Jersey Unreported Judgments

[2009]JRC009

royal court

(Samedi Division)

13th JanuaryNovember 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Bullen and Le Cornu

 

Advocate N. S. H. Benest for the Plaintiff.

Advocate R. A. Falle and S. J. Young for the Defendants.

judgment

the commissioner

1.        On 18^th December 2008, the Court refused the plaintiff's application for an immediate interim injunction restraining building works to the south of its property and we now set out our reasons.

Background

2.        Appended to this judgment is the site plan produced by Miss Benest for the plaintiff.  The plaintiff is the owner of the property known as La Petite Croatie (formerly "La Baugerie"), 2 Pigneaux Farm, Princes Tower Road, St Saviour, Jersey to which property it has right by deed of acquisition passed before the Royal Court on 8^th September 2006. We will refer to this as "2 Pigneaux Farm" or "Number 2".

3.        The defendants are the owners of Pigneaux House and the land to the south and east of 2 Pigneaux Farm, to which land they have a right by deed of acquisition passed before the Royal Court on 3^rd May 2000.  Upon that land, and as shown in the attached plan, there is a derelict granite structure and adjacent corrugated zinc barn forming an "L" shape which is the subject matter of these proceedings.  We will refer to them as "the cottage" and the land surrounding them as "the land".

4.        The plaintiff has the benefit of a restrictive covenant which is in the following terms:-

"QU'IL ne pourra jamais être établi, érigé ou construire sur ladite terre que se réserve ladite Société Venderesse au Sud de ladite propriété présentement vendue aucune chose quelconque sauf avec le consentement par écrit de ladite Acquéreuse.  Etant entendu que cette restriction ne s'appliquera pas au droit de ladite Société Venderesse d'enclore ladite terre sur lesdites lignes de démarcation du Sud et de l'Ouest de ladite propriété présentement vendue comme est ci-dessus décrit » (sic)

We will refer to this as "the restrictive covenant ".

5.        The defendants have commenced building works on the cottage involving the rebuilding of the derelict cottage and the erection of an extension on its southern end in order to provide a two bedroom dwelling and this in accordance with plans approved by the Planning Department. 

6.         It is the plaintiff's contention that the restrictive covenant extends to and includes the cottage and it therefore issued proceedings by Order of Justice dated 8^th December 2008 seeking a permanent injunction preventing the defendants from establishing erecting or constructing anything on the land to the south of 2 Pigneaux Farm and reinstating the same to its prior condition.

7.        We sat on the afternoon of 10^th December 2008 to hear the plaintiff's application for an immediate interim injunction and reserved our decision. It is relevant to make it clear that the decision we announced on 18^th December 2008 and which is the subject of this judgment, was for the purposes of deciding whether or not to impose an immediate interim injunction and does not constitute a final determination of any of the issues raised in the Order of Justice. 

Legal Test

8.        In Milner v Milner Laboratories Limited [2000] JLR 266, it was held that the appropriate tests when considering whether to impose interlocutory injunctions were as follows:-

"(a)     had the plaintiff shown on the evidence that there was a serious question to be tried?  If not, then no injunction was granted;

(b)       if there was, the court considered whether damages awarded at the trial would have been an adequate remedy for the plaintiff.  If so, then no injunction was granted;

(c)       if not, the court went on to consider if damages would have been an adequate remedy for the defendant.  If so, then an injunction was normally granted;

(d)       if not, the court went on to consider which party would have suffered more uncompensatable damage from the grant or refusal of the injunction; and

(e)       if the balance of convenience was fairly even, then it was prudent to seek to preserve the status quo, although if one party had a disproportionately stronger substantive case, this might have swung the balance."

9.        The Court decided that the plaintiff had failed to surmount the first hurdle of the test, namely whether it can be seriously argued that the restrictive covenant applies to the cottage and this judgment is therefore concerned with that question. 

Submissions

10.      The restrictive covenant was created by contract dated 24^th September 1993 ("the contract") between Wilbrook Investments Limited ("Wilbrook") as vendor of 2 Pigneaux Farm and Julie Louise Crane as purchaser. It was not in dispute that when the restrictive covenant was created, there existed a derelict granite structure and adjacent corrugated zinc barn on the site of the cottage which was not fit or used for human habitation.  We were informed that Wilbrook was subsequently refused planning permission to construct two units of accommodation on the site of the cottage and then became insolvent.

11.      Miss Benest referred us to the general rules of interpretation of documents set out in Blackburn v Kempson (1971) 1747, a case involving the interpretation of a servitude:-

"The object of all interpretation of a written instrument is to discover the intention of the author.  That intention must be gathered from the instrument itself;  the function of the Court, therefore, is to declare the meaning of what is written in the instrument, and not of what was intended to have been written.  Prima facie, words must be taken in their ordinary sense, but where words are susceptible to more than one meaning, assistance may be obtained from the context in which they appear, and courts will give effect to that interpretation which appears to be most consistent with the intention of the parties to the instrument."

12.      Miss Benest relied upon the wording of the restrictive covenant.  The cottage was situated on the land to the south of the 2 Pigneaux Farm.  The restriction was clear.  Nothing can be established erected or constructed on the land without her client's written consent.  No written consent had been given.  On the contrary, the defendants had been warned not to proceed.  If the restrictive covenant was not intended to cover the cottage, then this should have been the subject of an express reservation to that effect within the restrictive covenant, as there is, for example, in relation to enclosures. 

13.      On the authority of Blackburn, Miss Benest argued that in interpreting the restrictive covenant, we were confined strictly to the written instrument itself and in particular could not take into account the matrix of facts existing at the time the restrictive covenant was created.  We do not agree that we are so confined or that Blackburn is authority for that proposition. The most recent exposition on the approach to the interpretation of written instruments is that set out by Page, Commissioner, in the case of In re Internine Trust [2005] JLR 236 at page 255, which can be summarized as follows:-

(i)        The aim is to establish the presumed intention of the makers of the document from the words used.

(ii)       The words must, however, be construed against the background of the surrounding circumstances or "matrix" of facts existing at the time when the document was executed.

(iii)      The circumstances relevant and admissible for this purpose are those that must be taken to have been known to the maker at the time, or, where there are more than one, are known to the makers of or the parties to the document and include absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(iv)      Evidence of subjective intention, drafts and negotiations and other matters extrinsic to the document in question is inadmissible as is evidence of events subsequent to the making of the instrument.

(v)       The critical provisions as with all words and phrases have to be read in the context of the document as a whole.

(vi)      Words should as far as possible be given their ordinary meaning.

(vii)     This last precept may, however, have to give way if consideration of the document a whole, having regard to the principles set out above or common sense, points to a different conclusion.

14.      Miss Benest produced no authority to suggest that different rules apply to the interpretation of contracts passed before the Royal Court as opposed to other contracts or instruments.  It is clear from the extract from Blackburn cited above that the Court was concerned with the interpretation of written instruments generally and we note from the judgment that the Court in that case did have regard to the background circumstances in which the servitude with which it was concerned was created when construing its meaning (see page 1757).  In our view, there is nothing in Blackburn which is inconsistent with the approach as summarized in Internine.

15.      The plaintiff itself refers to the background of the surrounding circumstances at the time that the restrictive covenant was created by asserting in its Order of Justice (paragraph 4) that at that time there existed a derelict granite structure and adjacent corrugated zinc barn that was not fit or used for human habitation.  Having said that, the circumstances surrounding the creation of the restrictive covenant in this case can in our view be ascertained in the main from the contract as a whole.

16.       Whilst Mr Young presented the defendants' case generally, Mr Falle addressed us on the restrictive covenant. He was "agnostic" as to whether the restrictive covenant was enforceable at all bearing in mind difficulties he perceived in defining clearly the "servient tenement" but he took us through the contract from which exercise the following can be extracted:-

(i)        In 1993 a number of units at Pigneaux Farm were being developed by Wilbrook for sale.  Number 3 had been sold on 16^th July 1993 and Numbers 4, 7, and 8, together with the land to the south of Number 2 were retained by Wilbrook.

(ii)       Wilbrook was under an obligation to complete certain works for the benefit of the units being sold and the purchasers were obliged not to impede or make more difficult the development of the remaining properties retained by Wilbrook.

(iii)      Whilst the contract does not describe the precise location of Numbers 7 and 8, there seems little doubt that they were located at or near the site of the cottage.  We were shown a site plan stamped by the Planning Office and dated 6^th September 1993 showing plots 7 and 8 in the location of the cottage.  That they were so located is also clear from the other clauses in the contract to which refer below.  Miss Benest, whilst pointing out that the contract contained no definitive description of the location of Numbers 7 and 8, did not seek to argue that they were located elsewhere.

(iv)      Numbers 7 and 8 were described in the contract as properties under the ownership of Wilbrook. 

(v)       Wilbrook, as owner of Numbers 7 and 8 , was given:-

(a)       ownership in common with the owners of Numbers 2, 4 and 5 and Pigneaux House of a parking area to the west of Pigneaux House and to the south of Number 4 (shown on the attached plan);

(b)       the right to keep and maintain services under the same parking area;

(c)       the right to park cars on the same parking area;

(d)       the right to discharge sewage into temporary septic tanks established in the northern part of the land retained by Wilbrook by drains established or to be established under Numbers 2, 3, 4, 6 and Pigneaux House and the parking area, Wilbrook undertaking to connect the same to the public drains once established in the main road to the north;

(e)       the right to maintain services under Number 2.

(vi)      The following three restrictions were imposed upon Wilbrook as owner of Numbers 7 and 8, as well as on the other properties:-

(a)       The keeping of animals or birds, other than domestic pets.

(b)       Carrying on anything which by smell, smoke or noise could be a nuisance to neighbours.

(c)       The carrying on of any commerce, other than professions.

(vii)     These restrictions were expressed as not applying to the land reserved by Wilbrook and which might be sold with Numbers 7 and 8 as follows:-

"QUE pour éviter aucun doute les provisions des trois dernières clauses ne s'appliqueront pas à aucune partie de ladite terre que se réserve ladite Société Venderesse qu'elle pourrait vendre comme partie desdites propriétés portant les numéros sept et huit « Pigneaux Farm » et que les autorités compétentes a désignée comme terre pour les usages d'agriculture et d'horticulture. »

We have set this clause out in full because it demonstrates the clear distinction made by the draftsman of the contract between "desdites propriétés portent les numéros sept et huit" on the one hand and "ladite terre que se reserve ladite Société Venderesse" on the other.  We were shown the consent issued by the Department of Agriculture and Fisheries dated 31^st July 1992 which designates the land surrounding the cottage for agricultural use, but not the cottage itself or the land between the cottage and Number 2.

17.      This distinction between the properties numbered 7 and 8 and the land is consistent throughout the contract.  The first reference to "ladite terre que se réserve ladite Société Venderesse"  is contained in the opening clause of the contract as follows:-

"LEQUEL Directeur de sa libre volonté VENDIT à fin d'héritage pour et au nom de ladite Société « Wilbrook Investments Limited » et pour ses successeurs à ladite Procuratrice Dlle. Julie Louise Crane, sadite constituante et pour ses hoirs certaine maison portant le numéro DEUX « PIGNEAUX FARM » ......le tout avec .....la mitoyenneté (sans relief) des deux pierres ou devises du Sud et de l'Ouest vers la terre que se réserve ladite Société Venderesse »

The property being sold goes on to include as an "Item" the ownership in common of the parking area with the owners of Numbers 7 and 8 amongst others.

Decision

18.      We agree with Mr Falle that the following conclusions can be drawn from an examination of the contract and taking into account the background of the surrounding circumstances:-

(i)        As at the date of the contract, Wilbrook was developing for sale a number of units at Pigneaux Farm.  Number 3 had been sold. Two units, Numbers 7 and 8, were to be developed on the site of the derelict cottage, subject to planning permission.

(ii)       The contract imposed upon and reserved to the owner of Numbers 7 and 8 all of the obligations and rights required for their development and use as dwellings within this small estate of residential properties.

(iii)      The contract distinguishes between the properties Numbers 7 and 8 and the land which surrounds them.

(iv)      "Ladite terre" as referred to in the restrictive covenant does not extend to Numbers 7 and 8.

As Mr Falle submitted, construing the contract in this way brings harmony to its respective provisions and accords with common sense.  To argue that the restrictive covenant extends to Numbers 7 and 8 would mean that the developer Wilbrook, having reserved all necessary rights for their devolvement as part of this estate, had agreed to give the purchasers of Number 2 alone a complete veto over that development, a most unlikely prospect.

19.      There remains an issue as to the precise extent of the properties referred to in the contract as numbers 7 and 8 but, subject to what we say below, we were left in no doubt that on the information before us the derelict cottage and corrugated barn are not subject to the restrictive covenant.

20.      Mr Falle referred us to the presumption under Jersey law of servitudes that land is free and cited the following extract from the judgment of Southwell J A in Colesberg Hotel (1972) Limited v Alton Hotel Limited [2003] JLR 176:-

"One main feature of the Jersey law of servitudes is that there is a presumption in favour of the freedom of land from excessive burdens of servitudes.  Where servitudes derive their titre from a contract or deed, the effect of this presumption is that in interpreting the words of the contract or deed, in so far as there is any ambiguity, the ambiguous words are to be interpreted in favour of the freedom of the servient tenement".

21.      Taking that presumption into account and construing the contract under which the restrictive covenant was created against the background of the surrounding circumstances, we concluded that it was not seriously arguable that the restrictive covenant extended to the cottage and we declined therefore to impose an immediate interim injunction restraining the defendants from undertaking any further works of construction.

22.      A further issue arose, however, in that it transpired that the proposed extension on the southern end of the derelict cottage is not sited within the confines of the old corrugated barn but had been moved to the west.  By reference to the attached plan the bottom of the "L" shaded in lighter gray has been shifted to the west.  In the short time available at the hearing, we were not addressed on the precise dividing line between the cottage on the one hand and the land on the other.  It appeared to us seriously arguable however that some part of this extension may be situated on the land which is subject to the restrictive covenant.  Ordinarily, we would have been minded to impose an immediate interim injunction over that part of the extension which is being constructed on the land subject to the restrictive covenant.  However, injunctions have to be certain and as we were not able to determine the dividing line between the land and the cottage and therefore that part of the extension which is susceptible to an injunction and that part which is not, we declined to impose an immediate interim injunction over it  We placed the defendants on notice however of the risk that they took if they continued work on that part of the extension which the Court may, at a final hearing, determine is in breach of the restrictive covenant.

Authorities

Milner v Milner Laboratories Limited [2000] JLR 266.

Blackburn v Kempson (1971) 1747.

In re Internine Trust [2005] JLR 236.

Colesberg Hotel (1972) Limited v Alton Hotel Limited [2003] JLR 176.