England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, Fetter Lane, London, EC4A 1NL
		Judgment date: 4th November 2014

Master Bowles :

1. By a Claim Form issued on 27^th March 2013, the Claimant, Birdlip Limited (Birdlip), the owner of a freehold property at and known as Little Orchards, Layters Way, Gerrards Cross (Little Orchards), seeks a declaration, pursuant to section 84(2) of the Law of Property Act 1925, that certain restrictive covenants imposed over that property by conveyances dated, respectively, 1909 and 1910 are not enforceable by the Defendants, Andrew and Michelle Hunter. Mr and Mrs Hunter are the owners of an adjacent property at and known as Ashlea House, 46 Bulstrode Park Way, Gerrards Cross (Ashlea).
2. By application notice issued on 11^th April 2013, Birdlip now seek that declaration pursuant to Part 24 of the Civil Procedure Rules and on the footing, therefore, that Mr and Mrs Hunter have no realistic defence to the Claim.
3. It is not in dispute but that the two properties with which I am concerned were prior to their conveyances off in 1909 and 1910 in the common ownership of a Mr Hampton and a Mr Moon.
4. By a conveyance dated 3^rd May 1909 the principal part of Little Orchards, was conveyed to a Mr Lovell and a Mr West.
5. That conveyance contained a covenant by the purchasers 'for themselves their respective heirs executors administrators and assigns .. with the Vendors their heirs and assigns and with the owner or owners for the time being of the adjoining and adjacent estate now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter Gerard's Cross and Iver that the Purchasers their heirs and assigns' would 'at all times hereafter observe and perform the .. stipulations and restrictions specified in the Schedule' to the conveyance.
6. By a conveyance dated 18^th April 1910 the land now constituting Ashlea, together with other land, which has subsequently been partitioned off and now makes up the balance of Little Orchard, was conveyed by Mr Hampton and Mr Moon to a Mr Adams.
7. By that conveyance the purchaser 'with the intent to bind all persons in whom the hereditaments hereby conveyed shall for the time being be vested but not so as to be personally liable under this covenant after he shall have parted with the same' covenanted 'with the Vendors and the survivor of them their and his assigns and other the owners or owner for the time being of the adjoining or adjacent estates now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter Gerard's Cross and Iver that he the Purchaser' would 'observe and perform the stipulations and restrictions contained in the Schedule' to the conveyance 'so far as the same' were 'applicable to the hereditaments' conveyed.
8. The stipulations and restrictions contained in the Schedules to the two conveyances were, save as set out below, in substantially identical terms.
9. The stipulation which has given rise to these proceedings is the stipulation in the 1910 conveyance that no building other than one detached residence should be built upon the land conveyed by that conveyance. It is common ground that, in consequence of that stipulation and if the relevant covenants are enforceable then Birdlip cannot, as it wishes, build two further houses upon that portion of Little Orchards that derives from the 1910 conveyance.
10. The corresponding stipulation in the 1909 conveyance is in different form, in that it provides that no more than one or two detached residences be built on the land conveyed by the 1909 conveyance.
11. Other stipulations provided as follows:

i) For the fencing of the land conveyed or the protection of existing hedge;

ii) For a minimum prime cost of £750 for the house to be built on the 1910 conveyance land and £400 for any house on the 1909 conveyance land;

iii) For the houses constructed to be detached;

iv) For the houses constructed to be used only as private or professional residences and not to be let out as flats;

v) For no detached privy or water closets to be built on the land;

vi) For the land not to be used for any purpose which should in any way be a damage to the Vendors their previous or future assigns or tenants or to the owners or tenants of adjoining or adjacent property;

vii) For washing not to be hung out to dry on the conveyed land;

viii) For no temporary or travelling buildings or caravans to be placed on the conveyed land;

ix) For no permanent building to be constructed on the conveyed land until plans and elevations had been approved by the Vendors surveyor. The 1910 conveyance qualified or explained that restriction on the footing that it was required only for the mutual benefit of purchasers to prevent depreciation of the property by the construction of unsightly buildings. That explanation is not to be found in the 1909 conveyance.

x) For restriction of the construction of buildings outside the building line shown on the approved plans or within ten feet of the boundaries.

xi) For the purchaser to refuse permission for any traction engines to pass over roads on the estate to deliver materials to the conveyed land.

12. Both conveyances contained a reservation by the Vendors of their right to vary the stipulations and restrictions in the conveyances in respect of other parts of the estate.
13. The estate referred to in stipulation (xi) above and in respect of which the vendors, Mr Hampton and Mr Moon reserved the right to vary the various stipulations in the 1909 and 1910 conveyances is not defined at all in the conveyances.
14. The Defendants' Defence, however, and the evidence put in by Mr Hunter on their joint behalf asserts that a lotted estate plan formed part of the contractual documentation for each conveyance and was attached to each conveyance.
15. As to the contractual documentation, although the contracts of purchase in respect of the two subject properties, Ashlea and Little Orchards, are not in evidence, the contract in respect of the purchase, from Mr Moon and Mr Hampton, by a Mr Turnbull, of a nearby property, Willowhayne, 37 Bulstrode Way, is in evidence. That contract is dated 3^rd February 1908. The contract is in what is clearly a standard printed form and the property is described as being Lot 38 in the 'Plan on the other side hereof'.
16. By way of explanation, the contract is printed on the back of a large plan itself described as 'Plan of Building Sites at Gerrard's Cross Bucks.' The plan shows an area of land edged red and marked out in numbered lots, each lot being dimensioned and, where unsold, marked with the price for which it was available for purchase. Sold lots are shown in white and unsold lots in pink. A caption on the face of the plan states: 'N.B. The Estate Boundaries are edged in Red and the sites as at present staked out for sale are colored Pink'.
17. At the date of the contract and, therefore, of the plan, the land which now forms the two titles with which I am concerned formed part of the pink unsold land and fell within the land edged red and, therefore, within the 'Estate Boundaries'. It is clear, however, from the 1909 and 1910 conveyances that the land conveyed by those conveyances did not precisely reflect the land as lotted in the plan on the reverse of which the 1908 contract relating to lot 38 had been drawn up.
18. Additionally, in the course of argument and by reference to a number of the other conveyances by which the land falling within the 'Estate Boundaries', as shown on the 1908 plan, had been sold off by Mr Hampton and Mr Moon (in some earlier instances together with a Mr Gilks, who appears from recitals to a number of the conveyances to have been joint tenant with Mr Moon and Mr Hampton of the lands sold off and to have died without severing the joint tenancy), Mr Chew, for the Claimant, was able to show me that, as with the 1909 and 1910 conveyances, the lands, as sold, had not always replicated the lands, as lotted in that plan and that, for example, as between the 1908 plan and the 1909 and 1910 conveyances, the line of one of the roads running through the land edged red, Layter's Way, had been altered with a consequent impact upon the size and shape of the lots affected by the change in the line of the road.
19. Under clause 5 of the contract in respect of Lot 38, the property agreed to be sold was expressed to be sold and was to be conveyed 'subject to such of the stipulations and restrictions set out in the First Schedule … as relate to the property' and the purchaser of the property agreed that 'by his conveyance' he would covenant 'for himself, his heirs, executors, administrators and assigns with the Vendors and the survivors and survivor of them, their and his assigns and other, the owner or owners for the time being of the adjoining and adjacent estates now or formerly belonging to the Vendors in the Parishes of Chalfont St Peter, Gerrard's Cross and Iver, that the Purchaser, his heirs and assigns' would 'at all times hereafter observe and perform the … stipulations and restrictions, but the Vendors' should 'not be bound to enforce or effectuate the said stipulations and restrictions.'
20. The stipulations and restrictions in the First Schedule to the contract (including the vendors' reservation of the right to vary those stipulations and restrictions in respect of other parts of the estate), were in all material respects identical to the stipulations and restrictions to be found in the 1909 and 1910 conveyances and also in a large number of the other original conveyances by which land falling within the 'Estate Boundaries' as described on the 1908 plan was sold off. The form of the covenant in each conveyance (that is to say the named parties to the covenant) was, likewise, in all material respects, identical to the form of the covenant into which the parties to the Lot 38 contract agreed to enter.
21. The only distinction of any weight at all to which my attention was drawn between the stipulations and restrictions, as set out in the contract, and the stipulations and restrictions, as set out in the various conveyances, was that, as in the 1909 conveyance, in a number of other conveyances (those of 10^th September 1906 to a Mr Young, of 1^st March 1917 to a Mr Easter and of 4^th February 1907 and 16^th May 1907 to a company, Hampfields Ltd) the explanation, or qualification, in the restriction set out in paragraph 11(ix) of this judgment, to the effect that that restriction, namely a restriction upon building save following the approval of plans, was required only for the mutual benefit of all purchasers and to prevent depreciation of the property by the erection of unsightly buildings, does not occur.
22. On the evidence currently available, I am in no doubt but that the lands within the 'Estate Boundaries', as shown on the 1908 plan were, over time, sold off out of the common ownership, initially, of Mr Gilks, Mr Hampton and Mr Moon and, upon the death of Mr Gilks and the vesting of his interest in Mr Moon and Mr Hampton by survivorship, of Mr Moon and Mr Hampton.
23. I, further, see no reason to doubt but that the process whereby the various parcels were sold off broadly replicated that which was used in respect of Lot 38; namely that the lots, or plots, in question, including, therefore, the lands conveyed by the 1909 and 1910 conveyances, with which this case is concerned, were sold pursuant to standard form contracts, whereby the purchaser of each lot, or plot, agreed to enter into a covenant in the relevant conveyance in the like form and in respect of substantially the like stipulations and restrictions as are set out in the First Schedule to the 1908 contract, and pursuant to which the relevant lots, or plots, were, in due course, duly conveyed in accordance with those contracts and subject, therefore, to the agreed covenant. The known fact that Lot 38 was sold off pursuant to a standard form contract coupled with the further fact that there are in being so many identical, or near identical, conveyances in respect of land sold off from within the 'Estate Boundaries', as shown on the 1908 plan, seems to me to point very clearly to the use of an identical conveyancing process in respect of each transaction.
24. I can, on the like footing, see no reason to doubt but that the standard form contracts pertaining to the sale of other lots and other land falling within the 'Estate Boundaries', as shown on the 1908 plan, including, therefore, the land in the 1909 and 1910 conveyances were, as with the standard form contract in respect of Lot 38, drawn on the reverse of the then current plan of the building sites available for sale at Gerrards Cross, or that such plan was not in substantially the same form and similarly marked up as is the 1908 plan.
25. Naturally, the plans cannot have been identical, since, if properly worked through, each plan would show the state of the land falling within the 'Estate Boundaries' (what land was sold and what land was still to be sold) at the date of any given contract and would, therefore, have been updated following each sale.
26. Given, moreover, that it is clear from the 1909 and 1910 conveyances themselves that the land actually sold off did not conform with the lots as laid out in the 1908 plan and that, as already stated, the line of Layter's Way, running through the land within the 'Estate Boundaries' was altered during the period during which the lands within those boundaries were being sold off, it is clear that, over time, some changes were made in the way that the land within the 'Estate Boundaries' was laid out for sale. There are no indications, however, on the material before me, that the 'Estate Boundaries', themselves, that is to say the extent of the land edged red on the 1908 plan, was modified or altered at any stage.
27. All that said, it seems to me to be completely clear that the references to the estate in the stipulations and restrictions set out in the First Schedule to the contract relating to Lot 38 can only have been to the estate (that is to say the land edged red) as shown on the plan on the reverse of which the contract was drawn. Since, as it seems to me, the high likelihood is that other parcels sold off from within the Estate Boundaries, as shown on that plan, were sold off in the like manner, the same references to the estate will have appeared in other standard form contracts entered into in respect of other parcels sold off and will, likewise, have been references to the plans upon which, or upon the reverse of which, the relevant contracts will have been drawn. Further, since the stipulations and restrictions contained in the 1909 and 1910 conveyances and in the other conveyances of land within the 'Estate Boundaries' will have been included in those conveyances to give effect to the parties' contractual promises that they would covenant in their conveyances, in the terms set out in their contracts, to observe and perform the stipulations and restrictions set out in the First Schedule to their contracts, it necessarily follows that the estate, as referred to in the conveyances, will, likewise, have been to the estate as shown on the relevant plans.
28. I am mindful, of course, that this is an application under Part 24 and not the trial of the Claim and I accept that it is possible, although I think unlikely, that my conclusions, as set out above, as to the manner and circumstances in which the land falling within the 'Estate Boundaries', as shown on the 1908 plan, came to be sold off and developed may be proved wrong by the addition, at a trial, of further evidence.
29. The parties, in particular Mr and Mrs Hunter, have, however, already carried out considerable researches and have, thus, been able to make available to the court, as I have already made clear, copies of a large number of original conveyances, as well as the original plan and contract pertaining to Lot 38.
30. Given that the lands in question were all conveyed and the relevant covenants entered into some one hundred or more years ago (the most recent original conveyance I have seen is dated 1913), given that Mr and Mrs Hunter have, as the filed evidence makes clear, behind them the resources and materials of a local association the purpose of which has been to enforce and monitor the covenants with which I am concerned and given the evident efforts which have already been made to bring relevant materials before the court, it seems, as I say above, unlikely that there is very much more to find.
31. In so saying, I do not overlook the assertion, which has been pleaded and to which reference has already been made, that, in addition to the contract being drawn on a plan of the estate, such a plan was also attached to the several conveyances.
32. No evidence has been advanced to support that proposition and, given the searches which have been made and given that Mr Hunter's evidence is that he has seen apparent examples of this among documents retained by members of the local association, it is surprising that, if examples could be provided, they have not been. It is also surprising, if, indeed, plans were actually attached to the relevant conveyances that in none of the conveyances I have seen, is any reference at all made to any plan.
33. In this regard, I think that the Defendants have overstated their case. I am satisfied, as is clear from the foregoing, that, not merely are there realistic prospects that Mr and Mrs Hunter would establish at a trial that the land falling within the estate was sold off and conveyed on the terms and in the manner and circumstances set out in paragraphs 22 to 27, but that it is likely that that was the case. Consequently, I am satisfied that the likelihood is that it would be established at a trial that each purchaser of land within the estate entered into a contract drawn upon a plan of the estate showing the 'Estate Boundaries', as shown on the 1908 plan and, therefore, that at completion each such purchaser was fully aware of the extent of the estate. There seems to me, however, for the reasons set out in paragraph 32, no realistic prospect of it being established at a trial that plans of the estate were attached to each conveyance.
34. The question, then, is whether, on the facts, which, at least realistically and, in my judgment, probably, will be established at a trial, Mr and Mrs Hunter have a realistic defence to the Claim and realistic prospects, therefore, of establishing as against Birdlip the enforceability of the stipulations and restrictions contained in the 1909 and 1910 conveyances. Putting the matter the other way, in recognition of the fact that it is for Birdlip to make out its application, can Birdlip, on the probable, or potential facts, as I have set them out, show that Mr and Mrs Hunter have no realistic prospect of establishing the enforceability of the relevant stipulations and restrictions.
35. The case, as originally advanced by Birdlip, in Mr Chew's initial skeleton argument was based, primarily, upon the contention that there was no sufficient annexation of the benefit of the relevant stipulations and restrictions in the two conveyances in favour of Ashlea.
36. As a subsidiary point, relating only to that part of Little Orchards which derives from the 1910 conveyance and which has been partitioned off from Ashlea, he submitted that, because both Ashlea and the relevant part of Little Orchards formed the subject matter of the 1910 conveyance to Mr Adams and because Mr Adam's covenant, as contained in that conveyance, to observe and perform the relevant stipulations and restrictions, constituted a burden upon all the land the subject of the 1910 conveyance, including, therefore, Ashlea, Mr and Mrs Hunter, as owners of Ashlea, far from having the benefit of the covenant, were in fact burdened by the covenant and the covenant could not, therefore, even if otherwise enforceable, be enforceable by them.
37. As a further point, Mr Chew submitted that the change in the character of the neighbourhood since the relevant covenants were entered into, namely the full development of the estate, meant that the covenants, even if technically enforceable, should not now be enforced.
38. Mr Beglan, for Mr and Mrs Hunter, acknowledged that the covenants were not enforceable by way of annexation and founded himself, exclusively, upon the contention that the manner and circumstances in which land falling within the boundaries of the estate, as shown on the 1908 plan, had been sold off evinced a common intention that the covenants in the several conveyances of those lands be mutually enforceable by purchasers of those lands, including, therefore, purchasers of the lands conveyed by the 1909 and 1910 conveyances, such as to give rise to a 'local law' arising out of an enforceable building scheme.
39. On that footing he was able to submit that the covenants in question were intended to reflect the intended character of the estate as it developed and hence that no question of change of character arose. He was also able to submit, in reliance upon Brunner.v. Greenslade [1971] Ch 993, that the fact that Mr and Mrs Hunter might not have the benefit, as a matter of contract, of the covenant would not, if the covenant formed part of an enforceable building scheme, preclude them from enforcing the covenant; the enforceability arising not from contract but from an independent equity arising from the common intention, underwriting any enforceable building scheme, that the relevant covenants be mutually enforceable by owners of the land within the scheme.
40. In the result, the argument before me turned solely upon the question as to whether it was realistically arguable that the covenants in the two conveyances and the stipulations and restrictions the subject of the covenants formed part of an enforceable building scheme existing in respect of the estate and it is for that reason that, in the earlier part of this judgment, my focus has been on the manner and circumstances in which the land falling within the estate, including the land conveyed by the 1909 and 1910 conveyances, came to be sold off.
41. Mr Chew based his primary submission that no realistic case for an enforceable building scheme over the estate had been made out, upon the failure of the covenants in question to adequately identify the land said to be the subject of the scheme. His contention was that the extent of the estate intended to be subjected to the scheme of local law must be found in, or readily ascertainable from, the covenant itself and that, in this case, the land said to be comprised within the building scheme, namely the land shown on the 1908 plan, is not merely not identified, or defined, in the relevant covenants, but is wholly inconsistent with the language of the covenants, in that, on their face the covenants are not expressed to benefit the land shown on the 1908 plan, but, rather, the Vendors' unidentified estate, or estates, in the parishes of Gerrard's Cross, Chalfont St Peter and Iver; the latter parish being not even contiguous to the parish of Gerrard's Cross and being at such a distance that the covenants in the 1909 and 1910 conveyances could not realistically be said to touch and concern land in that parish.
42. Mr Chew reinforced that submission by pointing out that had it been the intention of the parties to the various conveyances to create a local law over the estate shown on the 1908 plan, it would, by reference to that plan, or an equivalent plan, have been very easy to do so. The fact that that did not happen and that the conveyances themselves do not define the land purchased by reference to lots, or by reference to any plan showing plots or lots, was, in his submission, powerful further evidence that no building scheme over that land was intended. The fact, that there are, as previously set out, plain differences between the lands conveyed by the 1909 and 1910 conveyances and the land as lotted in the 1908 plan and that, in other respects, such as the change in the configuration of Layter's Lane, the internal layout and consequent lotting of the estate altered between 1908 and the date of the 1909 and 1910 conveyances, was, Mr Chew submitted, further evidence that the 1908 plan was no more than a site, or sales, plan and had no wider significance.
43. In regard to authority, Mr Chew reminded me of the dictum of Goff J, in In re Wembley Park Estate Co. Ltd.'s Transfer [1968] Ch 491 at 502-503, as approved by the Privy Council in Jamaica Mutual Life Assurance Society .v. Hillsborough Ltd. [1989] 1 WLR 1101 at 1108, to the effect that to imply a building scheme from no more than the existence of a common vendor and the existence of common covenants would be to go too far. He also took me to the decision of Romer J, in Tucker .v. Vowles [1893] 1 Ch 195, in which, on particular facts, Romer J had held that where a vendor had prepared a plan of a building estate showing lots with houses marked on them and where an intending purchaser is shown that plan and enters into an agreement to purchase plots shown on that plan, the agreement being in a printed form and containing, as part of that printed form, a restrictive covenant, the purchaser was not entitled to assume that the whole estate shown on the plan was to be governed by a building scheme and that each lot sold would be governed by the printed restrictive covenant.
44. In regard to the definition, or identification, of the land said to be subjected to the building scheme, Mr Chew relied, rightly, on Jamaica Mutual as authority, if needed, for the proposition that an essential ingredient of a building scheme is the adequate identification of the land to which the scheme relates. He relied, further, upon the decision of the Court of Appeal in Kelly .v. Barrett [1924] 2 Ch 379, in particular the judgment of Warrington LJ, at 405 to 407, to the effect that it is essential to an enforceable scheme that the parcels of land which are to enjoy rights under the scheme are specified. Additionally and by analogy, reliance was placed upon the decision of the Court of Appeal in Crest Nicholson Residential (South) Ltd .v. McAllister [2004] 1 WLR 2409, in particular Chadwick LJ at 2422, an alleged annexation case, that for their to be a covenant enforceable by annexation, the land said to be benefited by the annexed covenant 'should be so defined' in the relevant conveyance 'as to be readily ascertainable'. Mr Chew submitted that the same rule was applicable in respect of a building scheme.
45. I accept that the fact of a common vendor and of common covenants does not, of itself and necessarily, point to, or give rise to, an enforceable building scheme. Taken in isolation those facts might prove only that the vendor wished by the covenants to protect his retained land. Conversely and as submitted by Mr Beglan, it is, I think, clear, from such cases as Re Dolphin's Conveyance [1970] 1 Ch 654 and Baxter .v. Four Oaks Properties Ltd. [1965] Ch 816, that, contrary to the views expressed by Warrington LJ in Kelly, in the passages between pages 405 and 407 referred to above, it is not a pre-condition of an enforceable scheme that the land the subject of the scheme has been laid out in lots. What the court is looking for in any given case is evidence of a common intention that the covenants entered into were for the benefit of the several purchasers of land falling within the building scheme, or scheme of development, and were not merely entered into for the protection of the vendor in respect of his remaining property.
46. As to the evidence in respect of that common intention, it being a question of fact, not law, as to whether the requisite intention is established, it is clear law that the court can have regard to any circumstances which throw light upon what the intention was.
47. That said and while not detracting from the last foregoing, it has been recognised, over and over again, in the authorities that useful guidance as to the existence of an enforceable scheme is to be found in the judgment of Parker J in Elliston.v. Reacher [1908] 2 Ch 374 at pages 384 and 385 and that, as set out in those pages, an enforceable scheme will be established if (a) the party seeking to enforce and the party against whom enforcement is sought derive title from a common vendor; (b) prior to the sale of the lands in question, the vendor has laid out his estate, or a defined part of his estate, including the relevant lands, in lots subject to restrictions intended to be imposed on all the lots and consistent only with some general scheme of development; (c) the restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of the vendor's other retained land; (d) the lands were purchased from the common vendor upon the footing that the restrictions were to enure for the benefit of the other lots included in the general scheme, whether or not also intended to enure for the benefit of the vendor's other retained land.
48. In elaboration of points (c) and (d), Parker J observed, firstly, that the vendor's object in imposing the restrictions was to be derived from all the circumstances, in particular the nature of the restrictions, and that if, in fact, the general observance of the restrictions was calculated to enhance the values of the lots offered for sale, it was an easy inference that the vendor intended the restrictions to benefit all the lots, even though he might retain other lands the value of which might be similarly enhanced; and, secondly, that, where points (a) (b) and (c) were established, point (d) would readily be made out providing that the relevant purchasers had notice of the facts involved in the first three points.
49. In this case, on facts likely, or, at least realistically possible, to be found at a trial, both Birdlip's and Mr and Mrs Hunter's land derive from a common vendor and formed part of a lotted estate laid out by that common vendor, which was then sold off by the common vendor, under standard contracts, under which the purchasers agreed to covenant in their conveyances to observe and perform the stipulations and restrictions, which I have set out, and which was duly conveyed to those purchasers by conveyances drawn in accordance with those contracts. The restrictions and stipulations entered into by the purchasers, including Birdlip's and Mr and Mrs Hunter's predecessors were, classically, of the kind calculated and, hence, intended to enhance the value both of the vendor's retained land and the other lots offered for sale, in that they were designed to establish and to maintain a low density development of detached and relatively high value properties. Given the likely manner and circumstances of the sales, as earlier set out, in particular the use of a standard contract, containing standard stipulations, drawn on, or on the reverse of, a lotted plan of the estate, it seems highly unlikely that purchasers of land on the estate could have been unaware that the land was sold subject to and, in a sense, with the advantage of the common restrictions imposed, or to be imposed, upon the other properties on the estate or was not purchased on that basis.
50. In these circumstances and in application of the guidance to be found in Elliston .v. Reacher, it seems to me that there are very plainly realistic prospects that at trial an enforceable scheme will be found to exist in respect of the land shown on the 1908 estate plan.
51. I do not think that the fact that the size and shape of lots within the estate may have been modified from time to time during the period over which the estate was sold off affects, in any way, the validity of the foregoing conclusion. If, as is clear from Re Dolphin's Conveyance and Baxter lotting is not an essential ingredient in an enforceable scheme, it is hard to see why changes in lotting, or why a purchase within the estate of land other than in conformity with the lotting plan, should affect enforceability, unless it could be demonstrated that such a purchase was effected entirely outside the general scheme and, hence, that the scheme was not, as regards that purchase, to apply.
52. That is not, as it seems to me, this case. The 1909 and 1910 conveyances contain the same stipulations and restrictions as the other conveyances on the estate that I have seen and there is nothing at all to suggest that they were not conveyed in the same manner and by way of the same essential process as other conveyances on the estate and, accordingly, purchased out of the estate on the same basis.
53. By the same token, this case is not comparable with Tucker .v. Vowles. In that case, as explained in the judgment of Romer J, although there was, as it appears, a lotted plan and the use of a printed form of agreement, there was, on the evidence, no intention that each of the lots for sale were to be subject to the same restrictive covenants, or that the printed contract used would be used other than as a convenience, with each form of contract altered according to the terms of the particular bargain, or that the plan, which was, apparently, displayed in the vendor's solicitor's office, was anything other than the plan prepared for purposes of securing a building consent from the relevant authority.
54. In this case, there is clear evidence that each conveyance was intended to be made and was made subject to the same schedule of restrictions and stipulations and that the standard, or printed, form of contract was designed to and did achieve that purpose and was not intended to be a mere convenience and subject to significant variation transaction by transaction.
55. There are, additionally and importantly, a number of further indications, over and above that which can be deduced from the 'shape' of the conveyancing arrangements, such as to point to the existence of a mutually enforceable scheme of covenants over the land shown in the 1908 estate plan.
56. Firstly, albeit that it does not appear in every conveyance, there is the explanatory statement to be found in many of the conveyances, including the 1910 conveyance, that the restriction upon building, other than on the basis of approved plans, was imposed for the mutual benefit of all purchasers and to prevent depreciation by the building of unsightly property. Where a covenant is expressly taken for the mutual benefit of all purchasers, there is, at least, some indication that that covenant is intended to be enforceable by those purchasers.
57. That is the more the case, where, as here, the vendors, by their contract, are not to be bound to enforce the stipulations or restrictions in respect of which a purchaser has covenanted and where, therefore, unless enforceable by purchasers inter se, the covenant could, if the vendors chose not to enforce, become an empty letter.
58. Secondly, the very fact that, as against each purchaser, the vendors expressly exempted themselves from any obligation to enforce covenants taken from any given purchaser is, in my judgment, in itself, something of an indication that the purchasers' covenants were not taken solely for the benefit of the vendors. Had that been so, there would have been no reason at all for such an exemption. The covenant by any one purchaser with the vendors would have had no bearing at all upon the rights of any other purchaser and there would be no question of, or need for, the vendors to exempt themselves from any obligation to enforce.
59. The fact, therefore, that that standard provision existed, denotes, as I see it, a recognition by the relevant parties (the vendors and the several purchasers) that the covenants were taken, in part at least, for the benefit of purchasers and, in that context, the exemption of the vendors from any obligation to enforce is, at the least, an indicator that enforcement of the covenants was intended to be left to individual purchasers inter se; in short, that the covenants were intended to be mutually enforceable.
60. Thirdly and, in my judgment, most significantly, there is, as I see it, a clear nexus between the schedule of stipulations and restrictions, in each case, and the estate plan upon which contracts were, or were likely to have been, drawn.
61. For the reasons already given, I have no doubt that the references in the schedule of stipulations and restrictions to the estate are to the estate as shown on the 1908 plan. The reference to the estate roads, therefore, in the stipulation set out at paragraph 11(xi) of this judgement, is a reference to the roads within the estate shown on the plan. The reservation by the vendors of the right to vary the stipulations and restrictions in respect of other parts of the estate is, likewise, a reference to the estate, as shown on the 1908 plan.
62. The significance, in particular, of this last is as an indicator, I would say a plain indicator, both that the stipulations and restrictions were intended to give rise to a mutually enforceable scheme and that the land intended to be embraced, or subjected, to the scheme was the land shown on the 1908 estate plan and, hence, that the 1908 estate plan was not merely a sales, or site, plan but was intended to define the extent of the land governed by the scheme of covenants.
63. If there was no intended scheme of mutually enforceable covenants in respect of the estate, it is hard to see the need for a power of reservation. As Parker J pointed out, in Elliston .v. Reacher, at page 389, if there was no scheme, then no dispensing power would be necessary. The same point is made by Sir Nicholas Browne-Wilkinson VC, as he then was, in Allen & Others .v. Veranne Builders Ltd, (unreported) 5^th February 1988 at page 8 of the transcript.
64. The implication, of the reservation of a right to vary the stipulations and restrictions in respect of other parts of the estate, is that, absent such a reservation and because of the existence of a scheme, the vendor would not be able to vary or alter the stipulations applicable to other land within the estate. If there is no scheme, then there is no basis at all upon which a vendor could be obliged to impose any particular restrictions and, therefore, no need at all for such a vendor to reserve a right not to do so. The reservation, therefore, of the power to vary in respect of other parts of the estate both confirms the existence of the scheme and defines the land, the estate as shown in the 1908 plan, subjected to the scheme.
65. I do not think that the fact that the land subjected to the scheme is not explicitly identified in the conveyances, or easily ascertainable from the conveyances themselves, but rather emerges from the terms of the stipulations and restrictions contained in the conveyances when coupled with the manner and circumstances in which the lands were conveyed, has the effect, either in law or fact, of preventing or precluding the existence of a mutually enforceable scheme.
66. In particular, I am not satisfied that there is anything in the authorities to suggest, or dictate, that, as submitted by Mr Chew, it is a necessary ingredient of an enforceable scheme that the defined land be easily ascertainable from the conveyance itself.
67. In Jamaica Mutual the Privy Council ( Lord Jauncey), after identifying the essential ingredients of a scheme, including, therefore, the need to identify the land to which the scheme relates, made clear (page 1107 below G) that the existence of those ingredients in any given case was a matter of fact 'to be determined from the terms of the titles and the relevant circumstances surrounding the sales by the common vendor to the various purchasers'. There is nothing there to suggest that the defined land must be easily ascertainable purely from the conveyance, or covenant, itself.
68. Likewise, in Lund .v AJA Taylor Ltd. (1975) 31 P &CR 37, it was only after Stamp LJ, giving the judgment of the court, had reviewed the relevant surrounding circumstances, including the fact that, in that case, the estate plan had not been drawn to the attention of purchasers of land within the estate, and had failed to find within them the necessary intention to create a local law within a defined area, that the court turned to consider the terms of the particular conveyances.
69. That approach is, again, inconsistent with the approach contended for and the submission made by Mr Chew and inconsistent, also, with the approach which, as far back as the decision of Wills J, in Nottingham Brick and Tile Co. .v. Butler (1885) 15 QBD 261 at 269, has been applicable to the existence, or otherwise, of an enforceable scheme; namely that whether such a scheme exists is a matter of fact, 'to be gathered from any circumstances which can throw light upon' the parties' intentions.
70. In the result I reject Mr Chew's submission on this point.
71. Likewise, I am not persuaded by Mr Chew that the fact that the relevant contracts and conveyances do not, as they could have done, define the extent of the land benefited by the covenants in question by reference to the 1908 estate plan, or its equivalent, and purport, rather, to benefit the 'owner, or owners, for the time being of the adjoining and adjacent estate(s) now, or formerly, belonging to the Vendors in the Parishes of Chalfont St Peter, Gerard's Cross and Iver', that is to say to benefit lands other than the lands shown in the 1908 estate plan, is a conclusive indication that no scheme was intended in respect of those lands.
72. To a large extent, I reiterate the foregoing; whether or not a scheme exists and whether or not the land subjected to the scheme is sufficiently defined is a matter of fact to be determined in the light of all the circumstances. One of those circumstances is, plainly, the language of the relevant covenant, or covenants. It is not, however, by any means, necessarily conclusive.
73. The starting point is that the existence, or not, of an enforceable scheme is not simply a question of contract and, therefore, construction. That is clear from Elliston.v. Reacher, Brunner .v. Greenslade, Baxter .v. Four Oaks and Re Dolphin's Conveyance. The question is whether there can be discerned from all the circumstances such a common interest in the mutual enforcement of the relevant covenants within a defined area and such a common intention that they be mutually enforceable as to give rise to an enforceable equity.
74. In this regard, as explained by the then Vice Chancellor in Allen (at page 7), the fact that the covenant in question is not made with the other purchasers, or plot holders, of land within a relevant estate, but is, in form, made only with the vendor, is not at all decisive. In most of the early building scheme cases the relevant covenants were not expressed to be with the other plot owners, or purchasers and yet were held, having regard to all the other relevant circumstances, to be enforceable thereby.
75. By a parity of reasoning, where, as here, the covenants in question are made purportedly to benefit land outside the area which is said to constitute the defined area, that fact will, likewise, not be decisive in establishing a lack of a sufficiently defined area such as to preclude the existence of a scheme, if and provided the other material circumstances establish an intention to create a scheme of mutually enforceable covenants within a defined area.
76. Accordingly, where, as here, as explained, in particular, in paragraphs 62 to 64 of this judgment, there is material which points to an intention that the relevant covenants are to give rise to an enforceable scheme within the estate, as shown on the 1908 estate plan, the fact that the form of the covenant purports to benefit a wider class of covenantees than those purchasing land within the estate is not necessarily fatal and, in my judgment, cannot, in this case and on the material now before me, be held to be fatal to the existence of an enforceable scheme within the area defined by the plan.
77. Clear support for this view is to be found both in Elliston .v Reacher and in Allen.
78. In Elliston .v. Reacher, Parker J was at some pains to emphasise, in the passages at pages 384 and 385 that I have already summarised, that, where a vendor has laid out his estate, or a defined portion of his estate, for development, an enforceable scheme can exist in respect of the lands so laid out even if the covenants, or restrictions, said to be enforceable by purchasers of lands within the scheme, were intended to benefit other lands of the vendor outside the area embraced by the scheme.
79. In Allen, the then Vice Chancellor, founding himself on the above passages in Elliston .v. Reacher, stated, in terms (page 6), that it 'is not necessary that the covenants entered into should benefit only the defined area' and, further, that 'the fact that the vendor ... might have sought to require of a purchaser of a plot a covenant for the benefit of something outside the Estate would not impair the validity of the scheme itself'.
80. It is plain from these passages that, provided that the defined area subjected to the scheme can be identified from other circumstances, the fact, that the covenants, said to be mutually enforceable under and by reason of the scheme, evince an intent to benefit other lands outside the scheme, does not prejudice, or prevent, the existence of the scheme. In this case and for the reasons already given, such other circumstances plainly exist.
81. I add that, while accepting that, in the same way as the language of the covenant is not conclusive as to the identification of the land subject to the scheme, so, equally, it cannot be regarded as conclusive as to the existence of an intention that the covenants be mutually enforceable by purchasers from the common vendor, nonetheless some further guidance as to the intention that the purchasers' covenants be mutually enforceable is to be found in the language of the covenant itself and in the fact that the covenant is expressed to be made with the 'owner or owners for the time being of the adjoining and adjacent estate(s) now, or formerly, belonging to the Vendors in the Parishes of Chalfont St Peter Gerard's Cross and Iver'.
82. The key word, for present purposes, in that covenant is 'formerly'. That word shows an intention not merely to create a covenant enforceable by the vendors in respect of land retained by them at the point of any given sale, but also an intention that the covenant benefit (and so be enforceable by) persons who have previously bought estate land from the vendors.
83. Further, while, again, accepting that the language of the covenant is not conclusive and must be read in the context of all other circumstances, the fact remains that, in terms, the covenant is expressed to benefit purchasers of land formerly (i.e. prior to sale) forming part of the vendors' Gerrard's Cross estate.
84. There can be no realistic doubt but that estate was the estate shown on the 1908 plan and referred to, in the schedule of stipulations and restrictions in the relevant conveyances as 'the estate'. There has been no suggestion that Messrs Hampton or Moon owned any other land in the parish of Gerrard's Cross, other than that shown on the 1908 plan.
85. Subject, therefore, to the caveats already set out, the covenant does appear, on its face, to evince an intention that land purchased out of the vendors' Gerrard's Cross estate (i.e. the land shown on the 1908 estate plan) was intended to be enforceable, not merely by the vendors but by purchasers from the vendors of land on that estate.
86. In the result and for all the reasons that I have set out, at some length, in this judgment, I am satisfied that there are realistic prospects that at a trial, in this case, an enforceable scheme will be held to exist in respect of the land within the 1908 estate plan and, therefore, that the covenants in the 1909 and 1910 conveyances and in the other conveyances of other properties within the boundaries, as shown on the 1908 estate plan, will be held to be enforceable as between owners of land within those boundaries.
87. That is as far as I need to go on this application. I think it fair to say, however, that this has not been a decision at the margins. It seems to me that, on the evidence available to me and on the evidence, which, on the material before me, is likely to be available at trial, the case for an enforceable scheme over the land within the boundaries shown on the 1908 plan is a strong one.
88. Be that as it may, I dismiss the current application.
ADDENDUM TO JUDGMENT

Master Bowles :

89. On 30^th August 2013 a draft of my original judgment in this matter was sent to the parties on the usual basis. By that judgment, I had determined that there were realistic prospects of the Defendants, Mr and Mrs Hunter, resisting the Claim brought by the Claimant, Birdlip Limited (Birdlip), for a declaration that restrictive covenants contained in two conveyances, respectively dated 3^rd May 1909 and 18^th April 2010, of freehold land now known as, or forming part of, the Claimant's property at Little Orchards, Layters Way, Gerrard's Cross, were not enforceable by the Defendants, as owners of an adjacent property, at and known as Ashlea House, 46 Bulstrode Park Way, Gerrards Cross.
90. That determination was reached following full legal and factual argument over a full day and was reached upon the basis that the Defendants had, at the least, a realistic prospect of establishing, at trial, that the covenants, or, more accurately, the stipulations and restrictions contained in the schedules to the two conveyances were enforceable, as against the Claimant, upon the basis that the stipulations and restrictions in question formed part of a mutually enforceable building scheme.
91. In reaching that conclusion and, in particular, in concluding that there was a sufficiently identified area of land said to be subjected to the scheme, I attached considerable weight to an estate plan which is printed on the reverse of the contract of sale relating not to either of the parcels conveyed by the 1909 and 1910 conveyances but to another conveyance, that of Lot 38, as shown on the estate plan, being the conveyance of what is now 37 Bulstrode Way.
92. The contract in respect of Lot 38 contained an obligation by the purchaser to enter into obligations in the conveyance identical to, or virtually identical to, the obligations entered into in the 1909 and 1910 conveyances and contained, also, in a large number of other conveyances of land within the estate boundaries, as shown on the 1908 plan, which had been sold off by the then estate owners.
93. The conclusion I reached, as is set out in paragraphs 22 to 27 of my original judgment, is that, for the reasons there given, the likelihood was that plots, or parcels, falling within the estate boundaries, as shown on the 1908 plan and including, therefore, both 37 Bulstrode Way and the parcels contained within the 1909 and 1910 conveyances, had all been sold off in the same way; namely that they had been sold by way of standard form contracts, in the same form as that used in respect of plot 38 and containing, therefore, in each case, the purchaser's agreement to enter into identical, or near identical, stipulations and restrictions as to the user of the purchased land; that, in each case, the contract had been drawn on the reverse of an estate plan, substantially identical to the 1908 estate plan, and the various plots, or parcels, thereafter conveyed in accordance with the contract and subject, therefore, to the agreed restrictions and stipulations.
94. On that footing, it seemed to me to be clear that references to the estate in the schedule of stipulations and restrictions contained in each contract and, pursuant to each contract, ultimately contained in the various conveyances could only be intended to refer to the estate, as shown in the estate plan upon the reverse of which each contract had been drawn.
95. It further seemed to me that, as set out in paragraphs 60 to 64 of my original judgment, the fact that the schedule of restrictions and stipulations contained an explicit reservation in favour of the vendors of their right to vary the scheduled stipulations and restrictions in respect of other parts of the estate was both indicative of an intention that the stipulations and restrictions were intended to give rise to a mutually enforceable scheme and also indicative of the area of land (namely the land within the estate boundaries as shown on the 1908 plan) intended to be subjected to the scheme.
96. The intention to create a mutually enforceable scheme also seemed to me to derive force from the particular form of the covenant entered into by each purchaser. While there is no doubt that, on its face, the covenant purported to benefit lands outside the estate area, as defined by the estate boundaries in the 1908 estate plan, there is equally no doubt, as set out in paragraphs 81 to 83 of my original judgment, that it was intended to benefit (and so be enforceable by) purchasers of land 'formerly' forming part of the vendors' Gerrards Cross estate and had not, therefore, been taken merely to protect the vendors' unsold land. There being no evidence of any other land owned by the vendors in Gerrard's Cross, it seemed to me, on the materials then available, that the vendors' Gerrard's Cross estate was, or was likely to be, itself, a reference to the land shown within the estate boundaries on the 1908 plan.
97. While acknowledging that the application before me, being, unusually in a case of this nature, an application for summary judgment, and that, in consequence, there had not been an order made for formal disclosure and the possibility existed, therefore, that additional evidence might emerge at a trial which might affect, or modify, my conclusions as to the manner and circumstances in which land within the estate boundaries, as shown on the 1908 plan had been conveyed, I considered, given the passage of time, the efforts made by the parties and, in particular, the fact that the Defendants had had the assistance of a local association, the purpose, or partial purpose of which, being to enforce and monitor the covenants pertaining to what is known as the Moon Estate, that it was unlikely that further materials would emerge.
98. That expectation has proved to be incorrect.
99. Prior to the handing down of judgment and at a date when formal corrections had been provided and by which, as invited by me in my draft judgment, the parties had been discussing a form of order to give effect to that judgment, I was informed by counsel for Birdlip that, contrary to my expectation a further document had emerged, namely an agreement, dated 16^th February 1914, in respect of the sale of Lot 116, being a parcel of land abutting Marsham Way and to the East of the land conveyed by the 1909 and 1910 conveyances and the land the subject of the 1908 contract. The assertion made, in respect of that agreement, which, as with the 1908 contract, was drawn on the reverse of a plan showing, or purporting to show, the 'Estate Boundaries', was that that plan did not replicate the 'Estate Boundaries', as shown on the 1908 plan, and that, in consequence, doubt was cast upon the factual basis upon which I had concluded that the estate boundaries, as shown on the1908 plan defined the area subjected to a building scheme.
100. In accordance with Re L [2013] 1WLR 634, it was submitted that these circumstances dictated, or, at least, suggested, that, rather than hand down judgment in the knowledge that materials existed which, apparently, contradicted the views that I had expressed, leaving those new materials to found an appeal, I should allow a further hearing, in order to hear argument upon the implications arising from the new material; in particular Birdlip's argument that the new material so undermined the basis upon which I had rejected the application for summary judgment that I should now give that judgment.
101. In light of counsel's request and the witness statement of his instructing solicitor, Mr Olins, which accompanied counsel's request and in which Mr Olins explained the circumstances in which the new material had come to hand, I directed that the matter should come back before the court, in order, in the first instance, to determine whether I should allow further argument based upon the new material.
102. At that hearing, in February 2014, I concluded that it was appropriate to allow that argument, provided that it was strictly limited to the question as to whether, if it was demonstrated that a different estate plan had existed several years after the 1909 and 1910 conveyances, that would, in itself and without more, negative the suggested scheme. Additionally, at the further hearing, I would have to have in mind, this still being a Part 24 application, the possibility, demonstrated by the discovery which had given rise to the need for a further hearing, that there might be further relevant material in existence, which might, in its turn, bear upon the matters in issue.
103. Mr Chew, for Birdlip, made two core submissions in support of his contention that, given the new material, I should now give summary judgment in his favour.
104. He submitted, firstly, that, as a matter of law, where two different plans exist in respect of an estate in course of development, that fact is fatal to the existence of a scheme, since it cannot be shown that the alleged scheme relates to a particular defined area. Secondly, he submitted that the fact that there are differences shown between the two plans is indicative of the fact that the vendors never intended to set up a mutually enforceable scheme, since otherwise they would have retained the same estate boundaries throughout the development. The existence of different plans is, he submitted, indicative rather, that the plans, whether 1908 or 1914, were intended merely to be site, or sales, plans and to have no greater significance.
105. In addressing those submissions, it is necessary to deal, in rather more detail, with the two plans, the alleged differences between them and the question as to the extent, if at all, to which the existence, now, of the 1914 contract and plan undermines the conclusions that I had previously drawn in respect of the conveyancing process which had been applied to sales of land falling within the estate boundaries, whether as shown on the 1908 or the 1914 plan.
106. The starting point is that the 16^th February 1914 contract, in very large part confirms my conclusions as to the manner and circumstances in which relevant land was conveyed.
107. The 1914 contract is substantially identical in its terms to the 1908 contract. It contains the same form of covenant by the purchaser in respect of the schedule of stipulations and restrictions to which the conveyance of the parcel in question was to be subject. The stipulations and restrictions are in identical, or near identical form to those contained in the 1909, 1910 and other conveyances referred to in my original judgment.
108. In particular, it contains the same reservation by the vendor of the right to vary the relevant stipulations and restrictions in respect of other parts of the estate (meaning, for the reasons given in my original judgment and outlined in paragraph 6 of this addendum, the estate as shown on the plan upon the reverse of which the contract was drawn) and the same provision, or explanatory note, to the effect that the approval of plans and elevations in respect of any building to be constructed on the conveyed land is required for the mutual benefit of all purchasers as is contained in the 1908 contract and the 1909 and 1910 conveyances. The contract, likewise, contains the same provision as is to be found in the 1908 contract to the effect that the vendors are not to be bound by the contract to enforce or effectuate the stipulations and restrictions contained in the schedule of restrictions and stipulations. At paragraphs 56 to 59 of my original judgment, I explain why, in my view, the latter provisions, as well as the former, point to an intention in the vendors to create a mutually enforceable scheme.
109. Put shortly, there is nothing at all in the 1914 contract, taken in isolation, to cause me to modify my conclusions as to the conveyancing process used in the conveyance of the parcels of land falling within the estate boundaries, whether as shown on the 1908 or the 1914 plans.
110. Nor is there anything in the 1914 contract, or the plan drawn upon the reverse of that contract, to cause me to modify, or alter, the conclusion reached in my original judgment that a mutually enforceable scheme was intended and that the estate, in respect of any given sale, which was intended to be subjected to that scheme was the estate, as shown on the estate plan upon which, or upon the reverse of which, the particular contract had been drawn.
111. Accordingly, I reject Mr Chew's submission that the fact, if it be a fact, that the estate plan drawn upon the reverse of the 1914 contract defines a materially different estate to that drawn upon the reverse of the 1908 contract and which, as I have inferred in my original judgment, was replicated in the other conveyances of land, including, therefore, the 1909 and 1910 conveyances, establishes, to a summary judgment standard, that no scheme was intended and that the plans in question were no more than sales or site plans.
112. That leaves open for consideration what was, undoubtedly, Mr Chew's primary submission, namely that, even if a scheme had been intended, the differences between the estate, as shown in 1908, and the estate, as shown in 1914, establish, to the summary judgment standard, that no enforceable scheme could, as a matter of law arise, because those differences demonstrate, or disclose, the absence of a clearly defined area to which the scheme was to relate and, without which, as explained in the seminal decision in Reid .v. Bickerstaff [1909] 2 Ch 305, the identity the class of persons as between whom reciprocity was intended to exist could not be established.
113. The a priori question to which that submission gives rise is as to whether the differences between the two estate plans, in 1908 and 1914, are, indeed, such as to demonstrate, at this stage and to the summary judgment standard, that, at the time of the 1909 and 1910 conveyances, there was no clearly defined area to which the intended scheme could be seen to relate.
114. In this regard, Mr Chew, rightly acknowledges that, if, in 1909 and 1910 it had been the intention of the vendors and purchasers of the two relevant parcels that a mutually enforceable scheme come into being in respect of the land falling within the 1908 plan estate boundaries, then the fact that, subsequently and subject to the exercise by the vendors of their reserved right to vary the various stipulations and restrictions in respect of other parts of their estate, the vendors had a change of heart and no longer wished a scheme , or no longer wished a scheme over the previously defined area, would not affect the validity of the scheme which had already come into being, or the mutual enforceability of the covenants in the area contemplated by the scheme. The scheme would have (per Megarry VC, in Brunner .v. Greenslade 1 Ch 993) 'crystallised'.
115. What, therefore, given my conclusion that, at all material times, a scheme was intended, Mr Chew is driven to submit is that the 1914 plan demonstrates such differences between the estate as defined in 1914 and as defined in 1908 (and inferentially in 1909 and 1910) as to show that the vendors, while wishing a scheme, failed to appreciate, in respect of an area of the law then in a state of development (Elliston .v. Reacher was decided in 1908, Reid .v. Bickerstaff in 1909), the necessity that the scheme relate to a defined area and, instead, by defining the estate differently at different times, failed, contrary to their intentions, to bring a scheme into being.
116. I am not persuaded.
117. Having carefully considered the two plans, I do not think that they establish, whether to the summary judgment standard, or to any standard, that the area intended to be subjected to the scheme in 1909 and 1910, when the two relevant conveyances were entered into, was so subject to fluctuation as not to give rise to an enforceable scheme.
118. The two plans relate to properties, or parcels, at opposite ends of the vendors' ownership. The two subject properties, or parcels, are on the Western side of the ownership, as is Lot 38, from whence the 1908 plan derives. Lot 116, from whence the 1914 contract and plan derives, is at the Eastern end of the ownership. The two plans reflect these facts.
119. The 1908 plan shows the western part of the vendors' ownership with the eastern end of the vendors' ownership, East of Marsham Lane, as an inset. Conversely and correspondingly, the 1914 plan shows the eastern part of the vendors' ownership with the western part of the vendors' ownership, west of Packhorse Lane, shown in the main, also as an inset. Lot 38, together with the parcels within the 1909 and 1910 conveyances are shown in the main part of the 1908 plan with Lot 116 falling within the inset to that plan. Lot 116 is shown in the main part of the 1914 plan with the parcels within the 1909 and 1910 conveyances falling within the inset to that plan and with the land making up Lot 38 shown as part of the land sold on the inset to that plan.
120. The conclusion I derive from the existence of these two plans, showing what Mr Chew acknowledges to be the same development, both in 1908 and 1914, is that the vendors created one estate plan for purposes of the sale of properties falling in the western part of their ownership and another for the sale of properties, or parcels, on the east side of their ownership. A parcel of land in one area, or another, would be sold under a contract drawn on the plan most relevant to the parcel in question and such that the parcel would be shown on what, for that parcel, would be the main plan, rather than the inset.
121. On that footing, it seems to me to be highly likely that the 1909 and 1910 contracts were drawn on (and referred to the estate as shown on) a plan equivalent to the 1908 contract plan and that it was the estate, as shown, therefore, on that plan which was the estate was intended to be the subject of the intended scheme. Correspondingly, land to the east of Marsham Way would be sold under a contract drawn on a plan equivalent to the 1914 plan and it was the estate, as sought to be shown on that plan which was intended to be subject to the intended scheme.
122. I do not think, however, and here I agree with Mr Chew, that there was ever any intention to create separate schemes relating, separately to the eastern and the western sides of the development. This was one development and it seems highly unlikely that there was ever any intention to create what would have been different and overlapping schemes.
123. Rather, I think, that the likely intention was to create one scheme over the entire development and that the two plans, for use, respectively, on the eastern and western sides of the development, were, in principle, intended to portray one and the same estate; that estate being the estate subjected to the scheme.
124. In so saying, I do not disregard the perceived differences between the estate as shown on the 1914 plan and that shown on the 1908 plan.
125. The major of those differences is to be found in respect of the inset to the 1914 plan and the manner in which that inset links up with the main plan.
126. The point made by Mr Chew was that, on the inset to the 1914 plan, an area of sold land to the west of Packhorse Lane and South of Bulstrode Way (and including the parcel of land constituting Lot 38) is not shown as being within the red estate boundaries, whereas, on the 1908 plan, it is so shown.
127. It seems to me that the high likelihood (and certainly a real possibility) is that this was a simple error and was not intended to show a reduction in the defined area subjected to the scheme, or to demonstrate, as Mr Chew put it, a 'dynamic' boundary to the estate. It is clear from the main part of the 1914 plan that the red estate boundary did extend west of Packhorse Lane and south of Bulstrode way. The boundary of the estate is not, however, 'closed off' on the main plan at that point, as it would have been had the intention been to denote that Lot 27 (the last lotted site shown) marked the south western limit of the estate. Rather, I think, the draughtsman will have deliberately left the boundaries of the estate open ended, with the intention of showing that the estate continued on the inset (as he has done, on the inset plan, in respect of the estate land north of Bulstrode Way) and then failed to draw the extension of the red estate boundary line around the sold land on the southern part of the inset.
128. Whether or not, this mistake, as I think it to be, was one which occurred solely on this plan, or whether it occurred also on other plans, is, of course, quite impossible to say. Whichever the answer, it does not seem to me to establish, or evince, any intent that the estate to be subjected to the scheme was different to that shown on the 1908 plan.
129. Mr Chew, rightly, supported his submission by reference to the fact that a purchaser of a plot on the estate in 1914 would not know, because of the matters discussed above, that plots in the inset area, where the estate boundary has not been marked in, fell within the scheme and that he could enforce covenants against the owners of such plots, or, perhaps more materially, that they could enforce against him.
130. I do not regard that legitimate concern as impugning the validity of the scheme, if, looking at all the evidence, the court is otherwise satisfied that the intended area to be subjected to the scheme was adequately defined and if the other ingredients of a valid scheme are made out.
131. The answer to Mr Chew's point lies, I think, in the application of the doctrine of notice.
132. In the circumstances that he formulates, the purchaser in 1914 of a plot on the estate sold under a contract drawn on the 1914 plan would, although buying land within a scheme and having notice of the covenants relating to the scheme, have no notice that the scheme and the covenants extended to the land erroneously excluded from the estate by the 1914 plan. Such a purchaser would, therefore, be a purchaser of a legal estate without notice of the covenant, otherwise enforceable against him in equity by the owner of land in the excluded area, and the covenant would not, therefore and for that reason, be enforceable against him.
133. The other, or further, difference, pointed up by Mr Chew, relates to an area of land to the east of Marsham Lane and south of what appears to be an extension to Marsham Way created between 1908 and 1914. In the inset to the 1908 plan there is an area of land marked 'sold' falling within the estate boundary. On the 1914 plan, that area, seemingly forming part of the grounds to a house constructed and named Marsham Lodge, falls outside the estate boundary.
134. A number of points arise.
135. Firstly, in regard to the estate as a whole, whether as shown in 1908 or 1914, the discrepancy is very small. Indeed, taking the two plans together, the overriding impression is not of their differences but of the fact that they marry so well. In that context, I fail to see that such modest differences as there are in the two plans can justify any inference that the vendors intended to define the estate subjected to the scheme differently at different times. Rather, as it seems to me, the overwhelming similarities between the estate, as shown on the two plans, only serves to reinforce the conclusion that the scheme was intended to apply and did apply and was known to purchasers to apply to the estate as shown, in substantially identical form, on the two plans.
136. As between the two plans, it seems to me that it is the 1908 plan, drawn at an early stage in the development of the vendors' ownership (the first conveyance of land within the development that I have seen is dated September 1906), which is the more likely to reflect the true extent of the development and of the estate intended to be subjected to the scheme.
137. As explained in my original judgment, the estate plan will have had to be updated at every sale, so as to show land sold and land still to be sold. In that context and given what seems to me to be the clear mistake made in marking up the estate at the western end of the 1914 plan, the greater likelihood and, certainly, a realistic possibility is that a further error was made in marking up the estate boundary at its eastern end. Such a mistake seems to me to be the more likely in circumstances where it appears that the land shown in 1908 as being within the estate is, in 1914, part of an overall parcel of land, some of which has always been outside the estate, making up Marsham Lodge.
138. In this context, the same considerations as to the position of a purchaser for value of a legal estate without notice as have been already discussed will, here, apply.
139. In the event that the owner of that part of Marsham Lodge, as had been shown as and formed part of the estate in 1908 and which, therefore, on this thesis, was held subject to the benefit and burden of the negative restrictions and stipulations contained in the various conveyances of the estate land, wished to enforce those covenants against a purchaser of land on the estate, purchasing upon the basis of the plan upon which the 1914 contract had been drawn, or its equivalent, that purchaser would be entitled to dispute liability upon the footing that, as against that owner, he was a purchaser for value of a legal estate without notice of the covenant and not , therefore, bound in equity thereby.
140. A further consideration, in respect of this parcel of land and, potentially, in respect of any apparent reduction in the extent of the estate over time, arises from the reservation by the vendors, in each conveyance I have seen of land falling within the estate, as shown on the 1908 plan, of their right, in respect of other parts of the estate, to vary the relevant restrictions and stipulations.
141. The effect of that, as I see it, is to enable the vendors, if they so chose, to sell land otherwise within the estate on terms that did not include the various restrictions and stipulations to be found in the contracts and conveyances before the court. In that event, it would be both logical and sensible, when drawing an estate plan of the estate after any such sale, to treat that land as removed from the estate and so to make clear to a purchaser of estate land after such a sale that the land subjected to the scheme of mutual covenants did not include land which had been sold without those covenants.
142. In this instance, even although the land ostensibly removed from the estate in the 1914 plan and which, so it seems, forms, or formed, part of the grounds of Marsham Lodge, when constructed, had, apparently, already been sold in 1908, there is no reason to think it either fanciful, or unrealistic, that the purchasers of that land from the estate did not, either at the point of purchase, or subsequently, agree, or vary the terms of their acquisition such that they were not, or no longer, bound by the relevant covenants and such that, in a later iteration of the estate plan, the land in question was not shown as part of the subjected estate.
143. In the result, I remain of the same view as is set out in my original judgment, namely that, on the existing material, even as now expanded, Mr and Mrs Hunter have, at the least, realistic prospects of establishing that their land and that of the Claimant form part of a mutually enforceable building scheme, the land subject to that scheme being (subject to any instances, as discussed above, where the original vendors exercised their right to sell on terms which varied or excluded the restrictions and stipulations in respect of any particular conveyance) the estate land shown within the 1908 plan.
144. On that footing, Birdlip's application, by way of Part 24 application, for a declaration that the negative stipulations and restrictions contained in the 1909 and 1910 conveyances are not enforceable by Mr and Mrs Hunter is dismissed.
145. I add that, in reaching the above conclusion, I have not founded myself upon the possibility that further relevant materials may, in the future, come to light and be available at a trial. In the light of what has already occurred, however, it is plain that that possibility cannot, even now, be excluded and may impinge, one way or the other, upon the conclusions so far reached. For that reason, also, this case is and remains inappropriate to a Part 24 disposal.
146. For one reason, or another, the determination as to whether there should be a further hearing and then the further hearing, itself, took a long time to come on. Thereafter, the preparation of this judgment has been delayed, I regret, by reason of my ill health throughout much of August and September. For that I apologise.