England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/03/2009

HH JUDGE TOULMIN CMG, QC :

1. This Action concerns a claim by Country Estates Construction Ltd (Country Estates) against Oxfordshire County Council (OCC) for an injunction to prevent OCC from carrying out its proposal to construct a cycle path and pedestrian access from the Claimant's industrial estate known as Cromwell Park to a proposed new development to the south of Country Estates' land in breach (so the Claimant says) of a covenant to maintain the landscaping scheme imposed by the local Planning Authority in its entirety.
2. By Clause 4 of the Transfer dated 22 August 1988 under which OCC sold the land, OCC covenanted with Country Estates and its successors in title that OCC "will provide and maintain landscaping on the Council's Retained Land in accordance with the Planning Permission Numbered O321/87 issued by West Oxfordshire County (sic) Council on 22 May 1987".
3. The Planning Permission provided that, apart from the means of access into the Claimant's development, a strip of land with a minimum width of 10m was to be reserved for landscaping along all the boundaries of the Application area (the landscaping strip).
4. OCC's original plan to create an access road through the landscaping strip has been abandoned but the proposal to create a cycle path and pedestrian link through the landscaping strip has been maintained.
5. On 3 July 2008 Master Bragge ordered the following to be tried as a preliminary issue namely:

"Whether on the true construction of the terms of the Transfer dated 22 August 1988 ("The Transfer") made between the Claimant and the Defendant, the creation of a cycle path and pedestrian link between the Defendant's retained land ("the Retained Land") at Rockhill Farm, London Road, Chipping Norton, to the highway situated within the Claimant's land known as Cromwell Park registered at HM Land Registry title Nº. ON119815 or the removal or destruction of any part of the landscaping strip on the Defendant's Retained Land constitutes a breach of the terms of Clause 4 of the Transfer."

6. I am assured by OCC that if I find against them on the preliminary issue, they will give an undertaking not to proceed with the plan to create the cycle path and pedestrian link. Clearly, if I find in OCC's favour, the cycle path and pedestrian link will be able to proceed. Either way the outcome of the preliminary issue will determine the outcome of the Action.
7. I heard oral evidence from Mr Smith, Managing Director of Country Estates from 1987; Mr Kirkby, Contracts Manager of Country Estates from 1986 and subsequently Director of Construction; Mr Weitzel, chartered engineer of Warner Nugent from 1986-1992, Country Estates' consulting engineer; and Mr Day, an independent architect, on behalf of the Claimant. Mrs Sheppard gave evidence on behalf of the Defendant. She was employed by OCC from February 1987 to November 1992. In November 1992 she took up her employment with Atkins Ltd and has been employed by them since then. In the circumstances I have found their evidence to be of relatively little assistance since the answer to the preliminary issue is derived primarily from the documents.
8. The Law

This is a dispute between the parties which requires me to construe a clause in a document. The correct approach to construction of documents was set out by Lord Hoffmann in ICS Ltd v West Bromwich BS [1998] 1 WLR 896 at 912.

9. The principles were be summarised by Lord Hoffmann 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 been available to the parties in the situation in which they were at the time of the contract.

(2) The background most 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 the exception are in some respects unclear…

(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…

(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…."

10. I have been referred to various legal authorities to support the competing contentions of the parties but these are of limited assistance since I must construe Clause 4 of the Transfer, and the Planning Permission to which it refers according to the words used and in their relevant contexts.

The Facts

11. On 27 February 1987 OCC made a planning application to the Planning Authority (West Oxfordshire District Council (WODC)) for outline planning permission before selling off the parcel of land adjoining the A361 Banbury Road near Chipping Norton in Oxfordshire. The Application was granted on 22 May 1987. (It is referred to subsequently both as 0321/87 and 321/87).
12. The area to the south of the parcel was occupied by a tenant farmer. The area to the west of the parcel was the site of a large council depot. A little further to the west, occupying a triangle of land from the junction of the Banbury Road Crossing and the London Road to the south of the tenant's farm, was Cotshill Hospital.
13. The stated purpose of the Application was to provide for a new access to the A361, a footway to Cotshill Hospital on the SE verge and adequate landscaping and screening of the new development. Condition 3 was concerned with ensuring pedestrian access to the site and the existing footpath adjoining Cotshill Hospital. This relates to a different access to the one currently proposed and this condition is not relevant to this case.
14. Condition 5 is particularly relevant. It says "apart from the means of access into the site a strip of land with a minimum width of 10m be reserved solely for landscaping along all boundaries of the application area."
15. The purpose of the condition is stated to be:

"5. To ensure that the development is complimented by adequate landscaping"

16. The Defendants contend that if its proposed cycle path and pedestrian link proceed, the development would still be complimented by adequate landscaping.
17. The concern to protect the environment is reinforced by Conditions 6, 7, 8 and 9. Condition 6 and 7 relate to trees and hedgerows. Conditions 8 and 9 relate to fencing.
18. Condition 8 provides:

"8. A new post and rail fence be constructed to a height of 1.5m in accordance with a design and specification first submitted to and approved by the Local Planning Authority and along the whole of the lines coloured blue in the attached plan Ref W.321/87A and that such fence shall be erected immediately upon commencement of the development of the site and be thereafter retained."

19. The purpose of Condition 8 is described as "to define the boundary of the planning unit and to protect agricultural land". This can only refer to the land to the south of the development.
20. Plan Ref W.321/87A has not been found. The parties have reached the following agreement: "It is agreed between the parties that the plan ….(W0321/87) is a plan representing the planning application area for the purposes of the planning application. It is also agreed that the planning consent in so far as it relates to the planning application area, relates to [W0321/87]. Neither party has seen a copy of a plan marked 0321/87A. There is no plan in the bundle with a suffix "A"".
21. There is a dispute between the parties as to the meaning of "retained" in Condition 8 to which I shall return.
22. Condition 9 is as follows:

"That to provide for the means of access the internal boundaries on the landscape strips be protected by the erection of fences of a design and specification first submitted to and approved by the Local Planning Authority and that such fences shall be erected immediately following the completion of the landscaping scheme."

The requirement is that there should be fencing on both sides of the landscape strip. The purpose of this condition is stated to be "to protect the established landscaping." The fencing, of course, also reinforces the boundary.

23. On 17 June 1987 WODC granted a slightly amended Planning Permission for landscape screening of the proposed new access to the A361 and the footway on the south eastern verge at land forming part of Rockhill Farm adjacent to the A361. It followed the lines of and was consistent with the earlier permission and retained reference to the Plan No. 0321/87.
24. Condition 3 provided that the means of access to and from the land be taken only to and from the A361 and be formed, laid out and constructed in accordance with the approved plans prior to the occupation of any building erected within the application area.
25. Condition 6 again provided that "Apart from the means of access into the site, a strip of land with a minimum width of 10m be reserved solely for landscaping along all boundaries of the application area". Condition 7 provided that no development should take place until the scheme of landscaping had been completed. Condition 9 was retained in the same terms as the previous Condition 8.
26. The Planning Permission set out again the reasons why the various conditions were imposed. Condition 3 was imposed so as "to ensure a safe and adequate access". Condition 6 and 7 were imposed "to ensure that the development is complimented by adequate landscaping". Condition 9 was imposed "to define the boundary of the planning unit and to protect agricultural land".
27. On 22 January 1988 OCC wrote to the Planning Authority setting out its proposals for fencing and landscaping the strip of land in order to satisfy Condition 7 of the Planning Permission. This was followed up in the response from WODC dated 11 March 1988.
28. I note that the letter of 22 January 1988 refers to Application 0321/87 in relation to the south, south-eastern and eastern boundaries. It is not clear that the Claimant saw either of these letters before the date of completion. If not, I cannot take them into account in deriving the common intention of the parties. The Claimant may well not have seen them and I do not take them into account, although they are entirely consistent with the rest of the history.
29. In May 1988 the Chief Planning Officer of WODC produced the Planning Brief. The introduction referred separately to the developable area and "an additional 1.25 acres (0.51ha) of land for peripheral screening of Banbury Road, Chipping Norton.
30. The Planning Brief, consistent with the Planning Permission, referred to access and on-site roads. Paragraph 3 noted that access was to be constructed from the Banbury Road (A361). Plan 321/87 showed the precise position of the access and that it would involve the loss of a number of mature trees along the Banbury Road boundary.
31. Paragraphs 4 and 5 of the Planning Brief emphasised that the site was not for a development of poor environmental quality. On the contrary, it was "particularly suitable for those firms which by the nature of their function require a setting of high environmental standard."
32. These objectives were borne out in paragraph 6 of the Planning Brief. Paragraph 6.1 provided that "landscaping should form an integral part of the detailed site proposals, providing a setting for the development, with the particular aims of protecting the surrounding area from development and creating a pleasant informal edge to Banbury Road".
33. Paragraph 6.3 dealt with Peripheral Planting. It provided as follows:

"Apart from the means of access into the site [from the Banbury Road] a strip of land with a minimum planting width of 10 metres shall be reserved for landscaping along all boundaries of the site to create a pleasant informal edge to the development.

6.4 Within the peripheral planting area five rows of trees should be planted with two metre spacing between trees in the rows…

6.6 The importance of the landscaping provision cannot be over emphasised. It is essential that the planting becomes established at an early stage of the development of this sensitive site so that it can quickly form a setting and screen to the development itself…"

34. The planning brief went on to say that the Council would resist granting further planning permission within the site if these landscaping conditions were breached, in order to ensure that the existing extremely attractive approach to Chipping Norton is not damaged by new development with inadequate landscaping.
35. I should note that, as Mrs Sheppard explains in her first statement, the land between the new access to the site and the Highway Depot was excluded from the sale. OCC did not wish to create a landscaping strip along the new access until the precise form of development of the Depot had been decided. She said that a 10 metre landscaping strip would have cut the retained land on the western side into two parts. There is no suggestion that any of the other planning conditions were affected.
36. Whereas Country Estates may not have been told of the precise state of OCC's thinking in relation to the Highway Depot, they knew as a fact that landscaping had been excluded in this area.
37. The Particulars of Sale were settled by OCC for a sale by formal tender. The closing date was 14 July 1988. The Particulars were prepared by Mrs Sheppard who was at that time employed by the department of Planning and Property Services of OCC. They took full account of the Planning Permission.
38. Under the heading "Planning" the Particulars said:

"Outline planning permission has been granted for light industrial, office and warehousing use. A copy of the Permission is included in the Particulars. Development is to be carried out in accordance with the approved Planning Brief prepared by West Oxfordshire District Council, copies of which can be obtained from the District Council's Officer on request."

39. The Particulars contained the following addendum:

"Please note

Landscaping Strips – The County Council has provided and will retain the planting along the south, south-eastern and eastern boundaries. The Council will also be responsible for any planting required on the western side of the new access road. The eventual purchaser will, therefore, only be obliged to provide 10 metre landscaping strips along the frontage and north-eastern boundaries."

40. I was told that the purpose of the note was to reassure prospective purchasers that the County Council would be responsible for providing and maintaining the planting to a high environmental standard along the south, south-eastern and eastern boundaries of the development.
41. The Particulars of Sale contained Condition 14, namely that "the property is sold with the benefit of a covenant of the Vendor to provide and maintain landscaping on the retained land in accordance with the Planning Permission Number 0321/87 dated 22 May 1987 (herein after called "the Planning Consent")".
42. There are other potentially relevant conditions in the Particulars of Sale. Condition 11 reserved specific rights in relation to the retained land for the benefit of OCC, namely to enter onto the property to lay pipes in such positions as shall have been approved by the purchaser.
43. Condition 11 also provided "(b) Full right and liberty for the Vendor and/or its successors in title … to enter onto the Property with or without plant and machinery to construct and thereafter to maintain a roadway and footway from the bellmouth to be constructed by the Purchaser under the Condition 15(i)(b) hereof to the retained land".
44. Under Condition 15 the purchaser covenanted that within 6 months it would construct:

"i)a) The highway improvements and the means of access specified in the Planning Consent and

b) An access road (to at least base course) along the route and to the line A-B shown on the attached drawing CN2 including a bellmouth to the line C-D marked thereon or along such other routes as may be agreed with the vendor,

ii) Comply fully with the landscaping requirements contained in the Planning Consent (insofar as they relate to the property) during the first available planting season"

45. The drawing CN2 shows the proposed access road with the bellmouth stopping short of the end of the parcel of land. The sketch appears to show a pathway of one metre going through the retained land into the council depot. No one has suggested any great significance relating to this.
46. The Standard Enquiries for contract enclosed a copy of the Planning Consent.
47. On 13 July 1988 Mr Smith signed the Claimant's Form of Tender which was accepted on 25 July 1988.
48. Mr Brunsden of Country Estates wrote to OCC on 5 August 1988 to say that Country Estates would be interested in acquiring the landscaping strip. By a letter dated 15 August 1988 Mrs Sheppard replied that "The County Council has quite deliberately retained ownership of this area and is willing to accept any responsibility that may result in order to protect the adjoining small holding."
49. This response also provided an answer to the letter written on 12 August 1988 by solicitors from Country Estates to the OCC solicitor. It confirmed a telephone call on 8 August 1988 relating to the landscaping strip. Country Estates expressed concern that the Council's enthusiasm for maintaining the landscaping strip might wear thin and the letter requested the Council to reconsider its policy.
50. After the date of transfer, Mrs Sheppard replied to Mr Brunsden to say that she had written to the agent of the small holding to the South for comments on the suggestion that Country Estates should take over the responsibility for the screening. This last letter is referred to solely to complete the history. It does not form part of the matters which are directly related to the Transfer.
51. The Transfer is dated 22 August 1988. The definition section defines at Paragraph 1(b) that "The Council's Retained Land" means the land adjoining the Property and shown hatched on Plan C. The Plan includes all the land south of the development (including the area of the proposed siting of the cycle path and pedestrian link).
52. Clause 3b of the Transfer grants the Council the right to enter onto the Claimant's property and thereafter maintain a roadway and footway to the Council's Retained Land from the bellmouth to be constructed by the purchaser in accordance with the covenant on the part of the purchaser contained in Clause 5 a)ii) thereof.
53. Clause 5a)ii) relates to Country Estates' obligations. It provides that Country Estates would:

"a) within 6 months complete the following works to be constructed to the County Surveyor and Engineer's standard and to his reasonable satisfaction and to be suitable to his adoption on completion….

ii) [construct] an access road (to at least base course) along the road to the line A-B shown on Plan B including a bellmouth to the line C-D marked thereon or along such other routes as may be agreed with the Council."

54. I have left to the end Clause 4 of the Transfer relating to the Council's obligations which has to be construed in context.

"The Council hereby covenants with the purchaser and its successors in title in respect of the Property and each and every part thereof that the Council will provide and maintain landscaping on the Council's Retained Land in accordance with the Planning Permission Numbered 0321/87 issued by West Oxfordshire County Council on 22 May 1987 (herein after called the Planning Consent)."

55. On 28 April 1989 planning permission was given by the WODC for the erection of 33 industrial/office units on the site. By then continuous fencing had been provided in the landscaping strip. The maps attached to the tender documents dated 9 January 1989 show chain-link or rabbit preventing fencing to the north and post and rail fences with a formed hedge in part of it to the south of the landscaping area. In the 10 metres in between there is a scheme of planting eight different varieties of trees. The 10 metre strip extends on the sketch plan to the junction of the Country Estates' land and the Council depot.
56. On 19 January 1989 Country Estates wrote to Mrs Sheppard to request certain amendments to the Planning Brief and Conditions of Sale. They included removing the chain-link fence prior to occupation to enable the landscaping to form an integral part of the whole scheme.
57. On 3 February 1989 Mrs Sheppard responded by saying that she was not prepared to permit removal of the chain-link fence. "A fence must be provided to ensure that the planting is allowed to develop in proper fashion to form a secure boundary from both the Country Council's land and the development site…"
58. I note that in the contemporaneous documents OCC is not seeking to reserve its position in relation to land to the south of the development. Rather it is seeking to emphasise the importance of the 10m strip to form a secure boundary between the development and the small holding to the south.
59. The access was constructed. In 1994 OCC applied for planning permission to continue the road which had been constructed in the development onto its land to provide access to the highway depot by connecting it with the bellmouth. At the same time it was proposed to close off the access to the highway depot from the Banbury Road and to sell off the part of the depot to the north for development. No change was proposed to the southern boundary of the development.
60. The plan dated 5 October 1995 shows that the Council proposed a change to the bellmouth to a roundabout. It notes that the access road is to be "access to depot only."
61. Over the intervening years OCC has developed a plan for a new care home and health centre facility on a small holding.
62. Mrs Sheppard, now employed at Atkins, wrote to Mr Kirkbride at Country Estates on 13 December 2005 to inform him of what was happening. She said that "the remainder of the development i.e. deliveries to/from the care home and all traffic to/from the Health Care Facility, Surgery and future development would take access from Cromwell Park (i.e. Country Estates Development)". She also said that there would be a road and full pedestrian and cycle access from both London Road and Banbury Road.
63. This proposal was in due course modified.
64. In its further letter dated 15 October 2007 OCC wrote to Clifton Ingram LLP (the Claimant's solicitors) noting that "the Council is considering its position to the cycleway and whether it is necessary." OCC said in the letter that it had instructions to withdraw the application for permission for vehicular access to the proposed new development from Banbury Road.
65. Atkins produced a Tree Survey and Arboricultural Assessment based on an inspection carried out on 18 October 2007. One of the contentions of OCC is that the breach in the original screen is minimal and that the breach would constitute the only and a trivial detriment. Mrs Sheppard estimated at paragraph 16 of her second statement that less than 50 square metres of planting would be removed from the landscaping strip out of a total of 2500 square metres. The balance would be retained as part of the landscaping strip.
66. The Tree Survey Report noted at paragraph 4.3 that the proposal risked also causing significant damage to the trees:

"The proposed pedestrian footpath/cycleway through the shelter belt may affect numerous young trees depending on the width of the footway required. These trees will tolerate a certain level of root disturbance… a trial trench should be dug either side of the proposed footway and any tree roots encountered cut by hand. Then the centre can be dug out by mechanical means. I suggest a one metre clearance each side of the path to the first tree."

67. Mrs Sheppard also gave evidence of a traffic survey which she had conducted in the centre of Chipping Norton in 2006. She said that the Primary Care Centre would be transferred from the centre of Chipping Norton to the new development. This, she said, gave a good indication of the amount of traffic that would be transferred to the new development.
68. With regard to the Survey, I say no more than that the figures related to the Primary Care Centre only, were given by the clinicians at the Centre, and were, at best, the best estimate of the clinicians. The plan shows parking needs and is intended to demonstrate that the fear of Country Estates that patients and visitors may park on the Cromwell Park estate and walk through to the Primary Care Centre is unfounded. Without any of the supporting documents or an understanding of how the estimates were made, and by whom, I am not much assisted one way or the other. At its lowest, I conclude that the use of the pedestrian link and cycle path would have significant purpose and effect otherwise this litigation would not be being pursued in the face of Country Estates' objections.
69. On 4 February 2008 WODC resolved to grant planning permission for the pedestrian link and cycle path to the south of the Claimant's land subject to certain conditions relating to off-site highway works, the construction of a footway along London Road, the replacement of trees along London Road and provision of strategic landscaping. Mrs Sheppard said in oral evidence that the Application had been made because the Highway Authority would like to see a link between Banbury Road and London Road for cyclists and pedestrians. I note that this link is not expressed to be solely in relation to the proposed new development.

The Claimant's Submissions

70. The Claimant has two main submissions:-

a) "Maintain" means what it says, i.e. maintain in existence in its entirety for all time;

b) OCC's proposed actions are not de minimis.

71. In relation to the meaning of "maintain", Country Estates rely on the definition of "maintain" of Shaw LJ in Haydon v Kent CC [1978] 2 All ER 97 at 108. Shaw LJ said "applying the primary canons of instruction to an ordinary phrase, the ordinary meaning of "to maintain" is to keep something in existence which enables it to serve the purpose for which it exists." Country Estates contend that although the decision in that case was overruled by the House of Lords, the definition was not questioned.
72. In support of its first submission Country Estates relies on the following circumstances:

(a) The conditions to the planning permission 0321/87 and, in particular, Conditions 6-10 require the provision of the 10m landscaping strip and the provision of fences on each side of the landscaping strips. These were intended to be permanent and not temporary.

(b) The post and rail fence was to be retained. A further rabbit proof fence was to be erected so that there were fences on both sides of the landscaping strip.

(c) The landscaping was regarded as sufficiently important to merit separate and specific inclusion in the Planning Application as 1.25acres of landscaping.

(d) The Planning Brief dated May 1988 leaves no doubt about the importance of the landscaping strip.

(e) The Particulars of Sale carry the specific note that OCC will retain the landscaping strips to the south and eastern boundaries.

(f) The covenant took account of the possibility of the redevelopment of the depot. That was the reason for not including the land at the western edge of the planning site and for not landscaping the western boundary.

(g) London Road was the obvious and preferred means of access to the south if development in the future was contemplated.

(h) At the time, Mr Weitzel was told that he could design the access road on site without reference to the differing levels.

(i) The fact that even when the Depot was developed in 1995, the relevant plan shows the spur road as only giving access to the Depot.

73. In relation to the claim that the breach would be "de minimis", it is argued that this breach is not de minimis. The fact that it amounts to less than 2 percent of the landscaping is irrelevant. The purpose of the landscaping was to provide a complete barrier between the Claimant's and the Defendant's land for the benefit of both parties.
74. It is contended further that Mrs Sheppard's evidence that the effects of the breach would be de minimis was weak.
75. The Claimants contend that it was weak for the following reasons:

(a) She could not produce the data used to support the car parking figures put to the Local Authority in relation to the London Road Application.

(b) She accepted that the figures used for the Boundary Road Application had come from a survey of potential users.

(c) She could never guarantee that there would be enough car parking spaces available.

(d) Plans for the GP's surgery were almost completely hypothetical.

(e) She could not say how the traffic figures for the Day Care Centre worked.

(f) Although she made it clear that it was, in her view, unlikely, she could not give an assurance that charges would not be made for car parking.

76. Mrs Sheppard also conceded that the cycle route was not necessary but was merely something that the Highway Authority would prefer to have.

The Defendant's submissions

77. OCC contend that I must keep very much in mind that the relevant factual background is that known to both parties. The fact that OCC may have been thinking about developing the Depot was not known to the Claimant at the date of completion. I must also avoid considering the parties' subjective intentions.
78. In considering the surrounding circumstances, I must take into account that the Planning Permission was for "all boundaries of the application area"; in fact the Defendant sold less than "the application area" to the Claimant.
79. I must also take into account the following:

(1) The obligation under the Planning Brief was cast on the Claimant and not on the Defendant.

(2) The Claimant was required to build the spur of the road. There was no restriction on what the spur was to connect with.

(3) The Transfer makes it clear that the Defendant can connect the spur for obtaining access to the Retained Land.

(4) It is important to note that the definition of "Retained Land" does not mean only that part of the Retained Land or of the landscaping strip.

(5) The covenant contended for by the Claimant would effectively seal off access to the south. This would mean that the Council had effectively sealed off its own access in that direction.

(6) In view of the lie of the land, anyone looking at the area would contemplate the spur providing access to the south.

(7) Clause 4 of the Transfer must be considered in the context of Conditions 5 and 7. The reason for the condition is to ensure that the development is completed by adequate landscaping. Under the OCC proposals there would still be adequate landscaping.

(8) Landscaping does not prevent a path or paths being created through the landscaping.

(9) The word "maintain", properly construed in context, means not "retain in the same condition" but simply "generally to maintain landscaping as a feature" this would still be achieved after OCC had removed at most 50 square metres of landscaping including 13 trees. It would leave "adequate landscaping to the development". The purpose of the strip "to ensure that the development is complimented by adequate landscaping" would still be fulfilled.

Conclusion

80. The construction of Clause 4 of the Transfer and the Planning Permission is to be derived first from the actual words used in Clause 4, and the Planning Permission to which it refers, construed in the context of the documents as a whole. Secondly, it is to be derived from the background circumstances understood by both parties at the date of the Transfer.
81. Under Clause 4 of the Transfer, OCC covenants with "the Purchaser and its successors in title… that the Council will provide landscaping on the Council's Retained Land in accordance with the Planning Permission numbered 0321/87 issued by West Oxfordshire County Council on 22 May 1987 (hereinafter called "the Planning Consent"). The words "in accordance with" govern the basis on which the landscaping will be provided.
82. The other clauses of the Transfer provide the context of the obligation.
83. The Transfer sets out in Clause 2 the covenants and conditions reserved for the benefit of the Council's Retained Land. Clause 3 gives the Council the right to enter on to Country Estates' Property to construct and maintain a roadway and footing to the Council's Retained Land from the bellmouth to be constructed by the purchaser in accordance with the covenant by the purchaser contained in Clause 5 (a)(ii).
84. By Clause 5 (a)(ii) the Purchaser covenants with OCC that it will construct a roadway suitable for adoption:

"ii) An access road (to at least base course) along the route and the line A-B shown on Plan B including a bellmouth to the line C-D marked thereon or along such other routes as maybe agreed by the council."

85. By Clause 4 the Council covenants "in respect of the Property and each and every part thereof that it will provide and maintain landscaping on the Council's Retained Land in accordance with the Planning Permission issued on 22 May 1987".
86. I comment that the Transfer makes no reservations for a right of way or access to the property from the south even on the basis that this would be subject to a future planning consent. On the contrary, by Clause 4, OCC covenants that it will provide and maintain landscaping in respect of each and every part of the property in accordance with the Planning Permission dated 22 May 1997.
87. I turn to the Planning Permission. Condition 5 of the Planning Permission must be read in the context that it applies to each and every part of the property. It says clearly that the strip of land shall be reserved solely (my underlining) for landscaping :

"Apart from the means of access into the site, a strip of land with a minimum width of 10m shall be reserved solely for landscaping along all boundaries of the application area."

88. The purpose of the condition is stated as being "to ensure that the development is complimented by adequate landscaping".
89. This provision must be construed in the context of the document as a whole to see if any possible ambiguity can be resolved. The general purposes of the Permission are expressed to be to ensure landscaped screening of the proposed development, a new access to the Banbury Road and a footway to the existing Cotshill Hospital. The relevance of the stated general purpose is that it refers (a) to the landscaping screening of the new development and (b) to access to Banbury Road. It makes no reference to any other purpose.
90. Condition 8 takes the matter further. The purpose of the fencing which is to be erected "immediately upon commencement of development of the site and be thereafter retained" is explicitly "8. To define the boundary of the planning unit and to protect agricultural land".
91. Clause 4 of the Transfer must be read, therefore, in the context of a Planning Permission whose stated purpose is not only to provide adequate landscaping but also to define the boundary of the development and to protect the agricultural land to the south. This requires adequate landscaping along the whole of the relevant boundary of the Claimant's land to be provided by OCC. The relevant boundary is that of the land to be conveyed and is subject to a reservation in relation to the land to the west abutting the Depot. This includes the land to the south which is the subject of the current Planning Application.
92. This interpretation reinforces the construction of the words of Condition 5 that the strip of land is to be reserved solely (my emphasis) for landscaping. The provision of a cycle track and pathway through the 10m strip to provide a means of access from the Claimant's land to the London Road to the south would in my judgment be plainly a contravention of the condition.
93. It would be a material change in that it would alter the environment and purpose of the landscaping which is to provide landscaping to a high environmental standard around the perimeter of the Industrial Estate and to protect the agricultural land to the south by providing, with trees and hedgerows and fencing, a continuous barrier between the Industrial Estate and the smallholding to the south.
94. The Planning Permission uses the words "retained" and "replaced". They must be construed in the context of the document as a whole. These words refer to "retained" in the context of the landscaping for the landscaping strips (Condition 6), the erection and retention of a new post and rail fence (Condition 7) and the retention of the stone wall (Condition 10). With regard to growing trees or plants, Condition 7 requires those that die, are removed or become seriously damaged, to be replaced in the next planting season.
95. Clause 4 of the Transfer requires the Council to provide and maintain landscaping. Put in the context of the Planning Permission, this requires OCC to replace in the next planting season those trees and plants which have died, have been removed or have been seriously damaged. This is a continuing obligation.
96. On the wording of the two documents I reject, therefore, OCC's contention that on a proper construction of the Planning Permission, adequate landscaping can be provided if a cycle track and pathway are constructed which provide access to the south of the development.
97. I also reject OCC's construction of "maintain" as meaning "generally maintaining landscaping as a feature".
98. Further, although relatively few trees would be removed by the cycle track and pedestrian link, the effect would not be "de minimis". It would breach the planning consent that provided, solely, access to the Banbury Road to the north and whose purpose was to safeguard the environment by providing a landscaped screen around the perimeter of the development (except the Highway Depot) and to safeguard the agricultural land to the south.
99. I now consider whether or not any of my conclusions are altered by the "factual matrix" i.e. the surrounding circumstances known to both parties at the date of the transfer.
100. The revised permission in June 1987 is consistent with the earlier outline planning permission.
101. Equally the Planning Brief of May 1988, a copy of which was sent to Country Estates, refers to a loss of mature trees along the Banbury Road. It emphasises the quality of the development required on site "suitable for those firms which by the nature of their function require a setting of high environmental standard." The Planning Brief also stresses the importance of landscaping and peripheral planting.
102. Likewise, the Particulars of Sale refer to the Planning Permission which is to be carried out in accordance with the Planning Brief. The note to reassure prospective purchasers reinforces the position in relation to the landscaping strips which are OCC's responsibility. "The County Council has provided and will retain the planting along the south, south-eastern and eastern boundaries". It cannot be said that this assurance would be the same if the words "except that in the future the County Council may decide to construct a cycle path and pedestrian link to the London Road to the south," were added.
103. The Conditions of Sale set out the means of access which are to be provided to the property. There is no suggestion of a means of access to the south or any reservation of a right of way through the landscape strip to provide access to the industrial development from the south.
104. On 12 August 1988 solicitors for Country Estates had written to express concern that the Council's enthusiasm for maintaining the landscaping might wane and offering to take over responsibility of maintaining the landscaping strips. The letter does not express concern on any basis other than that the quality of the screening of the estate along the south, south-eastern and eastern boundaries might not be maintained.
105. In short there is nothing in the surrounding circumstances (or factual matrix) to alter the construction which I have placed on the terms of the Transfer dated 22 August 1988 or the Planning Permission Numbered 0321/87 of 22 May 1987.
106. I answer the Preliminary Issue as follows:

On a true construction of the terms of Transfer dated 22 August 1988 made between the Claimant and Defendant, the creation of a cycle path and pedestrian link between the Retained Land at Rockhill Farm, London Road, Chipping Norton to the highway situated within the Claimant's land known as Cromwell Park HM Land Registry Title Nº ON119815 would constitute a breach of Clause 4 of the Transfer.

107. The removal or destruction of any part of the landscaping strip on the Defendant's Retained Land would almost certainly receive the same answer but until the circumstances arise, this remains a hypothetical question.