not been implemented by Dr and Mrs Sacks, but they had constructed a metal-framed conservatory in the garden of No 6 at ground floor level, leading off from the central bay of the house. One of the issues in this case is how far down the garden towards the boundary fence with No 4 Elm Tree Road this conservatory extended, and in particular what sort of gap there was between the end of the conservatory and the boundary fence. This is relevant to the works involving a new extension to No 6 which Mr and Mrs Rayden carried out.
It seems to be common ground that on 5 th October 2001 Mr and Mrs Rayden had dinner with Mr and Mrs Perlman and told them something of their plans to rearrange No 6 and in particular the ground floor of that property. I shall come to the evidence in more detail later, but Mr Perlman accepted that he was told that this was likely to include the construction of some kind of family-room extension at the rear of the property and the moving of the front door. Mrs Perlman said that there was no discussion of moving the front door, but I do not accept that evidence. The Raydens had instructed an architect to prepare a design and plans of the proposed extension. This was Mr Kevin Izod. He prepared design sketches and later measured drawings which were used by Fibbens Fox Associates, a firm of planning consultants instructed by the Raydens, as the basis of a planning application made to Westminster City Council on 5 th December 2001. This sought permission for various works of extension and alteration to No 6, including the repositioning of the front door to a central location in the front elevation of the house; the alteration and repositioning of windows at ground and first floor level in that elevation; the extension of the house at first floor level over part of what was then a single-storey extension of the house, including the front door and garage; and the construction of a new ground-floor family-room with a pitched glazed roof in the section of the garden of No 6 closest to its boundary with No 6A.
These works had a number of consequences for the Perlmans. The first-floor extension involved altering and extending the roof at the Elm Tree Road end of the house, to accommodate what is now a new bedroom. This necessitated additional guttering, with an overhang above the roadway. The new front door and windows would not only change the appearance of the front of No 6, but would obviously necessitate a new point of pedestrian access to the house. A particular complication was that the section of the roadway in front of the new entrance was at that time a planted area, laid out in accordance with the scheme approved in connection with the planning permission for the original development in the 1980s. The new entrance would involve access over this area. Most obvious, in visual terms, was the effect of the family-room extension. Until then the boundary between the garden of No 6 and the driveway had been maintained by a brick wall (belonging to No 6A) on top of which Mrs Sacks had been allowed to attach a section of painted trellis. Under the Raydens' plans, this would be replaced by a permanent structure in the garden of No 6, close to the boundary. Instead of a trellis, the Perlmans would be faced with a solid wall several feet higher than their existing boundary wall.
Planning permission was granted in February 2002. It included permission for the family-room and first floor extension, but the planning authority took the view that the alterations to the windows and doors in the front elevation constituted permitted development under the General Development Order, because they were within the curtilage of an existing building and were to be carried out on land belonging to the owners of No 6. This was in fact wrong, because the Raydens did not, of course, own the roadway, and this error on the part of the planning authority seems to have stemmed from the location plan submitted by Fibbens Fox, which appears on one view to indicate that the roadway and No 6 were in common ownership. One of the issues I have been asked to resolve is whether the plan, coupled with the terms of the planning application, was inaccurate in this regard and, if so, whether this was part of some deliberate attempt by the Raydens to mislead the planning authorities.
The other aspect of the planning permission which I need to mention by way of introduction is the length of the family-room extension. Mr Izod's evidence (confirmed by measurements he produced from the relevant plans) is that he based his drawings of the ground floor dimensions on the plans produced by Gebler Tooth Partridge ("GTP"), the firm of architects who prepared the plans used to obtain the earlier planning permission for Dr and Mrs Sacks. From these plans he measured off the size and position of the old conservatory (5.1 metres in length) and drew the new family-room so that it extended only to the same length from the house. Planning permission was granted in February 2002 for a family-room extension of this size. Mr Izod did not confirm the size of the existing conservatory, as built, by taking measurements on site, but following the grant of planning permission he prepared a further set of drawings for use by the contractors who were to carry out the work. These show the proposed internal layout, but also include the position of the boundary fence between No 6 and No 4. There is a 1.6 metre gap between the end of the family-room for which planning permission was granted and that boundary fence....
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