England and Wales Lands Tribunal

 


Oke v No Respondent [2006] EWLands LP_67_2005 (26 June 2006)

LP/67/2005

LANDS TRIBUNAL ACT 1949

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

B Y MRS JEAN AUDREY OKE

Re: Property situate at Great Stone,

Cuddington, Aylesbury

Buckinghamshire

Before: The President

Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL

on 26 June 2006

J M Warbey, solicitor, of Horwood & James of Aylesbury for the applicant

Oliver Radley-Gardner instructed by Lovells for Mr Alan Hughes, objector

Mr Chris Muldoon, objector, in person

Mr Kenneth Birkby, Chairman of Cuddington Parish Council, for Cuddington Parish Council, objectors

The following cases are referred to in this decision:

Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 WLR 1025

Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250

Beswick v Beswick [1968] AC 58

White v Bijou Mansions Ltd [1937] Ch 610

Re Shaw's Application (1994) 68 P & CR 591

DECISION ON ADMISSION OF OBJECTORS

1. The applicant in this case seeks the discharge of a covenant affecting land owned by her at Great Stone House, Cuddington, near Aylesbury, Buckinghamshire. The covenant was contained in a conveyance of 13 February 1930 between Francis Tyringham Higgins Bernard and Frank Mortimer and is in these terms:

"to the benefit of the Vendor and his Successors in title owners and occupiers of the land now belonging to the Vendor adjacent to the property hereby conveyed and to preserve the amenities of the Village of Cuddington the Purchaser hereby covenants with the Vendor that the Purchaser and the persons deriving title under him will not at any time hereafter erect or permit to be erected any building or hoarding on the property described in Part II of [the schedule to the conveyance]".

The property so described is a field, shown on the plan to be 2.606 acres in area, known as "Kingham's Close".

2. Notice of the application was given in accordance with the directions of the Registrar by service on the owners of a number of houses adjacent to the application land and by exhibition of a public notice on the land. Six objections were made, of which three have been withdrawn. The applicant does not accept that any of the three outstanding objectors are entitled to the benefit of the restriction, and the question is whether each or any of them should be admitted.
3. For Mr Hughes, Mr Oliver Radley-Gardner accepts that Mr Hughes's land did not belong to the vendor at the time of the 1930 conveyance, so that he cannot claim to be entitled as successor in title to the vendor. But, he says, the covenant has two limbs to it in terms of the benefit it conveys – one conferring benefit on the vendor and his successors in title and the other having as its purpose the preservation of the amenities of the village of Cuddington – and Mr Hughes is able to take the benefit of the restriction under the second limb by virtue of section 56(1) of the Law of Property Act 1925. That section provides as follows:

"(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument."

4. On the scope of section 56(1) Mr Radley-Gardner helpfully refers to Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 WLR 1025, a decision of Neuberger J, in which a headlessor sought to recover the costs of repairs to the demised premises from the subtenant under covenants in an underlease. The judge held that section 56(1) was of no assistance to the plaintiff. He noted at 1029 the view of Denning LJ in Drive Yourself Hire Co (London) Ltd v Strutt [1954] 1 QB 250 at 274 that section 56:

"[left] the courts free, in case respecting property, to go back to the old common law, whereby a third party can sue on a contract made expressly for his benefit; and rid also of the old rule about deeds inter partes."

5. The judge said that he considered that that view could not stand in the light of the reasoning of the House of Lords in Beswick v Beswick [1968] AC 58, in which at 105G Lord Upjohn had cited with approval the view of Simonds J in White v Bijou Mansions Ltd [1937] Ch 610 at 625:

"under section 56 .... only that person can call it in aid who, although not named as a party to the conveyance or other instrument, is yet a person to whom that conveyance or other instrument purports to grant some thing or with which some agreement or covenant is purported to be made."

6. At 1032, after disapproving the reasoning of the Lands Tribunal (Judge Marder QC, President) in Re Shaw's Application (1994) 68 P & CR 591, Neuberger J said that he considered that the ambit of section 56 was accurately summarised in Megarry and Wade at p 763:

"the true aim of section 56 seems to be not to allow the third party to sue on a contract merely because it is made for his benefit; the contract must purport to be made with him. Just as, under the first part of the section, a person cannot benefit by a conveyance unless it purports to be made to him (as grantee), so he cannot benefit by a covenant which does not purport to be made with him (as covenantee)."

7. Mr Radley-Gardner contends that, in stating that it was one of the objectives of the restriction "to preserve the amenities of the Village of Cuddington", the covenant had the effect of conferring the benefit on all people owning land in the village of Cuddington at the time of the conveyance. The geographical limits of the village at that date would be ascertainable, so that the class to be benefited was sufficiently defined.
8. I cannot accept these contentions. Although the restriction had in terms a twofold purpose – to protect the vendor and his successors in relation to his adjacent land and to preserve the amenities of the village – the covenant was made with the vendor and with no one else. The vendor was concerned to protect the amenities of the village, but this purpose was effected by a covenant which was made in his favour and which he could enforce. The contract did not (to use the words of Megarry and Wade) purport to be made with all those owing land in the village of Cuddington – whether or not such an area could be defined – and accordingly Mr Hughes cannot claim the benefit of the covenant on this basis.
9. Mr Muldoon for his part accepts that he is unable to show that he is a successor in title to the vendor of land that was adjacent to the application land and was in the ownership of the vendor at the time of the 1930 conveyance. While he is concerned to be able to show that the covenant benefited the village and still does so, he is not entitled to be admitted.
10. For the Parish Council Mr Birkby says that the council see themselves as representing the villagers and place reliance on the limb of the covenant that seeks to preserve the amenities of Cuddington. He does not suggest, however, that the council are entitled to object as owners, in succession to the vendor, of land that was adjacent to the application land and was in the ownership of the vendor at the time of the conveyance.
11. Accordingly I determine that neither Mr Hughes nor Mr Muldoon nor the Parish Council are to be admitted as objectors.

26 June 2006

George Bartlett QC, President