Leeds LS1 3BG
B e f o r e :
| (1) GEOFFREY EDWARD TUPHOLME
(2) ANNE TUPHOLME
(3) BRENDA MARY NEWBY
(4) ARNOLD PARKER
(5) JOAN EILEEN PARKER
(6) JAMES DAVID HOWARD
(7) LINDA MARILYN HOWARD
|- and -
|IAN ANTHONY FIRTH
Paul Lakin (instructed by Burr Sugden) for the Defendants
Hearing dates: 7 – 9 September 2015
Crown Copyright ©
Judge Behrens :
2. The facts
|Site area (m2)||Dwelling area (m2)|
|1 Heather View||1198||118|
|2 Heather View||1262||156|
|3 Heather View||1168||240|
|4 Heather View||800||223|
|5 Heather View||674||213|
|1 Heather View||13 Feb 1974||Conveyance to Professor and Dr Tupholme|
|2 Heather View||21 Jan 1974||Conveyance to Mr Kay|
|16 Jul 2008||Mr Firth becomes registered proprietor.|
|3 Heather View||26 Mar 1975||Conveyance to Mr and Mrs Newby|
|4 Heather View||2 Dec 1975||Conveyance to Mr and Mrs Parker|
|5 Heather View||3 Aug 1975||Conveyance to Mr and Mrs Calloway|
|12 Jun 2000||Mr and Mrs Howard become registered proprietors|
3 For the benefit and protection of the adjoining or neighbouring properties now or formerly of the Vendor so that this covenant shall be binding on the property hereby conveyed into whosesoever hands the same may come the Purchaser for himself and his successors in title hereby covenants with the Vendor that he and his successors in title will at all times hereafter observe and perform the following restrictions and stipulations:-
(i) That he will not carry on or permit to be carried on on the property hereby conveyed any trade or business of any description nor use nor permit the same to be used for any purpose which may cause a nuisance or annoyance to the Vendors or to the Adjoining or neighbouring owners or occupiers…
(iii) That he will not erect on the property hereby conveyed any building of any kind whatsoever either temporary or permanent without first obtaining the written consent of the Vendor's Surveyor…
4 IT IS HEREBY AGREED AND DECLARED as follows:
(ii) that the Vendor or his successors in title owners of the adjoining or neighbouring properties remaining unsold may at any time release or vary any of the said aforesaid provisions and restrictions and the covenant by the Purchaser in respect thereof shall not operate to impose any restriction on the manner in which the Vendor may deal with any of the adjoining or neighbouring properties or to be deemed to create a building scheme…
The proposed development
Death of Mr Taylor and consents.
The views of the Claimants
Professor and Dr Tupholme – No 1
18. I now refer to the photographs contained in the exhibit marked GET5, which were all taken by the second Claimant except that the fourth Claimant took those from within No. 4. In my view it is obvious from the photographs presented that the Claimants' distant and nearby views would be severely marred by any such proposed development. It would be clearly visible over the existing deciduous hedges and through them in the dormant season; and of course there is nothing to prevent the existing hedges from being removed entirely in the future anyway.
19. Moreover, the loss of this portion of the mature garden of No. 2 would be extremely detrimental to the serene ambience and rural street scene of Heather View.
20. The proposed development would block the extensive easterly and south-easterly views to the moors and to distant skyline from No. 1 Heather View. The more distant southerly view of No. 2 through the trees in the gardens of both properties would be replaced by a view of the side elevation of the proposed development.
21. The hedge in the garden of No. 1 next to the boundary with No. 2 is less than 2.5 metres above the level of the garden of No.1. It is a deciduous hedge. It would not form an effective screen. The planned bungalow will be 6.34 metres high. It would be clearly visible from the ground floor of No. 1 and it will severely marr the views from the first floor windows.
22. It will also severely overshadow and block the sunlight entering the southern part of the garden of No. 1 Heather View.
Mrs Newby – No 3
6. Any building such as that proposed would dramatically transform the street scene from its highly attractive rural setting to one of depressing mundane suburbia. It would severely undermine the spacious and open character of this high quality development.
7. An overbearing effect would be created on the street scene and the benefited properties by the presence and proximity of any such development.
8. The proposed development would be clearly visible from my property over the existing deciduous hedge and through it in the dormant season. I refer to the photograph attached and marked exhibit BMN5 showing the view from my front bedroom window. The more distant view of houses on Glen Road through the garden of 2 Heather View would be blocked with a dominating view of the proposed development. To have my longstanding views marred in this way would be most upsetting and would constitute a serious nuisance or annoyance to me.
9. I would experience tremendous nuisance and annoyance by the close proximity to my property of a noisy and disruptive building site, and by the increased amount of traffic on our Heather View cul-de-sac and the extremely dangerous substandard Glen Road during the construction and thereafter.
Mr and Mrs Parker – No 4
15. The views from my property are a great source of pleasure and satisfaction to me. The first thing I do on rising each morning is to look out through our bedroom corridor window at Baildon Moor and enjoy the lovely uninterrupted view – see the attached photograph marked exhibit AP4 - which I then continue to find great pleasure in throughout the day.
16. These views would be severely marred by the proposed development, as would those from our study – see the attached photograph marked exhibit AP5 - and from our garden/terrace and entrance – see the attached photograph marked exhibit AP6.
17. I have known and enjoyed Baildon Moor since a boy (I am now approaching 80) and to have my view of it blocked by a cheap spec-built bungalow, shoehorned into an inadequate site and totally out of keeping with the other expensive Yorkshire Stone and Yorkshire Slate-roofed properties of Heather View does not bear thinking about.
18. Any building, and especially this proposed eyesore, would not only be a nuisance and annoyance to me but it would very seriously reduce the quality of my life, as well as having a detrimental impact upon the value of my property.
19. During the construction period, there would be immense nuisance and annoyance from having a noisy and disruptive building site so close to my home and entrance.
Mr and Mrs Howard – No 5
9. The views to the south-east from the windows of two bedrooms, the lounge, the dining room, and the conservatory of our bungalow, and from our garden and terrace, of the mature gardens of our neighbours and the moors and the distant skyline beyond would be severely marred by this or any such proposed development. I refer to the attached photographs marked exhibits JDH4 to JDH6. Exhibit JDH4 shows the view from our lounge and conservatory. Exhibit JDH5 shows the view from one of the bedrooms. Exhibit JDH6 shows the view from the other bedroom and the entrance.
10. The Heather View cul-de-sac has retained its original highly desirable character and has not materially changed since it was first envisaged.
11. We were very influenced into buying our property by the beautiful overall views and the spacious rural street scene in an extremely attractive setting.
12. So much so that we have had a specially-designed, low-elevated window installed in the bedroom of our very severely disabled son to enable him to enjoy the uninterrupted magnificent views. He is wheelchair bound with cerebral palsy and spends many pleasurable hours peacefully looking through his window, alongside our two dogs.
13. With the insertion of any building such as the proposed, almost all of his superb views would be drastically removed and thereby a lot of pleasure and satisfaction would be removed from his life.
Mr Firth's evidence
8. The Claimants position, in so far as the nuisance covenant is concerned, is that the building of the bungalow will undermine the spacious and open character of the development, that the bungalow will have an overbearing presence and it would interfere with valued open view.
9. The density of the building after erection of the bungalow would not be any greater than exists in relation to numbers 3,4 and 5 Heather View so I can not see how this would affect the 'spacious and open character' of the development.
10. The bungalow will sit down in the site. It will not be overbearing and this is plain obvious from the artists impressions which occupany the planning application which was granted. My view is that the planning officers took all of these matters into consideration and considered whether construction would affect the overal amenity of the local area. If the bungalow was going to be overbearing then I would not have expected consent to have been granted.
11. In so far as view are concerned, firstly, there is no right to a 'view'. It is clear that the bungalow would not and could not interfere with any open view that number 3 may have due to the position of that property. Any impact on numbers 4 and 5 would appear to be very limited due to the sizes of the hedges surrounding those properties and the limited view they have of my garden. In so far as number 1 is concerned, any view from the ground floor can not be interfered with due to the large hedge in situ. As the bungalow sits down on site, this would not interfere with any views from the first floor of number 1.
"… But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds  1 W.L.R. 1381, 1384–1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen  1 W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows.
(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.  AC 749
(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B.  A.C. 191, 201:
"if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense." …"
The annoyance covenant
The scope of the covenant
33. Paragraph 2 contains covenants in a form whose essence has long been familiar to conveyancers and I unhesitatingly accept Mr Hutchings' submission that the ordinary and natural construction of the purchaser's covenant in it 'nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance' etc is sufficiently wide to be capable of extending to activities of all natures, including building an extension to an existing house which, when built, will be such an 'annoyance'. Romer J plainly assumed (although did not apparently have a contrary argument) that covenant (b) in Wood v. Cooper extended to restraining the erection of 'annoying' buildings and he held Mr Cooper to be in breach of it.
". Not to use the Dwellinghouse for any purpose other than that of a private residence or ancillary thereto and not to carry on from the Plot or any part or parts thereof any trade business or manufacture whatsoever nor to do or suffer to be done on the Plot or any part thereof anything of whatsoever nature which may be or become a nuisance or annoyance to the owners or occupiers for the time being of the Estate or the neighbourhood'
"not to do or suffer to be done on the said premises or any part thereof any act, matter, or thing which may be or become an annoyance, nuisance, or disturbance to the neighbourhood or to any tenant of the lessor parties."
"That he will not carry on or permit to be carried on the property herby conveyed any trade or business of any description nor use nor permit the same to be used for any purpose which may cause a nuisance or annoyance to the Vendors or to the Adjoining or neighbouring owners or occupiers…"
Breach of the Covenant.
98. In my view therefore the question is whether applying the guidance afforded by the case of Tod-Heatly v. Benham this extension would be or become a nuisance or annoyance to the Claimants. Would reasonable people, having regard to the ordinary use of the Claimants' houses for pleasurable enjoyment, be annoyed and aggrieved by the extension? To adopt the words of Lord Justice Lindley, would the extension raise an objection in the minds of reasonable men, and be an annoyance within the meaning of the covenant? Lastly, would the extension reasonably trouble the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of the Claimants' houses?
99. As I have noted the test is an objective one and must be judged by robust and common sense standards.
The building disturbance
62. In the present case, the appellants rely principally on a distinct form of covenant: one providing protection against acts causing "nuisance or annoyance". I agree with the appellants that such a covenant is intended to provide protection against temporary as well as long term annoyance, and further that it is not necessarily to be confined by analogy with the common law of nuisance. The cases give little guidance on the scope of such a covenant, other than that, like the law of nuisance, it is to be applied "according to robust and common sense standards" (per Megarry J, Hampstead and Suburban Properties Ltd v Diomedous  1 Ch 248, p 258). However, we have been referred to no authority in which ordinary construction works, carried out with reasonable care, have been held to involve a breach of such a covenant. Tod-Heatly was not such a case. (I note also that there appears to have been no finding to that effect by the Exeter County Court.) I do not think that such a covenant is to be equated with a covenant providing specific protection from construction disturbance.
The building covenant.
1. Mr Lakin asserts that Mr Paxford was validly appointed as the vendor's surveyor by Mrs Taylor as the Vendor's successor in title. As such Mr Paxford validly consented to the building work and there is accordingly no breach of covenant. Mr Wilson contends that the right to appoint the surveyor was personal to Mr Taylor. It did not pass to his executors. Thus, the appointment of Mr Paxford was invalid and his consent is of no legal effect.
2. Mr Lakin contends that on its true construction the covenant lapsed on the death of Mr Taylor and thus there is no breach of covenant. Mr Wilson contends that on the death of Mr Taylor the covenant became absolute with the result that there was no power (outside an application under s 84(2) of the 1925 Act) to construct any building on the site.
3. Mr Lakin contends that it was open to Mrs Taylor, as the successor in title to Mr Taylor to vary or modify the covenant under clause 4(ii). The letter of consent signed by Mrs Taylor had the effect of modifying the covenant so as to permit the construction of the dwelling in accordance with the approved plans. Mr Wilson contends that on its true construction Mrs Taylor had no such power. She was not within the definition of "owners of the adjoining or neighbouring properties remaining unsold" in clause 4(ii). Accordingly, her consent is of no legal effect.
4. In the alternative Mr Lakin contends that the Claimants have power to modify or to vary the covenants under clause 4(ii). Such consent cannot be unreasonably withheld. The refusal to agree to a modification is unreasonable. Mr Wilson contends that the Claimants are not within the definition of successors in title in clause 4(ii) for the same reason as Mrs Taylor. In any event the decision not to consent was not unreasonable.
The appointment of Mr Paxford
8. It is obviously a strong thing to say that where a draftsman has actually defined a term for the purposes of his document that in some places (but not others) where he uses his chosen term he must have intended some other meaning. It is not impossible, however. If, approaching the document through the eyes of the intended sort of reader (here a conveyancer), the court concludes that notwithstanding his chosen definition the draftsman just must have meant something else by the use of the term, it will so construe the document. Such a conclusion will only be reached where, if the term is given its defined meaning the result would be absurd, given the factual background, known to both parties, in which the document was prepared. Nothing less than absurdity will do – it is not enough that one conclusion makes better commercial sense than another.
Did clause 3(iii) lapse or become absolute on the death of Mr Taylor?
No dwelling house or other building shall be erected on the land hereby conveyed unless the plans drawings and elevation thereof shall have been previously submitted to and approved of in writing by the Company but such approval shall not be unreasonably or vexatiously withheld;
39. It appears to me very unlikely that the parties to each of the original conveyances of the claimant's land could have envisaged that, if and when the Company ceased to exist, the second covenant could become absolute in its effect. The second covenant is not actually concerned with the number or type of buildings which can be erected or the use to which it (or they) can be put: that appears to me to be primarily governed by the first covenant (and indeed by paragraph (1)). The second covenant is simply concerned with giving the Company a degree of control over the plans drawings and elevation (hereinafter "plans") of any building which is proposed to be erected on a plot. Thus, if there was a desire to rebuild a dwelling house which had burned down, or to erect an ancillary building to an existing dwelling house, the question whether the covenantor was entitled to put up the number or type of buildings he wished to erect would be governed by paragraph (1), the first covenant in paragraph (2), and, to an extent, paragraph (3). The second covenant would only be concerned with the approval of the plans of any such new building.
47. Thus, as I see it, (a) the second covenant was purely concerned with the approval of plans for buildings whose number and use was limited by the first covenant, and whose location is limited by paragraph (3), (b) the approval of the Company to any plans could not be unreasonably withheld, and (c) the terms of the second covenant were legally unenforceable against the Company by those owning land to which it was annexed. Accordingly, I consider that the claimant's contention is, at least on the arguments so far considered, much more sensible and realistic, indeed far more likely to have accorded with the intention of the parties to the original conveyances of the claimant's land, than that of the defendant.
54. In all the circumstances, it appears to me that, if the Company ceases to exist, the second covenant is discharged. I am doubtful whether this involves implying a term as much as interpreting the second covenant in its context. However, if it does involve the implication of a term, I am satisfied that the five tests identified by Lord Simon are satisfied in respect of the implied term contended for by the claimant. In essence, the reasons for my conclusion have already been expressed, but it is right that I should expand on them a little. The overriding point is that, when read in the context of the rest of the five covenants, and in particular the first covenant with which it is so clearly linked in paragraph (2) itself, it seems to me that, if the exception to the prohibition in the second covenant is discharged because the Company has been dissolved, then the prohibition is discharged as well. The prohibition and the exception are so intimately bound together that if one goes, so does the other.
55. More particularly, when the second covenant is read in the context of the other covenants, the second covenant was intended to give the Company a right of veto (which right could only be exercised on reasonable grounds) in relation to the plans for any building to be erected on the plot. Given that any such building must, in any event, comply with the first covenant in paragraph (2), and indeed with the four other covenants, I do not consider that the parties could have intended that the second covenant could become absolute. After all, the other covenants specifically govern the number, use and type of buildings which can be erected, whereas the second covenant is merely concerned with approval of plans.
(a) "Not to erect or build anything save one bungalow (of which the ridge height shall not exceed 20 feet) … and not to use any such bungalow for any other purpose than as a private dwellinghouse or the professional residence of a medical practitioner or dentist. The said bungalow and buildings shall be erected only in accordance with plans and elevations to be first submitted to and approved by the Vendor in writing … and on such site as she shall first approve.
(c) Not to make any addition or enlargement or alteration to the said bungalow [i.e. the Bungalow] outbuildings and motor garage without plans having been first approved by the Vendor and her consent thereto signified in writing such consent not to be unreasonably withheld".
48. However, if unconstrained by previous authority, I would unhesitatingly hold that this is not the correct construction of these provisions. Otherwise, Mr. and Mrs. Strong's death would put subsequent owners in the same position as they would have been in if the covenants had been with their successors. Indeed as regards paragraph 4 they would be in a better position, since consent could be refused for a bad reason or for none at all.
49. In my opinion, a straightforward application of Lord Diplock's dictum in Antaios leads to the conclusion that paragraphs 4 and 5 do not operate as absolute bars once Mr. and Mrs. Strong have died, but on the contrary that these paragraphs become ineffective. Otherwise, for example, if they had died in an accident before construction had commenced, the position would be that Professor and Mrs. Taylor had bought a building plot, on which they now could not build. Equally, even in circumstances in which both died long after the Conveyance after a full life, as they did, from that moment on there would be an absolute bar against any structural alteration of any kind whether for reasons of convenience or safety. They or any subsequent owner would be barred, if the defendants' argument were correct, not only from demolishing the building but also from adding a porch or a conservatory or a new chimney. Once Mr. and Mrs. Strong had died, the owner of 1A could be held to ransom by the owner of Wych Elms, subject only to the possibility of making a section 84 application. This would be absurd, and the terms of the Conveyance cannot sensibly be construed to mean this.
50. I would therefore hold, if free to do so, that the parties plainly did not intend what they have said, and that their loose language must, applying Lord Diplock's dictum, yield to commonsense. The reasonable outside person, equipped with the relevant background knowledge, as such part of it as is available to the court, would read this covenant as one which applied only in the lifetime of the vendors.