Re Ghey and Galton's Application
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PEARCE |
| Judgment Date | 16 July 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0716-3 |
| Court | Court of Appeal |
| Date | 16 July 1957 |
[1957] EWCA Civ J0716-3
The Master of the Rolls
(Lord Evershed),
Lord Justice Morris And
Lord Justice Pearce.
In The Supreme Court of Judicature
Court of Appeal
Mr. G.H. JECSWAN . and Mr. LIONEL ABLL-SMITH (instructed by Messrs. & Co.) appeared on behalf of the appellants (Objectors).
Mr. P. INGRESS BELL. ., Mr. W.B. HARRIS and Mr. W.J. GLOVER (instructed by Messrs. meyncids, Gorct & Porter) appeared on bailiff of the Respondents the Metal Box Company Limited.
: In my judgment, the decision of the Lands Tribunal in this case ought not to stand. The application to the Tribunal was made by two ladies, Miss Ghey and Miss Galton, of the "Blunt House," Eastbourne, asking for an Order that certain restrictions (which I will more particularly specify in a moment) "may be modified" (I am reading from the Application) "by permitting the use of the said premises" (that is, "Blunt House") "as a Convalescent Home or Rest Home".
It appears that Miss Ghey and Miss Galton were then in some kind of negotiation with the Metal Box Company Limited. At any rate, before the Tribunal it was made plain that the rest home proposed vms one that would be conducted by the ivletal Box Company Limited or by a subsidiary company of the Metal Box Company Limited known as the Metal Box Benevolent Fund Limited, the intention being that thic house should be adapted for use as a convalescent home or rest home for persons in the employ of the Metal Box Company Limited.
In this court it has been made clear to us that, whatever the interest now remaining in Miss Ghey and fjiss Galton (if any), Mr. Ingress Bell has the instructions of the Metal Box Company Limited and its subsidiary, so that we are dealing with the case upon the footing that they are persons interested in "Blunt House" and they are the effective Applicants for the order of indification. No question, therefore, turns upon the locus standi of any of the parties.
The Respondents to the application, and the Appellants in this Court, are understood to be the present Duke of Devonshire, and two other persons, in whom, as trustees, is vested the legal estate in certain property known as Compton Place. Again, no question arises as regards title. The present Appellants are conceded to be the persons in whom the beneficial interest in Compton Place is vested, subject to an outstanding lease and to a licence, and they are the persons who are entitled, in that capacity, to the benefit of the covenants with which we are concerned.
The locus in quo has "been illustiated for us "by a plan called Flan B," which shows Compton Place, a considerable area in the north, and forming a segment of a circle of half a mile diameter. The area enclosed by the circumference of that circle is (putting it quite broadly) a residential area in Eastbourne. In saying "residential," I am intentionally distinguishing this area from others (which no doubt would not be difficult to find in Eastbourne) occupied by hotels and similar accommodation intended to provide for visitors to Eastbourne. The greater part of the houses, if you take the numbers, undoubtedly consist of residences – either single houses used as such as residences, or, more commonly, houses which have been converted into more than one dwelling-house in the form of flats and maisonettes. But it is true (and this, I think, is perhaps at the bottom of much of the argument of the Respondents) that certain premises – some of them not negligible in extent – in the area are occupied for what Mr. Ingress Bell has called institutional purposes, that is to say, for the most part for educational purposes, schools of one kind and another– and in one instance as a rest home, that last-mentioned instance being on the very perimeter of the circle.
I shall come back to say more in regard to the circumstances in which these institutional occupations came into existence; but I return for the moment first to the Application. It conveniently appears from the Application what were the restrictions of which modification or discharge was desired, and they are, so far as relevant, contained in two deeds, one dated in 1908 and one in 1945. Before I proceed to state what the nature of the restrictions is, I repeat the dates – 1908 and 1945; for those dates make at least this much clear, that these were not covenants which had been bequeathed to the 20th century by those who developed their land 100 or more years ago, when social conditions were wholly different from those which obtain to-day.
The covenants may be said to reflect a certain propensity among conveyancers for repetition; but the substance of them is that they prohibit any use of any part of the land other than as private dwelling-houses without the consent in writing of the covenantee. In actual fact (as 1 have indicated) the covenants are much longer, They specifically prohibit schools, hotels, public-houses, and any trades or businesses and so forth. But the aim - the purpose - of them plainly is the preservation of the subject-matter (and the same applies to the whole of this circular area indicated on the plan) as a strictly residential area. To that statement, however, it is necessary and right to observe at once that from 1908 (the date of the first covenant mentioned in the Application) certain parts of the area had already been utilised for educational purposes – that is, for schools of one sort or another. A comparison of Plan "B" (which shows the character of the occupation of the area at the present time) with another plan. Plan "C" (which indicates the situation in 1908) shows that, by and large, the number and identity of the institutional uses has not much changed. One or two become so used, and one or two that were so used have now come back to private occupation.
I said a little time ago that I would specify a little more precisely the circumstances in which these schools are being carried on We have looked at the documents of title to each one of them, but we have looked at one, the grant of a licence for use as a school (made in fact to these these ladies, Miss Ghey .and Miss Galton) of the house in question, "Blunt House1". It is not necessary to read at length the conditions of the licence. It is sufficient to say that they were extremely strict. To take but one example, although a licence was given for use of the promises as a girls' school, any form of game, organised or not, on any day of the week, was prohibited. And it is indeed manifest that the terms of the licence were designed to protect people who were living in what was, and was intended to remain, a residential neighbourhood, from the sort of disturbance that might happen if the kind of activities which would otherwise be associated with a school were permitted, Similarly, as regards the use of the plot known as "Elstreo" (in the extreme south-west of the area) as a rest home, the terms of the licence again were most stringent; and the licence is determinable upon three months' notice.
That, I hope, is sufficient of the background and justifies the statement which I made earlier that the particular area enclosed in the half-mile diameter circle in Plan "B" is a residential area, strictly so called and plainly intended strictly to "be so maintained. It is, however, said by the Applicants, as regards "Blunt House", "Well, first the Metal Box Company is" (as is plainly the fact) "a responsible undertaking and it can be assumed that the conduct of any rest home or convalescent home by the Metal Box Company Limited, or under its directions, will be carried out with the utmost propriety". What is more, it is said that "Blunt House," having been given a licence for school use, may be classified, for present purposes, as of an institutional character already, so that there is no great transition endured if you say that "Blunt House" will no longer accommodate girls of 16 but will rather accommodate the sick and ailing employees of the Metal Box Company Limited; and of course there is, from what one might call a broad, human point of view, much to be said for that view. But the first thing that it is necessary to do...
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