England and Wales Lands Tribunal

Barnet London Borough Council v No Respondent [2006] EWLands LP_75_2004 (10 July 2006)

LP/75/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – entitlement to benefit – preliminary issue – whether covenant impliedly annexed to land – surrounding circumstances – held no entitlement – objectors not admitted

IN THE MATTER OF AN APPLICATION

by

BARNET LONDON BOROUGH COUNCIL

Re: Land at Claremont Road comprising

Hendon Football Club and Football Ground

Cricklewood

London NW2 1AE

Before: The President

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

on 5 July 2006

John Male QC instructed by the Borough Solicitor for the applicant

Mr Robert Goymour for himself and with the permission of the Tribunal for certain other objectors

Mr Paul Clowes for himself and with the permission of the Tribunal for certain other objectors

Mr S Smiley, objector, in person

Mr Patrick O'Brien, objector, in person

The following cases are referred to in this decision:

Smith and Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500

J Sainsbury Plc v Enfield London Borough Council [1989] 1 WLR 590

Re MCA East Ltd [2003] 1 P & CR 118

The following further cases were referred to in argument:

Shropshire County Council v Edwards (1982) 46 P & CR 270

Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594

Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410

Sugarman v Porter [2006] EWHC 331 (Ch)

DECISION ON THE ADMISSION OF OBJECTORS

1. The applicant in this case applied to the Tribunal on 26 October 2004 for the discharge or modification of a restriction contained in an indenture dated 3 November 1925 affecting land in its ownership. The land, 1.89 ha (4.67 area) in area, contains the football ground and associated buildings of Hendon Football Club. It has been leased to the club or its predecessors since November 1926. Under the indenture 57½ acres of land were conveyed by Handley Page Ltd to Hendon Urban District Council, and the restriction was imposed in relation to about 20 acres of this land. It prohibited their use "otherwise than as a Public Park or Recreation Ground or as meadow pasture or arable land under open cultivation". The applicant wishes to dispose of the application land partly for residential development in the form of flats and partly for an elderly persons residential care home and day centre.
2. At the time of their conveyance in 1925 the 57½ acres were open land, which had been farmland and was then part of Hendon (or Cricklewood) aerodrome. It was bounded on the west by a road called Midland Brent Terrace and it lay on either side of a road called Clitterhouse Lane. On the south it was bounded by the rest of the aerodrome, some 81½ acres in area, which was then also in the ownership of Handley Page Ltd. To the south of the aerodrome were the Handley Page works. Handley Page Ltd sold the 81½ acres in July 1926. On 31 January 1930 79½ of the 81½ acres were conveyed by the Golders Green Land Company Ltd, the then owners, to John Laing & Son Ltd. Laing laid out on this land, and constructed, the Golders Green Estate of some 1000 houses. Hendon UDC developed the land to the west of Clitterhouse Lane with houses, and these are now known as the Clarement Estate. With the exception of the Football Club land, the rest of the land acquired by Hendon UDC in 1925 and now in the ownership of the applicant is public open space. It is bounded to the north and east by other housing development.
3. The application gave rise to over 400 objections. The applicant did not and does not admit that any of those objecting are entitled to the benefit of the restriction. At its suggestion the objectors were placed into four categories as follows:

A. Those producing some evidence (although disputed by the applicant).

B. Those producing no evidence of title.

C. Those producing no evidence of title and living within the area of land transferred to Hendon UDC by the 1925 indenture.

D. Those living within the area of land transferred in 1925 and producing some evidence of title.

4. Under section 84(3A) of the Law of Property Act 1925 the Tribunal must give any necessary directions as to who is to be admitted as an objector. The Registrar stated in a letter of 8 February 2006 to the applicant that objectors in categories B and C, having failed to produce any evidence of title, would not be admitted. By his order of the same date he ordered that the question of the legal entitlement of the remaining 33 objectors (counting objections made by relating to a single property as one objection) should be determined at a preliminary hearing. Twenty-three of the outstanding objectors were represented, with my permission, by Mr Robert Goymour, a retired solicitor and himself one of these objectors. All these were category A objections. Mr Paul Clowes, a category D objector, appeared for himself and, with permission, for 5 other category D objectors. Mr S Smiley and Mr Patrick O'Brien, each a category D objector, represented themselves.
5. Of those that Mr Goymour represented, the great majority owned houses, as he does, on the Golders Green Estate, and he accepted that the considerations as to entitlement to the benefit of the restriction were common to all of them.
6. The covenant that created the restriction was in these terms:

"2. The Council for themselves their successors and assigns with intent to bind the hereditaments hereby assured into whosoever hands the same may come but not so as to render themselves personally liable in damages for any breach of covenant committed after they shall have parted with all interest in the premises in respect of which such breach shall occur hereby COVENANT with the Company that they the Council their successors and assigns will at all times hereafter observe and perform the restrictions stipulations and conditions and provisions contained in the Second the Third Schedule hereto"

The restriction was one of five provisions in the Second Schedule. The other provisions related to fencing the land, prohibitions on nuisance, sewage, and allotments. The Third Schedule related to land already owned by the council and contained provisions governing sewage and use of the land as a public park etc.

7. Although prior to the hearing Mr Goymour had sought to contend that he and other residents were entitled to the benefit of the covenant by reason of assignment, he did not pursue this contention at the hearing and his case as presented was on the basis of implied annexation. Mr Goymour's contention was that the covenant in clause 2 should be treated as being annexed to the land owned by Handley Page at the date of the conveyance (including, therefore, the land on which the Golders Green Estate was developed). Although there were no express words of annexation, he suggested that annexation should be implied from the surrounding circumstances. Reliance on extensive evidence was, he submitted, permissible to determine whether there was annexation, and he relied for this on Smith and Snipes hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500, where at 508 Tucker LJ said:

"As to the requirement that the deed containing the covenant must expressly identify the particular land to be benefited, no authority was cited to us and in the absence of such authority I can see no valid reason why the maxim 'Id certum est quod certum reddi potest' should not apply, so as to make admissible extrinsic evidence to prove the extent and situation of the lands of the respective land owners adjoining the Eller Brook situate between the Leeds and Liverpool Canal and the River Douglas."

At 511 Somervell LJ said:

"In Rogers v Hosegood Farwell J said: 'Covenants which run with the land must have the following characteristics: (1.) they must be made with a covenantee who has an interest in the land to which they refer; (2.) they must concern or touch the land.' Both these conditions seem to me to be satisfied. The learned judge goes on to say that in addition there must be an intention that the covenant should so run. I have already dealt with this. It is said, rightly, that the land intended to be protected must be described so as to be ascertainable with reasonable accuracy. It was submitted that it was not so described in this case. It is true that evidence outside the instrument itself would be necessary to show what were the parcels covered by the agreement. This was true of the agreement in Rogers v Hosegood, where the covenant was with named owners (a partnership) .... 'to all or any of their lands adjoining or near to the said premises.' There are many cases in which the lands to be benefited are not identified by descriptions with reference to a map or plan."

8. The extrinsic evidence of annexation that Mr Goymour relied on was as follows. Handley Page had bought 161 acres of land at Cricklewood in 1923, so that, when they sold the 57½ acres to the council in 1925, they retained about 100 acres. A plan made in November 1925 and attached to an agreement of 11 March 1927 between Hendon UDC and Middlesex CC relating to the open space land showed the land to the east of Clitterhouse Lane as playing fields, tennis courts, a bowling green and the ground of Hampstead Town Football Club. John Laing & Son Ltd bought 79½ acres of the retained land from Golders Green Land Co Ltd under a conveyance of 31 January 1930, which included in the grant:

".... the benefit (so far as now belonging to the Vendors) of the covenants contained in the Conveyance dated the 3^rd November 1925."

Laing then laid out the estate and burdened each plot with identical restrictive covenants. Every conveyance contained a habendum in these terms:

"TO HOLD the same unto the Purchaser in fee simple SUBJECT NEVERTHELESS TO AND WITH THE BENEFIT of the covenants and conditions contained in or referred to in a Conveyance dated 31 January 1930 made between the Golders Green Land Company Limited of the one part and the Vendors of the other part ...."

It was clear from this, said Mr Goymour, that Laing intended each plot to have the benefit of the 1925 covenant. Further evidence to this effect, was he said, to be found in an aerial photograph in Laing's sales brochure, which had on it the notation "Golders Green Estate 950 Palaces" and to the north "Proposed New Park".

9. Mr Goymour also produced a schedule of land values derived from the prices paid on the conveyances of the Handley Page land. This showed that the 57½ acres were sold to Hendon UDC in November 1925 at a price of £500 per acre, while the 81½ acres were sold in July 1926 at a price of £860 per acre and the 79½ acres of this sold to Laing in January were transferred at a price of £1250 per acre. That showed, Mr Goymour said, that Handley Page sold the land to the council and restricted the use of part of it as a public park etc so that the adjoining land to the south would benefit in terms of value. There was only one group of people who could benefit from the public park and that was the people living in the neighbourhood.
10. For the applicant Mr John Male QC submitted that, with the objectors' case put on the basis of implied dedication, the question was whether there was anything in the language of the 1925 conveyance, when construed in the light of surrounding circumstances, that necessitated the implication of annexation to the vendors' retained land. He referred to J Sainsbury Plc v Enfield London Borough Council [1989] 1 WLR 590 and Re MCA East Ltd [2003] 1 P&CR 118. In the former case Morritt J, having at 595H identified the first issue to be from what fact or fact might it be inferred that the intention was that the covenants should enure for the benefit of the retained land, recorded the contentions of the parties as follows:

"On the first issue, the plaintiffs contend that the intention must be manifested in the conveyance in which the covenant was contained when construed in the light of the surrounding circumstances, including any necessary implication in the conveyance from those surrounding circumstances. The defendants claim that such intention may be inferred from surrounding circumstances which fall short of those which would necessitate an implication in the conveyance itself."

The judge, having then considered the authorities relied on by the parties, concluded (at 596F) that the plaintiffs' submission was correct, and, having considered the surrounding circumstances, he concluded (at 598D):

"There are no words in the conveyance indicating any such intention, nor do I consider the surrounding circumstances necessitate any implication."

11. Mr Male submitted that the language used in the conveyance was clear. The covenant was made expressly with "the Company" and no mention was made of the retained land. This was in contrast to other provisions of the conveyance. Thus in clause 1 there was a reservation in these terms:

"Except and reserving unto the company their successors and assigns owners for the time being of any lands at present belonging to the Company adjoining or adjacent to any part of the lands hereby assured as mentioned in the First Schedule."

And there was a proviso that referred to "the Company or their assigns owners for the time being of the portion of Field 1307 not hereby conveyed or any part of the sane." Clause 3 contained the grant of a subsidiary right "unto the Company their successors or assigns".

12. There was, said Mr Male, no necessity to imply annexation. The evidence of the land values showed that Handley Page would have wanted to keep control over such development value as the burdened land might have so that it could extract further payment at a future date. There was no reason to suppose that Handley Page intended to disperse control. Moreover it appeared from the indenture that Handley Page was at the time in financial difficulties, so that the indenture provided for the proceeds of the sale to be transferred direct to their mortgagees, Barclays Bank Ltd.
13. In my judgment the terms of the covenant, both in themselves and when constructed in the light of the indenture as a whole, are clear. The covenant was made with the Company without reference to its retained land. In what appears to me to be a carefully drafted deed, this provision contrasts with the other provisions to which Mr Male drew attention, and there is a positive inference to be drawn that the intention was that the covenant should be a purely personal one, reserving the Handley Page the power of release. It would be natural for the company, selling the land for what was evidently less than dead ripe residential value, should have sought to keep to itself such development value. Thus so far from the surrounding circumstances making it necessary to infer annexation (see Sainsbury v Enfield, above) they tend, in my judgment, to suggest that the covenant was intended to be personal only.
14. The effect of this conclusion is that Mr Goymour and the other residents of the Golders Green Estate who put forward similar claims to entitlement are not entitled to object. The others whom Mr Goymour represents do not own any part of the land retained by Handley Page in 1925, so that they could have no basis for the entitlement to the benefit of the covenant in any event.
15. All the other objectors fall into category D. They own land that was within the area transferred to Hendon UDC in 1925. Mr Clowes said that the purpose of the restriction had been to benefit the residents of houses to be built in the area and that his was confirmed by resolutions of Hendon UDC and Middlesex County Council at the time. The 1925 indenture was with their little deeds. Mr O'Brien said that it was a matter of overriding public interest that the restriction should be upheld.
16. The category D objections must necessarily fail because they relate to land that was conveyed to the council in the conveyance containing the restriction. The benefit of the restriction thus never attached to any part of that land and the objectors have no claim to entitlement to it.
17. The position therefore is that none of the many objectors to this application are entitled to object and those who advanced their claim at the hearing must be excluded along with those who are already excluded under the Registrar's Order. The application will now proceed as an unopposed application.

Dated 10 July 2006

George Bartlett QC, President