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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hughes Family Property Co Ltd & Anor v Cotton & Ors [2025] EWHC 1636 (Ch) (01 July 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/1636.html
Cite as: [2025] EWHC 1636 (Ch)

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Neutral Citation Number: [2025] EWHC 1636 (Ch)
Case No: PT-2024- BRS-000117

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)

Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
1 July 2025

B e f o r e :

HHJ PAUL MATTHEWS
(sitting as a Judge of the High Court)

____________________

Between:
(1) HUGHES FAMILY PROPERTY CO LTD
(2) HUGHES TRADING CO LTD
Claimants
- and -

(1) SOPHIE KATE HATHAWAY COTTON
(2) NEIL COTTON
(3) ANDREW BEHAN
(4) JANET SAUNDERS
(5) STEPHEN PAUL MEREFIELD
(6) MARIE MARGARET MEREFIELD
(7) CHERYL DEHN MARVIN
(8) JONATHAN PAUL MARVIN
(9) JONATHAN PAUL PETER PRESTON
(10) SUSAN ANN PRESTON
(11) PHILIP TREVOR BLYTHE
(12) ELIZABETH SARA BLYTHE
(13) HERBERT SONANDER
(14) PAMELA SONANDER
Defendants

____________________

James Fuller (instructed by Henriques Griffiths LLP) for the Claimants
The first to fourth defendants appeared in person
The other defendants did not appear and were not represented

Hearing date: 4 April 2025

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10:30 am on 1 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives

    HHJ Paul Matthews :

    Introduction

  1. This is my judgment on a claim commenced by claim form issued on 9 October 2024. It follows an earlier claim brought by the same claimants but without a defendant. On 9 September 2024 I handed down judgment in that earlier claim (under neutral citation [2024] EWHC 2288 (Ch)), explaining why it was inappropriate for the claim to be made without a defendant, and that the obvious persons to be made defendants were those owners and occupiers of the residential properties adjoining the property of the claimants known as 28 Redwalls Meadow, Dartmouth, TQ6 9PR. The present claim was subsequently issued against the persons who were thought to be the owners of the properties at 21 to 27 Redwalls Meadow.
  2. The plan below shows the eight properties in a row fronting Redwalls Meadow, with number 21 on the left and number 28 on the right.
  3. The claim is made under section 84(2) of the Law of Property Act 1925, which relevantly provides as follows:
  4. "(2) The court shall have power on the application of any person interested—
    (a) To declare whether or not in any particular case any freehold land is [or would in any given event be] affected by a restriction imposed by any instrument; or
    (b) To declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is [or would in any given event be] enforceable and if so by whom.
    … "
  5. The claim is supported by two witness statements of Bradley Simon Hughes, one dated 10 October 2024 and the other dated 18 March 2025. It relates to 28 Redwalls Meadow. This is a residential property. It is the subject of two registered titles. The first claimant is the registered proprietor of the fee simple estate in part of the land, and the second is the registered proprietor of the fee simple estate in the remainder. The land is the subject of a restrictive covenant contained in a conveyance of the whole land dated 5 August 1977. That covenant forbids the construction of any building on that part of the land now owned by the second claimant/applicant. The claim seeks a declaration that this covenant does not bind the land, ie that the claimants' land is not "affected" by the covenant. Their evidence does not say this in so many words, but it seems clear that the applicants wish to construct such a building on the land. I am in no doubt that the claimants are "persons interested" within section 84(2), and accordingly have standing to bring this claim.
  6. The fourteen defendants are the owners of the seven residential properties known as 21 to 27 Redwalls Meadow. Of those fourteen, only the owners of numbers 21 and 22 (first to fourth defendants) have taken any meaningful part in these proceedings. They did not file any evidence, but they appeared in person at the hearing (which was conducted remotely by Teams) and made oral submissions. The fifth and sixth defendants (number 23) intimated that they did not wish to take part. The ninth and tenth defendants (number 25) returned the acknowledgment of service form, indicating no intention to contest the proceedings. The eleventh and twelfth defendants (number 26) received but returned the claim form and other papers that were served upon them. The thirteenth and fourteenth defendants (number 27) also received a similar set of papers, but responded that there were errors in them, and nothing further has been heard from them. Although the seventh and eighth defendants were also served, there has been no response from them.
  7. As I have said, the procedure originally adopted by the claimants was the wrong one, but that was put right. And, unfortunately, when the present claim was originally issued, some of the defendants named were no longer appropriate to be defendants, and some who were appropriately defendants had not been named. That too has now been put right. I am satisfied on the evidence that the correct persons have been joined as defendants, and properly served, and even though some of them have not taken any part in the proceedings, they will be bound by the result.
  8. The 1977 Conveyance

  9. The conveyance dated 5 August 1977 ("the 1977 Conveyance") was made between London and County Securities Limited, Richard Norman Darbey Langdon, and Chantreys Building Company Limited ("Chantreys"), of the one part, and Ronald William Peacham and Joan Peacham, of the other part. It is stated to be a conveyance of the property now known as 28 Redwalls Meadow. It deals however with a rather more complicated legal situation than the simple word "conveyance" would suggest.
  10. It appears that London and County Securities Limited (then in voluntary liquidation) was selling as mortgagee of land of which this parcel formed part, and that Richard Langdon was the liquidator of the company. I am told that the company has since been dissolved and the liquidator discharged from office. The purchaser of the parcel of land was Chantreys, which was, however, subselling to Mr and Mrs Peacham as intending owner-occupiers. It is true that there is nothing in the conveyance expressly to show that the mortgagee's power of sale had arisen, or, indeed, that it was being exercised. But this is not actually necessary in order for the purchaser to obtain a good title: Law of Property Act 1925, section 104.
  11. The conveyance defined London and County Securities Limited as "the Company", Mr Langdon as "the Liquidator", Chantreys as "the Purchaser" and Mr and Mrs Peacham as "the Sub-Purchaser". It included recitals to the effect that (1) a company called Thurway Properties Ltd "being then seised of (inter alia) the property hereinafter described for an estate in fee simple in possession" charged the land to the Company (then called London and County (A & D) Ltd), (2) in October 1973 the Company changed its name to the current one, and (3) in March 1975 the Company resolved to go into voluntary liquidation, appointing Mr Langdon as liquidator.
  12. I set out recitals (4) and (5) in extenso:
  13. "(4) The Liquidator acting on behalf of the Company has agreed with the Purchaser for the sale to it of the property hereinafter described for an estate in fee simple in possession together with other properties but no conveyance thereof has hitherto been executed
    (5) The Purchaser has agreed with the Sub-Purchaser for the sale to them of the said property for the said estate at the price of Twenty-two thousand pounds and it has been arranged that the said sum shall be paid to the Liquidator in part discharge of the purchase money payable to him by the Purchaser under the said agreement and that the Liquidator shall join herein in manner hereinafter appearing".

    The emphasis of certain words in these two recitals is my own. I will return to their significance later.

  14. Clause 1 of the conveyance records (i) the payment of the purchase price (£22,000) by the Sub-Purchaser to the Liquidator by direction of the Purchaser, and (ii) the conveyance by the Company acting by the Liquidator in exercise of its power of sale, and the conveyance and confirmation by "the Purchaser as Beneficial Owner", of the property described in the First Schedule (that is, 28 Redwalls Meadow) to the Sub-Purchaser.
  15. Clauses 2, 3 and 4 then provide:
  16. "2. FOR the benefit and protection of the remainder of the Purchaser's Redwalls Meadow Estate and with the intent so that this covenant shall run with and bind the land hereby conveyed into whosesoever hands the same shall come but so that the Sub-Purchaser shall not be personally liable for any breach thereof committed after he has parted with all interest in the property hereby conveyed the Sub-Purchaser hereby covenants with the Purchaser that he the Sub-Purchaser and his successors in title will at all times hereafter observe and perform the restrictions and conditions set out in the Second Schedule hereto
    3. THE free right is reserved to the Purchaser and its successors in title to vary or alter any scheme for laying out the Estate of which the piece of land hereby conveyed forms part and also to vary or alter or release in whole or in part the buildings and other restrictions and conditions to such an extent and in such manner as it may be deemed fit
    4. IT IS HEREBY AGREED AND DECLARED as follows:
    (a) That so far as concerns the Sub-Purchaser and his successors in title there shall be no obligation upon the Purchaser or its successors in title to observe impose enforce or effectuate against the purchaser or occupiers of other parts of the said Estate the restrictions and conditions hereinbefore mentioned or any other restrictions or conditions and the Sub-Purchaser shall not have any rights to require the Purchaser its successors in title or any other party to enforce the restrictions or conditions contained in the Second Schedule hereto or in any other instrument or deed affecting or concerning the Estate of the Purchaser or the Company
    (b) The Sub-Purchaser and his successors in title shall not be entitled to any express or implied equity or right whether of light or air or any other easement or right (except as hereinafter specifically granted in the First Schedule hereto) over or in respect of any adjoining or adjacent lands of the Purchaser which may in any wise restrict or interfere with the free use of any adjoining or adjacent lands of the Purchaser for building or any other purpose"

    Once again, the emphasis given to certain words in these clauses is my own.

  17. I should also mention clause 6, a fairly standard form of acknowledgment by the Company of the right of the Sub-Purchaser to production and delivery of copies of certain documents of title held by the Company and listed in the Third Schedule. This engages the obligations contained in section 64 of the Law of Property Act 1925, and has the effects there set out. The two documents listed in the Third Schedule were both dated 7 July 1972. They were described as (i) a conveyance between two individuals (Stevens and Skilback) and Thurway Properties Ltd, and (ii) a legal charge between Thurway Properties Ltd, three individuals (all called Mitchell) and a further company, and London and County Securities Ltd under its former name. It is thus clear that, at that date, those documents were in the possession of the Company. These documents would have formed part of the (then unregistered) title to the land conveyed. But, as they related to land other than no 28, it would not have been sensible to hand them over to the purchaser of that land alone.
  18. The Second Schedule contains the substance of the covenants given by the Sub-Purchaser in five numbered paragraphs. The first four concern (1) contribution to the expense of maintaining and repairing certain drains, gutters and pipes, (2) maintaining and keeping in repair certain fences, (3) observing and performing any conditions imposed by the planning permissions in force in respect of the property conveyed, and (4) not erecting any fences or walls along the front boundary of the property and parts of the side boundaries. The final paragraph reads as follows:
  19. "5. Not to erect any buildings of any kind upon the land hatched green on
    the plan annexed hereto and to lay out the same with trees/shrubs".
  20. The relevant part of the plan annexed to the conveyance is shown below. No 28 is at the top, with the house on the left-hand side and the hatching (not coloured in the copy I have seen) covering the greater portion of the property to the right. About half of the hatched area (and a small part of the unhatched) constitutes the part of the land now owned by the second claimant. No 21 is the property at the bottom of the plan, and the other properties are in numerical order between them. It will be noted that this plan shows all eight plots on Redwalls Meadow, and, moreover, the outline of a building on each plot (there being four different outlines used, each outline being repeated once). I will return to the significance of this later.
  21. The later conveyances

  22. The second conveyance to be executed on a sale of another of the plots of land was that relating to no 24. This was executed on 19 September 1977, so just over six weeks later. Unlike the conveyance of 5 August 1977, the mortgage company and its liquidator were not parties to this document. Instead, the only parties were the builders Chantreys (called "the Vendor") and a Mr and Mrs Marsh (called "the Purchasers").
  23. Clause 1 contained a straightforward conveyance of no 24 by Chantreys to Mr and Mrs Marsh. But clauses 2, 3 and 4 and the terms of the Second Schedule were the same as in the conveyance of no 28 dated 5 August 1977. The hatched areas on the plans attached (being the areas covered by the covenant not to erect another building) cover a strip of land at the foot of each house's rear garden. The conveyance of 19 September 1977 is also the pattern for all the subsequent Redwalls Meadow conveyances from Chantreys to purchasers that I have seen, namely, those for nos 21, 23, 26 and 27. I have not seen the conveyances for nos 22 and 25. I have however seen copies of the registered titles for all of the properties, and these do refer (in the charges register) to the dates of the original conveyances concerned, each of which, the register says, "contains restrictive covenants". Moreover, the title register for no 25 (unlike the title registers for the other properties) in the charges register actually sets out the terms of the covenants, which are in the same form as clauses 2, 3 and 4 and the Second Schedule of the conveyances of the other properties which I have seen.
  24. From 1974, Dartmouth formed part of the district of South Hams in Devon. South Hams became an area of compulsory registration of land on sale on 1 July 1978, by virtue of the Registration of Title Order 1977, SI 1977 No 828, art 2(b). The dates of conveyances and first registration of the eight properties can be set out in tabular form as follows:
  25. Number Date of conveyance Date of first registration
    21 9 October 1979 9 November 1979
    22 29 November 1977 31 August 1999
    23 24 June 1978 27 November 1978
    24 19 September 1977 26 June 1986
    25 7 April 1978 3 May 1978
    26 21 September 1978 18 October 1978
    27 14 March 1978 10 May 1978
    28 5 August 1977 28 April 2020

  26. First registration would not take place until the first sale of the land after the area it is in became an area of compulsory registration, ie 1 July 1978. Nos 21 and 26 were sold by Chantreys after that date, and therefore had to be registered within two months of the conveyance, or else it would be void, by virtue of section 123(1) of the Land Registration Act 1925. Both titles however were registered within that period. The remainder were sold by Chantreys before that date, and therefore were unaffected by section 123 at that time. They were first registered after the properties were sold again, to subsequent purchasers. In the case of no 22, for example, this was more than 20 years later. Nevertheless, in each case, the registered title notes the existence of restrictive covenants in the conveyance (and in the case of no 25 sets them out). Thus, the first claimant would have had notice of them when Mrs Peacham sold no 28 to it in 2020.
  27. One further interesting common feature of the conveyances other than that for no 28 is that they contain no clause acknowledging the right of the purchaser to the production of documents or the delivery of copies of documents of title. Instead, in each case there is a covenant by Chantreys in the following form:
  28. "6. THE Vendor hereby covenants with the Purchasers that as and when the documents set out in the Third Schedule hereto shall come into the possession of the Vendor or the persons deriving title under it the Vendor will when requested and at the cost of the Purchasers or their successors in title execute a statutory acknowledgment of the production and undertaking for the safe custody of the said documents and in the meantime and until the execution of such undertaking that every person having for the time being possession of the said documents will keep them safe whole uncancelled and undefaced unless prevented from so doing by fire or other inevitable accident".
  29. In the conveyance of 19 September 1977, the Third Schedule contained four documents. The first two were the same two as were in the Third Schedule to the conveyance of 5 August 1977. I will therefore not repeat them. But six weeks before they were in the possession of the Company (the mortgagee), rather than Chantreys, and they would appear not to have moved in the meantime. The third and fourth entries read as follows:
  30. " 1977 CONVEYANCE Richard Norman Darbey Langdon (1) The Vendor (2)
    18th August 1977 MORTGAGE The Vendor (1) Twentieth Century Banking Corporation Limited (2)".
  31. The further conveyances that I have seen of other Redwalls Meadow properties are in the same terms, except that the date of the third document is given as "18th August 1977" instead of just "1977". This is of course the same date as the mortgage by Chantreys in favour of Twentieth Century Banking Corporation Limited (the same mortgagee as in the other conveyances I have seen). The last of those conveyances, dated 9 October 1979, was of no 21. It is in the same terms. What I infer from this is that, on 18 August 1977, Chantreys obtained the legal estate in fee simple to all the other plots in Redwalls Meadow (and the claimants themselves agree), and on that day charged them to Twentieth Century Banking Corporation Limited, although it did not manage to sell the last of them on until October 1979.
  32. Although I have not seen any conveyance for either of nos 22 and 25, the properties concerned are interstitial to those whose conveyances that I have seen. In my judgment it is more likely than not that Chantreys acquired legal title on the same day as the others. I further infer that this was a legal estate in fee simple absolute in possession, sufficient to satisfy the solicitors for the residential purchasers (and, in appropriate cases, their mortgagees) of the various plots, either to buy such plots or on the security of which to lend money. In my judgment it is more likely than not that the missing 1977 date in the case of the conveyance of 19 September 1977 is in fact also 18 August 1977. Certainly, it cannot be later than that, as the Third Schedule refers to a mortgage dated the same day.
  33. These further conveyances also make clear that Chantreys did not have possession of the documents of title referred to in the Third Schedule at the date of any of the conveyances referred to, that is, from 19 September 1977 to 9 October 1979. This was not explained in the evidence, or explored in argument, but I do not think anything turns on it. Initially at least, they may have been in the possession of Twentieth Century Banking Corporation Limited as Chantreys' mortgagee, and that would explain why the covenant in clause 6 is given.

    The basis of the claim

  34. The legal basis for the declaratory relief sought by the claim is set out in the claim form in this way (correcting an immaterial mistake in the paragraph numbering):
  35. "(i) pursuant to Clause 2 of the 1977 Conveyance, the Covenants were expressed to be '[f]or the benefit and protection of the remainder of the Purchaser's Redwalls Meadow Estate and with the intent so that this covenant shall run with and bind the land hereby conveyed into whomsoever hands the same shall come';
    (ii) pursuant to the Preamble to the 1977 Conveyance, the 'Purchaser' is identified as Chantreys;
    (iii) pursuant to the First Schedule to the 1977 Conveyance, the land being conveyed by the 1977 Conveyance is the Properties
    (iv) Chantreys did not own any land falling within the description 'the remainder of the Purchaser's Redwalls Meadow Estate' at the time that the 1977 Conveyance was executed and the Covenants contained therein were given;
    (v) Chantreys only acquired land falling within the description 'the remainder of the Purchaser's Redwalls Meadow Estate' on 18 August 1977;
    (vi) as Chantreys did not own the dominant tenement intended to be benefited by the Covenants at the time that they were given, the benefit of those Covenants was never annexed to any part of 'the remainder of the Purchaser's Redwalls Meadow Estate', so as to be enforceable by Chantreys or their successors-in-title; and
    (vii) in the premises, the Properties are not burdened by the Covenants and accordingly do not bind the First and Second Claimants as registered owners of the Properties."
  36. The Claim was begun under CPR Part 8 on the basis that there was unlikely to be any substantial dispute of fact. And, as I have said, the only evidence before the court was the written evidence filed and served on behalf of the claimants. At the hearing (which as I have said was held remotely, by Teams, there being no live evidence), the claimants were represented by counsel and the first to fourth defendants appeared in person. There is no evidence to show that any of the fourteen defendants took any legal advice, and I assume that none did. But the law and procedure that this court applies is the same. In our system, we do not have different rules depending on whether parties have legal representation: Barton v Wright Hassall [2018] 1 WLR 1119, SC.
  37. Facts found

  38. I have already set out the relevant parts of the conveyances in this case. The evidence in the claim includes the references, in the August 1977 conveyance, to an agreement between London and Counties Securities Ltd and Chantreys to acquire the property which became no 28 "and other properties", and the later conveyances of nos 21-27 by Chantreys to individual purchasers. The evidence of the conveyance of 5 August 1977 shows that, before that date, Chantreys had entered into a contract with London and Counties Securities Ltd to buy, not only the plot that became no 28, but also "other properties" in relation to which no conveyance had yet been made. Although the contract for the purchase of these properties is not in evidence, it is clear to me from the plan to the conveyance of 5 August 1977, and the subsequent conveyances, that those "other properties" were the plots that became nos 21-27. Moreover, the houses to be built on those plots were already taking shape in August 1977. The outlines (which are of four different shapes, each repeated once) are shown clearly on the plan to the conveyance of no 28. No 28 was sold off in August 1977, no 24 in September 1977, and no 22 in November 1977. Nos 26, 27 and 23 were sold off between March and June 1978.
  39. Together with the fact that this was a sale by a mortgagee, and not by an original beneficial owner, this evidence satisfies me that the original owner of the Redwalls Meadow Estate (Thurway Properties Ltd) had started to develop all the Redwalls Meadow properties, but had been unable to complete the project, and the mortgagee (London and Counties Securities Ltd) was left with an unfinished building project to realise. Mortgage lenders are not normally builders as well. Fortunately for the mortgagee, another builder, Chantreys, agreed to buy all the land, but could only finish and subsell one of them, no 28, by August 1977, and needed further finance from another mortgage lender to finish the rest. The money paid by Mr and Mrs Peacham to the Liquidator was stated to be paid "in part discharge of the purchase money payable to him by [Chantreys] under the said agreement". All this is a regrettably familiar picture to those who lived and worked through the 1970s property crash.
  40. In my judgment, that evidence, taken as a whole, shows that Chantreys agreed to buy the whole of an area of land known as Redwalls Meadow from the same vendor (London and County Securities Limited, selling as mortgagee, but then in voluntary liquidation, and so selling by its liquidator). It is clear that legal title to no 28 was passed to the sub-purchasers, Mr and Mrs Peacham, on 5 August 1977. Mrs Peacham survived her husband, and took the whole legal estate by survivorship. She sold her land to one of the claimants in 2020, who conveyed the part subject to the restrictive covenant to the other claimant. However, from the conveyancing documents that I have seen and recited above, I find that Chantreys acquired legal title to all the plots, other than no 28, only on 18 August 1977.
  41. Thus, immediately prior to the conveyance of 5 August 1977, Chantreys had no legal estate in any, let alone the remainder, of the land it had contracted to buy. Nevertheless, the Redwalls Meadow Estate was an identifiable piece of land, referred to in all the conveyances as Chantreys' "Redwalls Meadow Estate" and "the Estate of which the piece of land hereby conveyed forms part". There are also references to "any adjoining or adjacent lands of the Purchaser". It was the land owned by Thurway Properties Ltd, charged by it to London and Counties Securities Ltd, and then sold by the latter as mortgagee to Chantreys. On the other hand, as I explain later, Chantreys had an equitable interest in the whole of this land, because it had contracted to buy it (and this explains why it was described as the "Beneficial Owner" of no 28 in the conveyance of 5 August 1977).
  42. On 11 March 2024, the claimant's solicitors wrote a five-page letter to Chantreys, setting out their case (as subsequently issued) for a declaration that no person had the benefit of the covenant in the conveyance of 5 August 1977. This included the following paragraphs:
  43. "14. In an email from Chantreys' director Adrian Channing dated 29 September 2020, responding to a letter from us asking for a copy of any conveyance of the 'Purchaser's Redwalls Meadow Estate' to Chantreys … This he told us that he understood its records from the relevant time, presumably including property deeds, have been destroyed.
    [ … ]
    16. … before issuing the present claim, we would like to clarify the position of Chantreys … and ask that it please address the following questions:
    i. What, if any, land identifiable as 'the remainder of the Purchaser's Redwalls Estate' did Chantreys own at the date of the Conveyance of 5 August 1977?
    ii. What, if any, of such land does Chantreys own now?
    iii. As such, does Chantreys claim the right to enforce the Covenant, or not? If so, on what basis does it do so, and under what instrument(s) does it claim such right?
    Please provide us with copies or details of any documentation or other information relevant to these questions which Chantreys may still hold, or confirmation that it does not hold them.
    If Chantreys does not assert a right to enforce the Covenant, then we ask for confirmation of its consent or non-objection to our proposed claim for the declaration mentioned above … "
  44. On 9 April 2024 an email was sent to the claimant's solicitors apparently on behalf of Chantreys. The body of the email was as follows:
  45. "Following your correspondence to Chantreys Building Company Ltd regarding the covenant attached to the conveyance for the sale of the above in 1977 Chantreys does not intend to assert a right to enforce the covenant you refer to. For your information I am attaching a transcript of what I believe to be the original planning consent relating to the properties on Redwalls Meadow showing the requirements to establish tree and shrub planting on the areas hatched green."
  46. Although this email by no means answers all the questions asked by the claimant's solicitors, it makes clear that Chantreys does not seek to enforce the covenant which Mr and Mrs Peacham entered into with it in 1977. By attaching a copy of a particular document, the writer implies that there are no other relevant documents available.
  47. The law of freehold restrictive covenants

  48. In the present case none of the parties is an original party to the conveyance of 5 August 1977, nor an original party to any of the subsequent conveyances by Chantreys. That means that I have to consider two important aspects of the (rather complex) law of restrictive covenants in relation to freehold land. One is whether the current owners of no 28 are bound by the covenant entered into by their predecessors in title, Mr and Mrs Peacham. The other is whether the current owners of nos 21-27 are entitled to rely on the covenant entered into by Mr and Mrs Peacham with their predecessor in title, namely Chantreys. These are the questions (i) how far the burden of the covenant in question runs with the land so as to bind the current owners, and (ii) how far the benefit of that covenant has passed to the defendants (or any of them).
  49. In Whitgift Homes Ltd v Stocks [2001] EWCA Civ 1732, [12], Jonathan Parker LJ (with whom Judge LJ and Bodey J agreed) approved the following statement by the judge at first instance (Neuberger J, as he then was) as an accurate statement of the relevant principles:
  50. "(1) For a subsequent purchaser of the land subject to the covenant to be bound by the covenant there are three requirements: (a) the covenant must be negative in nature; (b) the covenant must be either (i) for the protection of land retained by the covenantee or (ii) part of a scheme; and (c) the subsequent purchaser must have notice of the covenant.
    (2) For a subsequent purchaser of other land to be able to enforce the covenant there are also three requirements: (a) the covenant must, to use the old expression, touch and concern his land; (b) the [benefit of the] covenants must have passed to him by (i) annexation (ii) assignment or (iii) pursuant to a scheme; and (c) there must be no good ground for depriving him of the right to enforce the covenant."
  51. In Marquess of Zetland v Driver [1939] Ch 1, the Court of Appeal said (at 8):
  52. "[Restrictive] covenants [for the benefit of other land of the vendor] can only be validly imposed if they comply with certain conditions. Firstly, they must be negative covenants. No affirmative covenant requiring the expenditure of money or the doing of some act can ever be made to run with the land. Secondly, the covenant must be one that touches or concerns the land, by which is meant that it must be imposed for the benefit or to enhance the value of the land retained by the vendor or some part of it, and no such covenant can ever be imposed if the sale comprises the whole of the vendor's land. Further, the land retained by the vendor must be such as to be capable of being benefited by the covenant at the time when it is imposed. Thirdly, the land which is intended to be benefited must be so defined as to be easily ascertainable, and the fact that the covenant is imposed for the benefit of that particular land should be stated in the conveyance and the persons or the class of persons entitled to enforce it. The fact that the benefit of the covenant is not intended to pass to all persons into whose hands the unsold land may come is not objectionable so long as the class of persons intended to have the benefit of the covenant is clearly defined. Finally, it must be remembered that these covenants can only be enforced so long as the covenantee or his successor in title retains some part of the land for the benefit of which the covenant was imposed." (Emphasis supplied.)

    Although this passage covers much the same ground as the later statement in Whitgift Homes, it does not distinguish so clearly between the transmission of the burden and the transmission of the benefit. The passage in italics is concerned with the annexation of the benefit of the covenant to the benefited land, ie the transmission of the benefit.

  53. In Crest Nicolson Residential (South) Ltd v McAlister [2004] EWCA Civ 410, Chadwick LJ (with whom Auld and Arden LJJ agreed) held (at [33]) that Marquess of Zetland was still good law in requiring the land to be benefited to be "easily ascertainable" in order for the benefit to be annexed to the land. He went on:
  54. "34. … It is obviously desirable that a purchaser of land burdened with a restrictive covenant should be able not only to ascertain, by inspection of the entries on the relevant register, that the land is so burdened, but also to ascertain the land for which the benefit of the covenant was taken – so that he can identify who can enforce the covenant. That latter object is achieved if the land which is intended to be benefited is defined in the instrument so as to be easily ascertainable. To require a purchaser of land burdened with a restrictive covenant, but where the land for the benefit of which the covenant was taken is not described in the instrument, to make enquiries as to what (if any) land the original covenantee retained at the time of the conveyance and what (if any) of that retained land the covenant did, or might have, 'touched and concerned' would be oppressive. It must be kept in mind that (as in the present case) the time at which the enforceability of the covenant becomes an issue may be long after the date of the instrument by which it was imposed."
  55. In relation to the first question set out by Neuberger J in Whitgift Homes, there is no doubt that the covenant is negative in nature, and that the claimants had notice of the covenant (because it was entered in the charges register of the registered title before they acquired their interests). The point at issue is whether the covenant was for the protection of land retained by the covenantee or part of a building scheme. Assuming that the defendants succeed on the first question, then, in relation to the second question, there is no doubt that the covenant does "touch and concern" the other land (ie all or some of nos 21-27), and it was not argued that there was any good ground for depriving the current owners of nos 21-27 of the right to enforce the covenant. The point at issue here is whether the land to be benefited was "easily ascertainable", so as to have the benefit annexed to it, and thus passed to the owners of nos 21-27 by annexation.
  56. Arguments

    Did Chantreys have a sufficient interest in other land?

  57. For a restrictive covenant to burden particular land, it is necessary that it be entered into "for the protection of land retained by the covenantee". Mr Fuller, for the claimants, submitted that there was no evidence to suggest that Chantreys owned any land at Redwalls Meadow on 5 August 1977. Instead, the evidence was that Chantreys acquired such land only on 18 August 1977. Accordingly, the covenants in the conveyance of 5 August 1977 could only be enforceable between the original contracting parties, as a matter of contract. Although the first to fourth defendants all addressed me, none of them is a lawyer, and they were in effect unable to contribute significantly to the debate.
  58. On the evidence, I agree that Chantreys had no legal estate in any of the plots that became nos 21-27 Redwalls Meadow until 18 August 1977. But that does not conclude the matter. I have also found as a fact that, before the conveyance of 5 August 1977, Chantreys entered into a contract with London and County Securities Ltd to purchase all the plots which became nos 21-28 Redwalls Meadow. According to the doctrine of Shaw v Foster (1872) LR 5 HL 321, followed in many cases since, the Company thereupon became a constructive trustee for Chantreys of those plots.
  59. Of course, the trusteeship involved in such a case is of a rather special character, involving regard being had (inter alia) to the vendor's own financial interests: see eg Jerome v Kelly [2004] 1 WLR 1409, [32]. And the constructive trust arises from what equity considers ought to be done, and not the other way round. So, as Patten LJ (with whom Henderson and Rose LJJ agreed) put it in Ezair v Conn [2020] EWCA Civ 687, [47]:
  60. "The relationship is described in some of the judgments as a bare trust but it is clear that it exists as an incident of the contractual relationship and is no more than a consequence of the principle that equity treats as done that which ought to be done. It is therefore dependent upon the contract remaining specifically enforceable … "
  61. Nonetheless, Chantreys had an equitable interest in other land adjacent to no 28 at the time of the conveyance of 5 August 1977. The question is whether this is sufficient to satisfy the requirements of the law of restrictive covenants. In the well-known case of Rogers v Hosegood [1900] 2 Ch 388, the owners of certain building land had mortgaged it, by way of conveyance of the legal estate, retaining only the equity of redemption. This was the common method of creating a legal mortgage before 1926. Subsequently, the owners of that land (though in law now only the owners of the equity of redemption) conveyed a plot of the land to a purchaser, and the mortgagee joined in the conveyance. The purchaser entered into a covenant with the mortgagors, though not with the mortgagee, restricting the number of dwellings that could be built on the land, for the benefit of the mortgagors' retained land. The mortgagors later conveyed another plot of the retained land to a third party who did not know about the covenant entered into by the purchaser of the first plot. The Court of Appeal held that the assigns of the second plot could enforce the restrictive covenant against the assigns of the first plot.
  62. Collins LJ, delivering the judgment of the court said (at 404):
  63. "A difficulty, however, in giving effect to this view arises from the fact that the covenants in question in the deeds of May and July, 1869, were made with the mortgagors only, and therefore in contemplation of law were made with strangers to the land: Webb v. Bussell (1), to which, therefore, the benefit did not become annexed. That a court of equity, however, would not regard such an objection as defeating the intention of the parties to the covenant is clear; and, therefore, when the covenant was clearly made for the benefit of certain land with a person who in the contemplation of such a court was the true owner of it, it would be regarded as annexed to. and running with that land, just as it would have been at law but for the technical difficulty."
  64. Again, in Re Rutherford's Conveyance [1938] Ch 396, a similar point arose, although this time the equitable interest of the covenantee arose in the same way as in the present case, namely by virtue of a contract of sale. In April 1920 R agreed to sell certain land to D, possession being given in June 1920 after payment of a substantial deposit, but completion and balance to be paid in June 1925. In fact, the balance was not paid, and completion did not take place at that time. In July 1925, D agreed to sell part of the land (of which he was not yet the legal owner) to G, and this agreement purported to impose certain restrictive covenants on G for the benefit of D's remaining land. In November 1925, that second contract was completed by a conveyance by D to G, to which R was also a party. G did not execute the conveyance. On the same day, the contract between R and D was finally completed, and R conveyed the legal estate in the remainder of the land to D. In July 1927, D conveyed his land to B1. In November 1935 B1 conveyed the same land to B2.
  65. In the proceedings, brought by G under section 84 of the 1925 Act, G sought a declaration that B2 could not enforce the restrictive covenants contained in the agreement of July 1925. Simonds J granted the declaration, on the basis that G had never entered into any such covenants, and the equitable obligations which rested upon him in respect of the land conveyed were not such covenants the benefit of which D could assign to a successor in title. However, the judge must have assumed that D, although not the owner of a legal estate of the land, but merely the purchaser under a contract, had a sufficient interest in the land to support the annexation of the benefit of any such restrictive covenant as there might be, even though the argument failed on the facts.
  66. In the light of these decisions, in my judgment, at the time of the conveyance of 5 August 1977, Chantreys' beneficial interest in the other plots, namely nos 21-27, was a sufficient interest in other, adjacent land to support the imposition of the burden of the restrictive covenant on no 28. The question therefore is whether the covenant was for the protection of that land retained by the covenantee. There are two parts to this question. The first is subjective, the intention of the parties. The second is objective, whether the covenant was capable of protecting and benefiting the land. But Mr Fuller's argument on behalf of the claimants was that Chantreys had no sufficient interest in other land at all. So, he did not deal with this point. I must therefore do so.
  67. As to intention, clause 2 of the conveyance of 5 August 1977, begins with these words:
  68. "2. FOR the benefit and protection of the remainder of the Purchaser's Redwalls Meadow Estate and with the intent so that this covenant shall run with and bind the land hereby conveyed into whosesoever hands the same shall come … "

    Whether the expression "the Purchaser's Redwalls Meadow Estate" can be equated with the properties which have become nos 21-27 Redwalls Meadow is a question with which I will have to deal shortly. For the sake of this part of the argument I will assume that it can. On that basis, it is clear that the parties' intention was to benefit and protect the other properties.

  69. As to capability, in Marten v Flight Refuelling Ltd [1962] Ch 115, Wilberforce J said (at 136):
  70. "Was the land capable of being benefited by the covenant? On this point … the answer would appear to be simple. If an owner of land, on selling part of it, thinks fit to impose a restriction on user, and the restriction was imposed for the purpose of benefiting the land retained, the court would normally assume that it is capable of doing so. There might, of course, be exceptional cases where the covenant was on the face of it taken capriciously or not bona fide, but a covenant taken by the owner of an agricultural estate not to use a sold-off portion for other than agricultural purposes could hardly fall within either of these categories."
  71. Accordingly, there is a rebuttable presumption that the covenant is capable of benefiting that land. In my judgment, a covenant not to build part on a plot holding a single residential property is certainly capable of benefiting and protecting adjacent or nearby residential properties which are part of the same development. The same is equally true of the other covenants contained in paragraphs 124 of the Second Schedule. They are typical of the kind of covenants that may be imposed on residential owners of properties in the same residential development, in order to conserve the look and the quality of the properties themselves. The requirement is accordingly satisfied here.
  72. I add only that Chantreys' equitable interest in the plots which became 21-27 Redwalls Meadow has a second role, in enabling the benefit of the covenant to be annexed to it, as the covenantee's land. But this brings me to Mr Fuller's second argument, to which I now turn.
  73. Was the land to be benefited "easily ascertainable"?

  74. The second question is whether the land to be benefited was "easily ascertainable", so as to have the benefit annexed to it, and thus passed to the owners of nos 21-27 by annexation. For this purpose, and despite some of the language used by judges in some authorities, what is "ascertainable" is not restricted to what is contained in the covenant deed. Extrinsic evidence may be taken into account. On the other hand, the burden on the purchaser of land must not become oppressive. If the land is not sufficiently described in the covenant deed, it is not right to require the purchaser to make its own enquiries as to what (if any) land the original covenantee retained at the time of the conveyance and what (if any) of that retained land the covenant did "touch and concern", or might have done so: Crest Nicolson Residential (South) Ltd v McAlister [2004] EWCA Civ 410, [34].
  75. Mr Fuller submitted that the land was not easily ascertainable. In particular, he submitted that there was no way of ascertaining what "the Purchaser's Redwalls Meadow Estate" meant from the covenant deed. Once again the first to fourth defendants were unable to make any significant contribution to the debate, though the fourth defendant did make the point that the benefit of the covenants was part of what they thought they were purchasing, and they did not find it hard to determine what was the Redwalls Meadow Estate
  76. In the present case, we have the reference in clause 2 of the conveyance of 5 August 1977 to "the Purchaser's Redwalls Meadow Estate", in clause 3 to "the Estate of which the piece of land hereby conveyed forms part", in clause 4(a) to "the purchaser or occupiers of other parts of the said Estate", and in clause 4(b) to "any adjoining or adjacent lands of the Purchaser". The plan annexed to the conveyance is a plan which shows, not only the property being conveyed (ie no 28), but also the seven other properties which became nos 21-27, together with an outline of the houses presumably still in the course of construction on them.
  77. In my judgment, any property lawyer reading this conveyance would immediately understand the reference to "the Purchaser's Redwalls Meadow Estate" to be a reference to the properties now known as nos 21-28 Redwalls Meadow. It might well be oppressive to require a purchaser to check to see if there were other properties in the vicinity in which Chantreys had an interest, but that is not what I am testing. As Harman J once said, in a completely different context:
  78. "There being no uncertainty in that sense, I am reluctant to introduce a notion of uncertainty in the other sense, by saying that the trustees must worry their heads to survey the world from China to Peru, when there are perfectly good objects of the class in England": Re Gestetner Settlement [1953] Ch 672 688-689.
  79. Accordingly, in my judgment the land to be benefited was indeed "easily ascertainable". That being the case, in my judgment the covenants contained in clause 2 of and the Second Schedule to the conveyance of 5 August 1977 are enforceable against the claimants. It is therefore not necessary for me to go on to consider whether those covenants might be enforceable by virtue of a building scheme. I do not therefore have to consider (amongst other things) the significance of clause 3 in each of the conveyances, reserving the right to Chantreys to vary "any scheme for laying out the Estate of which the piece of land hereby conveyed forms part" (see Elliston v Reacher [1908] 2 Ch 374, 389; [1908] 2 Ch 665, 674; Re Wembley Park Estate Co Ltd's Transfer [1968] Ch 491).
  80. Conclusion

  81. In the result, the question does not arise as to the granting of a declaration of non-enforceability. However, the claimants have by their counsel Mr Fuller asked that, if the court considers that the covenants are enforceable, it should declare who is entitled to enforce them. In particular, Mr Fuller pointed out that the only owners of properties in Redwalls Meadow who have taken any effective part in these proceedings are those of nos 21 and 22, which are the furthest away in distance from no 28. That is true, but this is a row of eight houses, the only houses in a cul-de-sac. It can take only a minute or so to walk from one end of the row to the other. In my judgment, the owner or owners of each house in the row is entitled to enforce these covenants. As requested, I will grant a declaration to that effect. I should be grateful if the parties could agree a minute of order to give effect to this judgment.

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