Theodossiades v Smith and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice King |
| Judgment Date | 23 April 2015 |
| Neutral Citation | [2015] EWCA Civ 566 |
| Date | 23 April 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2015/0296 |
[2015] EWCA Civ 566
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE GERALD)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice King
Case No: B2/2015/0296
Mr Phillip Coppel QC (instructed by Landau & Cohen) appeared on behalf of the Applicant
Mr Nicholas Trompter (instructed by Mishcon de Reya) appeared on behalf of the Respondent
Order: Application refused.
This is the applicant's application for permission to appeal an order made by His Honour Judge Gerald siting in the County Court in Central London on 16 January 2015 whereby it was ordered that:
"The Preliminary Issue (namely 'Whether the intended development in respect of which permission was granted by the Secretary of State for Communities and Local Government … on 8 August 2012 constitutes a "conversion" within the meaning of Section 610 of the Housing Act 1985') be answered 'no'."
An application for permission to appeal was refused by His Honour Judge Gerald and then by Lewison LJ on 4 March 2015 and is renewed today by Mr Coppel QC before this court.
Background
The proposed appellant is and has been since 18 January 1985 the registered proprietor of freehold land known as Gaisgill. Gaisgill is subject to certain restrictive covenants imposed by a conveyance dated 12 August 1986 and the covenants can be summarised as follows:
"Not to erect on the property more than two private dwellinghouses…
[…]
Not to use or permit the property or any part thereof to be used … for any other purpose other than the erection of one private dwellinghouse or two private dwellinghouses."
When acquired by the applicant, Gaisgill comprised a large plot of land with a single substantial Victorian dwelling house built towards the front with a large garden at the back. By a transfer dated 15 April 1988, the applicant sold off the rear and part of the side part of Gaisgill and a single dwelling house was built on the transferred land which came to be known as Copperfields and is owned by the first and second respondents. It follows, therefore, that two dwelling houses exist on the land originally conveyed by the conveyance.
The applicant now wishes to develop Gaisgill and planning permission was granted on 8 August 2012. The judge described the proposed development as follows:
"… it involves the complete demolition and removal from site of the existing building and its extensive rear terrace and the construction in its place of a much larger property which will have a basement extending 9.5 metres below the surface. There will be a total of three additional floors, being the ground floor, first floor and a second floor in the eaves of the new building. That new enlarged building will comprise six large two bedroom flats … The orientation of the new building will be slightly different from the existing building. The basement footprint will be almost twice the size of the existing ground floor footprint. The new ground floor footprint will be almost twice the size of the existing ground floor footprint, although in the planning documentation it is represented that it will be more or less the same, but that is only achieved by treating the large rear terrace as being part of the ground floor which it is not."
It is common ground that the proposed development will breach both of the restrictive covenants; it was in those circumstances that having obtained planning permission, the applicant issued the present claim under section 610 of the Housing Act 1985 (as amended by section 88 of the Local Government and Housing Act 1989).
In his oral submissions to me today, Mr Coppel drew my attention to the fact that planning permission itself having been granted is not a determining factor, but that section 610 should not be used as an opportunity to re-run issues which have been raised by opponents to the planning permission at the planning stage. Section 610 is not concerned with the fact of planning permission, but the fact that planning permission can only be implemented if restrictive covenants which have, effected the land for decades, are removed. Mr Coppel further submitted that the judge did not like what Mr Coppel referred to as overdevelopment of the land, but the issue is not whether there will or will not be overdevelopment. Having read carefully the judgment of the judge, it does not seem to me that this judge was in any way attempting to subvert the planning permission that had been granted or, that he had formed a personal view that it represented over development and should be frustrated. The passages that I have just read out, in my judgment, are there not to express a personal view, but to show just how different the extent of the development in respect of which planning permission has undoubtedly been granted is from the site as it is at present.
Section 610 of the Act provides as follows:
"(1) The local housing authority or a person interested in any premises may apply to the county court where:
(a) owing to...
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