Re Truman, Hanbury, Buxton & Company Ltd's Application
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER |
| Judgment Date | 28 October 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J1028-2 |
| Court | Court of Appeal |
| Date | 28 October 1955 |
[1955] EWCA Civ J1028-2
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Sir Reymond Evershed).
Lord Justice and
Lord Justice Romer.
I will ask Lord Justice Romer to deliver the first Judgment.
This is an appeal by Truman, & Co. Ltd. against an Order of
Section 84, sub-sectio (1), of the Law of Property Act is in the following terms: "The Authority" – that is now the Lands Tribunal – "hereinafter defined shall (without projudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold load affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) on being satisfied - (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Authority may deem material, the restricution ought to be deemed obsolete, or that the continued existence thereof would impede the reasonable user of the land for public or private purposes without securing practical benefits to other persons, or, as the case may be, would unless modified so impede such user; or (b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agree, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or (c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restrictin". Then there is a proviso as to compensation, which I need not read.
The facts which the Arbitrator found to be either proved or admitted are set out in paragraph 8 of the Case, and so far as material are as follows: After stating that the land the subject of this application formed part of a large area of land know as the Leigh Park Building Estate, which was laid outin plots as a building estate in 1898, he says: "The covenants as framed applying to the plots indicate that it was intended that the whole estate should be residential. Development did not take place generally upon the estate until 1925. When such development did take place a number ofshops were erected fronting to a portion of the London Road and some houses which had previously been erected fronting thereto have been converted into shops. On let April 1925 the restriction on the use of premises at the corner of park Road and London Road for licensed premises was released so far as it could legally be so released by the successors in title of Mr Higgins" – Mr Higgins being the original vendor – "so as to permit of its use for off-licensed premises and it is now so used". "The gardens of four objectors who own dwellinghouses in Gordon Road (who were admitted to be entitled to the benefit of the restrictions) adjoin the land, the subject of this application. The London Road was, until the construction of the new arterial road, the main approach to Southand from London. It still carries a heavy load of traffic and is particularly used during the summer months and especially at week-ends by visitors to Southend. The use of on-licensed premises on the land the subject of this application by such casual visitors travelling by coach or motor car to or from Southend would have a detrimental effect upon the value of dwellinghouses in Gordon Road and would seriously interfere with the amenities of these residents therein whose gardens adjoin the land the subject of this applications". Permission for the use of the land for on-licensed premises has been given and a justices full on-licence granted. Then finally: "The Applicants hope to attract to the propsed licensed premises casual visitors travelling by coach or motor car to and from Southend".
On those facts he made certain findings, which appear in paragraph 12. Amongst such findings Mr Simes says this: "I was satisfied that there is no doubt a change so far as London Road is concerned, but I was not satisfied, applying the principles laid down by Mr Justice Farwell in Chatsworth Estates Co. v. Eswell, 1931 1 Chancery, 229, that that change would justify no in saying that the covenant in relation to licensed premises has been rendered obsolete". Then: "I was satisfied that the objectors in Gordon Road who were admitted to be entitled to the benefit of the restriction would be injured if the discharge or modification of the sought was granted, and I therefore the applioation". Then: "In the present case, satisfied as I was that the discharge or modification of the covenant so as to permit the of on-licensed premises on the land would seriously injure persons admitted to be entitled to the benefit of the covenant, I should in the exercise of the discretion to which I have referred have refused the application".
The particular ground upon which the application was made, and upon which it is now still sought to support it, is that the covenant in question ought to be deemed obsolete within the meaning of sub-section (1)(a) of Section 84 having regard to the changes which have taken place in the character of the property or the neighborhood since l898. The main attack which Mr Squibb has levelled on the Tribunal's decision is founded upon his reference to the principles laid down by Mr Justice Farwell in Chatsworth Estates Co. V. Fewell, and which Mr Erskine Simes said that he was applying. Mr Squibb said, and rightly said, that the Chatsworth Estates case was not a case under Section at all, and Mr Squibb submit that the which were there laid down by Mr Justice Farwell are not applicable to cases under Section 24.
In that case, which was brought by the trustees of the well-known Chateworth Estates at Eastbourne,...
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