Shebelle Enterprises Ltd v The Hampstead Garden Suburb Trust Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 22 April 2013 |
| Neutral Citation | [2013] EWHC 948 (Ch) |
| Date | 22 April 2013 |
| Court | Chancery Division |
| Docket Number | Case No: HC12C04705 |
[2013] EWHC 948 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Royal Courts of Justice
Fetter Lane, London, EC4A 1NL
Mr Justice Henderson
Case No: HC12C04705
Mr Jonathan Seitler QC (instructed by Berwin Leighton Paisner) for the Claimant
Mr Tom Weekes (instructed by Lee Bolton Monier-Williams) for the Defendant
Hearing date: 20 February 2013
Introduction and background
This case is about a proposal to build a substantial basement extension to a property which stands on the top of a hill in Hampstead Garden Suburb. The property is at 2 Green Close, London, NW11 ("2 Green Close" or "No. 2"). It is owned by Mr Scott and Mrs Melissa Franklin ("the Franklins"). They are the freehold owners, but since 2 Green Close (in common with many other properties in the area) was originally held under a long leasehold title which was enfranchised under the Leasehold Reform Act 1967, there is a scheme of management in place ("the Scheme"), made and approved by the High Court in accordance with the provisions of the 1967 Act, which regulates their rights as owners in various material respects.
The Scheme was approved by the High Court on 17 January 1974, and was amended by a further order of the court dated 17 February 1983. Its stated purpose was that of "ensuring the maintenance and preservation of the character and amenities of the Hampstead Garden Suburb", and it extended to all enfranchised properties within the area shown on the annexed plan. The rights and powers of management under the Scheme are now exercisable by the Hampstead Garden Suburb Trust Limited ("the Trust"), the defendant in the present proceedings, which is a company limited by guarantee and a registered charity. Until January 2007 the Trust was known as the New Hampstead Garden Suburb Trust, and it was therefore referred to in the Scheme under that name.
By virtue of clause 3 of the Scheme, the Trust is to "be treated as the Landlord for the time being" for the purposes of the Scheme. This provision reflects section 19(7) of the 1967 Act, which says that the operation of a scheme "shall not be affected by any disposition or devolution of the landlord's interest in the property within the area", but that the scheme must identify "the person who is for the purposes of the scheme to be treated as the landlord for the time being". Clause 4 of the Scheme then provides that:
"The provisions of this Scheme for regulating the use appearance and maintenance of enfranchised property and for the maintenance of property or land or roads used or enjoyed or capable of being used or enjoyed by the owners in common with others shall be as set out in the Scheme Schedule hereto."
Clauses 1 and 2 of the Scheme Schedule stipulate that:
"1. Without the prior written consent of the Trust no garden or yard or forecourt of an enfranchised property shall be built upon nor shall the general appearance thereof be substantially altered or any garden substantially paved over.
2. Without the consent as aforesaid no alteration shall be made to the external appearance of any building for the time being standing on an enfranchised property."
By virtue of clause 10 of the Schedule, where the consent of the Trust is required the application for such consent must be made in writing to the Trust's management office, and "such consent shall not be unreasonably withheld". Sub-clauses 10(C) and (D) go on to provide that:
"(C) the Trust may where appropriate require the submission of proper plans and specifications in respect of any application for such consent
(D) the Trust shall not as a condition of its consent require the payment of any fine or sum other than its reasonable costs and expenses incurred in considering such application (whether or not consent is given)"
In accordance with these provisions, on 29 June 2011 the Franklins applied in writing to the Trust for consent to carry out extensive works on 2 Green Close. Before making the application they had informally discussed their plans with officers of the Trust, and had been advised that the construction of a basement swimming pool in the rear garden of the property might be acceptable in principle. There had also been two site visits, the second of which was attended by the Trust's architectural adviser, Mr David Davidson. The application was for the construction of a first floor extension on both wings of the house, a basement under part of the rear garden, a new garage, and the conversion of an existing garage. The single storey basement area was intended to contain a new playroom, wine cellars, a plant room and a swimming pool.
Notice of the application was sent to neighbouring properties, including 3 Green Close which is the home of Sir Victor and Lady (Sylvia) Blank and their family. Unlike 2 Green Close, the freehold title to 3 Green Close is not an enfranchised leasehold and it is currently vested in the Trust as the landlord under a 999 year lease ("the Lease") granted on 16 January 1931 by the Trust's predecessor body, the Hampstead Garden Suburb Trust Limited ("the Old Trust"), following construction of the property on what had previously been a vacant building plot known as 45 Wildwood Road. The lease is now vested in the claimant, Shebelle Enterprises Limited, which is a company owned and controlled by Sir Victor. He and his wife occupy 3 Green Close pursuant to a sub-lease for a term of 10 years from 1 April 2011.
The Lease contains a covenant for quiet enjoyment in standard terms, as follows:
"15. The Lessees paying the yearly rent hereby reserved and performing and observing all the covenants conditions and agreements herein contained and on the Lessees' part to be performed and observed shall and may quietly hold and enjoy the said demised premises during the said term hereby granted without any lawful interruption or disturbance from or by the Lessor or the successors or assigns of or any person claiming under the Lessor."
It is common ground that the benefit of this covenant is currently enjoyed by the claimant, under the doctrine of privity of estate, and that the obligation to comply with it lies upon the Trust as the successor in title of the original landlord.
3 Green Close is situated at the foot of the hill, immediately below and to the north west of 2 Green Close. It fronts onto Wildwood Road and the Hampstead Heath extension. In common with several of his near neighbours whose properties are on lower ground than 2 Green Close, Sir Victor was very concerned that the proposed basement development at No. 2 might affect the movement of ground water in a way that would have an adverse impact on his property. He made his concerns known to the Trust, and in early September 2011 sent a detailed letter of objection, accompanied by a report by Dr Nick Haycock of Haycock Associates Limited entitled "Green Close NW11 — Initial Hydrological Issues for Consideration".
Dr Haycock is a distinguished hydrologist and soil expert, who has for many years advised and acted for national bodies such as the National Trust, English Heritage and the Environment Agency on a range of soil and water management issues. He was assisted in the preparation of his report by Mr Drew Carthew, whose particular expertise lies in ground water issues and the management of so-called basement impact assessments.
In his report Dr Haycock explained how a procedure for assessing the potential impact of basement developments had recently been established by the London Borough of Camden, following an incident in which actual damage had been caused to a property as a result of a basement development in unstable strata on the Hampstead Ridge. Dr Haycock said that in his experience a basement impact assessment of this type is needed anywhere within the catchment areas of any of the Hampstead Heath ponds. Wildwood Road lies within the catchment of the Heath Extension ponds. Furthermore, 2 Green Close is situated on or close to a geologically sensitive boundary between the Claygate Beds and London clay. Dr Haycock expressed the view that seepage and ground water movement at the boundary was a matter of considerable concern, and that "issues with basement developments locally to the Hampstead and Highgate chain of ponds [have] centred around the flux of water at this geological boundary". In his "initial summary observations" he said that these geological factors, taken with evidence of the experience of local residents, led to the conclusion that the area of the proposed development at 2 Green Close should be defined as "unstable", and that this would strengthen the case for preliminary investigations to be carried out before the application was considered by the Trust and the local planning authority (which is the London Borough of Barnet).
The Franklins' application was first considered by the Property and Plans Committee ("the PPC") of the Trust on 6 September 2011. Details of objections by three local residents were included by Mr Davidson in his report to the committee. As Sir Victor's letter of objection had been received only the day before, it was reported on orally. In his report Mr Davidson acknowledged the concerns which had been expressed, and recommended that a hydro-geological report should be obtained before any grant of provisional consent for the development. The minute of the meeting recorded that:
"Although the proposed extensions are significant they would be acceptable for a house in this location. Further investigation on ground water movement is required and the applicant will be asked to ensure gardens below his plot are not affected as a result of the basement."
This minute was ratified at the meeting of the Trust's Council on 13 September 2011.
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