Jersey Unreported Judgments

[2009]JRC090

royal court

(Samedi Division)

29^th April 2009

Before     :

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

 

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

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

judgment

the commissioner:

1.        The plaintiff seeks a permanent injunction restraining building works being carried out by the defendants to the south of its property, which it says is in breach of a restrictive covenant in its favour.

Background

2.        Appended to this Judgment is a site plan.  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.  We will refer to this as "Number 2".

3.        Number 2 has the benefit of a servitude over the land to its south, the terms of which we set out in full later.  At the hearing, it was referred to as a restrictive covenant and for convenience we will do the same.

4.        The defendants are the owners of Pigneaux House (which we will refer to as "Number 1") and by separate contract the land to the south and east of Number 2 (field 552). Upon that land, as shown in the site 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 this as "the cottage".

5.        The defendants have commenced building works 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.  The plaintiff also alleges that the defendants have established a track or road comprising hardcore and rubble leading to the cottage. 

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 Number 2 and reinstating the same to its prior condition.

7.        On 18th December, 2008, we declined to grant the plaintiff an immediate interim injunction restraining the building works for the reasons set out in our Judgment dated 13^th January, 2009, (La Petite Croatie v Ledo [2009] JRC 009).  Notwithstanding, the plaintiff proceeded, as it was entitled to do, to seek a permanent injunction, the hearing for which took place on 10^th, 19^th and 20^th February, 2009, when Judgment was reserved.

General rules of interpretation

8.        The general rule is that the intention of the parties who created the restrictive covenant must be gathered from the words used.  Quoting from Blackburn v Kempson [1971] JJ 1747:-

"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."

9.        The Court has been assisted in the past by the observations of Pothier concerning the interpretation of agreements. In his Traité des Obligations, (1821) Tome 1 Article VII he sets out a number of rules for interpretation of agreements, the following of which would appear to be relevant:-

"Première Règle

On doit, dans les conventions, rechercher quelle a été la commune intention des parties contractantes, plus que le sens grammatical des termes.

Troisième Règle

Lorsque dans un contrat des termes sont susceptibles de deux sens, on doit les entendre dans le sens qui convient le plus à la nature du contrat.

Sixième Règle

Dans le doute, une clause doit s'interpréter contre celui qui a stipulé quelque chose, et à la décharge de celui qui a contracté l'obligation."

10.       As explained by the Court of Appeal in Haas v Duquemin [2002] JLR 27, caution must be exercised in applying these principles to the interpretation of deeds concerning immoveable property:-

"While I recognize that Pothier's rules on the construction of contracts may be useful in some circumstances as an assistance in the interpretation of deeds which confer real rights of property (see Le Pennec v Romeril), I think that care is required in their application.  Pothier, in setting out those rules, was addressing the law of obligations where the intentions of the contracting parties are the prime consideration.  In the law of property, however, a deed sets out real rights which affect others than the initial parties to the deed, and there are special rules, such as the presumption for freedom in relation to servitudes, which I will mention shortly."

We refer to the importance of third parties being able to rely on contracts in the public registry when we deal with extrinsic evidence.

11.      However, contracts of conveyance, like any other contract, do not exist in a vacuum and must be construed against the background of the surrounding circumstances or matrix of facts.  This is made clear in the most recent exposition on the interpretation of written instruments set out in the Judgment of Page, Commissioner in the case of In re Internine Trust [2005] JLR 236 at paragraph 62:-

"62.    The correct approach to the task before the court is to a large extent the same as it is for any instrument the meaning of which is in contention.

(i)        the aim is to establish the presumed intention of the maker(s) of the document from the words used: in the present case, there being no settlor-signatory, the maker must be taken in each case to be the trustee - or possibly the trustee and Sheikh Abdullah as the parties to the letters of instruction which conferred authority on the trustees to execute the declarations of trust (it makes little difference which in the present case);

(ii)       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 - a principle that has been a bedrock of English law since the judgment of Lord Wilberforce in Prenn v. Simmonds (3) and appears now to have been accepted as also properly reflecting the approach that this court should adopt in relation to such matters;

(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, known to the makers of or the parties to the document, and include (to use the language of Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Bldg. Socy. (2) ([1988] 1 W.L.R. at 913), from whose speech only Lord Lloyd of Berwick dissented)- "...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 (evidence of this kind being relevant where an estoppel is said to arise but not in this jurisdiction, unlike some others, as an aid to construing the original meaning of the document);

(v)       the critical provisions, cll. 2(b), 6(c) and 6(f), 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: "Loyalty to the text of a commercial contract, instrument, or document read in its contextual setting is the paramount principle of interpretation": per Lord Steyn in Society of Lloyd's v. Robinson (5) ([1999] 1 W.L.R. at 763); and

(vii)     this last precept may, however, have to give way if consideration of the document as a whole, having regard to the principles set out above or common sense, points to a different conclusion: "common sense" in this context being best reflected by the passage from the speech of Lord Reid in Schuler (L.) A.G. v. Wickman Machine Tool Sales Ltd. (4) ([1974] A.C. at 251) in which he observed:

'The fact that a particular construction leads to a very unreasonable result must be a relevant consideration.  The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.'

(See also Lord Steyn, again in Society of Lloyd's v. Robinson ([1999] 1 W.L.R. at 763) and Lord Hoffmann's observations in the Investors Compensation Scheme case (2) concerning the need, on occasion, for a court to accept that the parties must have used the wrong words or syntax.)"

Matrix of facts

12.      To set the restrictive covenant in context, it is necessary to start with the contract by which Wilbrook Investments Limited ("Wilbrook") acquired the whole of Pigneaux Farm and its land from Trudy Joy Pigeon and Angela Kay Pigeon on 25^th September, 1992.  The contract describes Wilbrook as acquiring "la chefve maison maintenant appelée "PIGNEAUX FARM", certaine ancienne maison dont les foyers sont bouchés (maintenant employée comme un office de ferme ou "store") offices, cour, hogard et avenue et les terres suivantes, savoir :- Le jardin en devant de ladite chefve maison, Le Petit Jardin à l'Est de la maison, Le Clos au Sud de la maison et Le Clos en derrière des Cottes ; le tout se tenant et joignant ensemble et ne formant qu'un seul et même corps de bien-fonds.." 

13.      Leaving aside the "jardin en devant de ladite chefve maison", the "terres suivantes" are those now shown on the site plan as field 552.  There is no express reference in the contract to the cottage, but Mr Falle submitted that it would have been included within the expression "offices".  Miss Benest submitted that "offices" was restricted to the collection of buildings around Pigneaux Farm and that the cottage was included within the land acquired. 

14.      Photographs taken prior to Wilbrook's acquisition show the property as a working farm with a clearly long established track leading south from the farm buildings passing the cottage to the east and accessing land to the south.  The land to the east of the track was cultivated, as was the land to the west and south of the cottage, but the rectangle of land between the cottage and what is now Number 2 did not appear to have been cultivated.  The cottage is shown with a roof (which later appears to have been stripped by Wilbrook) and corrugated lean-to structures set against it.  One of those structures is shown on the site plan forming the bottom of the "L".  It is accepted that at the time of Wilbrook's purchase the cottage was not fit for human habitation.

15.      In October 1992, Wilbrook submitted an application to the Planning Department to develop 7 units of accommodation at Pigneaux Farm.  Wilbrook therefore acquired the property for the purpose of development.  The number of units proposed subsequently increased to 8.  An initial plan appears to have been drawn up on 15^th September, 1992, by H.E. Allan & Associates and subsequently revised on a number of occasions.  Those plans show the cottage as an existing structure, either with no number or with the number 3 and finally with the number 7, with a further unit Number 8 to its south.  Planning consent for six units was obtained on 22nd February, 1993.

16.      Wilbrook sold Number 1, on 7th May, 1993, to James Wilson and his wife Carina Maeve Wilson nee McDevitt.  This comprised the "chefve maison" with the garages to the south-west and garden to the south together with the private roadway which borders the main farm house to the east and south.  Wilbrook retained the remaining units and the land.

17.      The contract included a number of clauses which were replicated in the sales of the remaining units and which we will refer to as "the estate clauses":-

(i)        A parking area was established to the west of Number 1 to be owned by the owners of Numbers 1 to 7 in common and with the right for the owners to park cars there. 

(ii)       The owners of No. 1 were given the right, together with the owners of Numbers 2 to 7 Pigneaux Farm to discharge sewage into temporary septic tanks established in the northern part of the land retained by Wilbrook, and this by means of drains established or to be established under units 1-6 Pigneaux Farm and the common parking area.  Wilbrook undertook to connect the same to the main drains once established in the main road to the north.

(iii)      The following restrictions were imposed for the benefit of all 7 units which we set out in full:-

"QU'IL sera toujours interdit de stationner des véhicules commerciaux de quelque nature que ce soit (sauf ceux en faire des livraison) bateaux ou caravanes sur aucune partie tant de ladite propriété présentement vendue que de ladite propriété que se réserve ladite Société Venderesse en ces lieux-là ainsi que sur ledit parc de stationnement en commun.

QU'IL ne pourra jamais être gardé, élevé ou toléré sur tant ladite propriété présentement vendu que lesdites propriétés portant les numéros deux, trois, quatre, cinq, six et sept « Pigneaux Farm » que se réserve ladite Société Venderesse ainsi que sur ledit parc de stationnement en commun aucuns animaux ou volailles (y inclus des pigeons ou colombes) sauf un nombre raisonnable des animaux apprivoisés (common or usual domestic pets.)

QUE rien ne sera conduit ou fait valoir sur tant ladite propriété présentement vendue que sur lesdites propriétés portant les numéros deux, trois, quatre, cinq, six et sept " Pigneaux Farm"  que se réserve ladite Société Venderesse ainsi que sur ledit parc de stationnement en commun qui par l'odeur, la fumée ou le bruit pourrait porter préjudice ou être nuisible au voisinage.

QU'IL sera toujours interdit de conduit ou fait valoir aucun commerce, négoce, métier ou entreprise commercial de quelque nature que ce soit sur tant ladite propriété présentement vendue que lesdites propriétés portant les numéros deux, trois, quatre, cinq, six et sept "Pigneaux Farm" que se réserve ladite Société Venderesse ainsi que ledit parc de stationnement en commun ; étant entendu que l'exercice d'une profession libérale et l'affichage d'une plaque à cet effet n'est pas compris dans la susdite restriction.

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 de ladite propriété portant le numéro sept "Pigneaux Farm"  et que les autorités compétentes ont désignée comme terre pour les usages d'agriculture et d'horticulture."

18.      It is true, as Miss Benest pointed out, that the contract gives the approximate location (but not the boundaries) of Numbers 2, 4, 5 and 6 but it does not give the location of Number 7.  Miss Benest submitted that Number 7 was in fact floating, in that Wilbrook wished to keep its options open with the Planning Department as to where within the entirety of the site it might decide to locate it. 

19.      The last clause quoted in full above is significant in this respect because it brings into the contract the consent issued by the Department of Agriculture and Fisheries on 3rd July, 1992, when Wilbrook acquired the property.  That consent shows that the whole of field 552 was restricted to agricultural and horticultural use with the exception of the cottage and the small rectangular piece of land between the cottage and Number 2.

20.      Wilbrook sold Numbers 3 and 5 on 16th July, 1993.  The proposed development had by then extended to eight units.  The purchasers acquired ownership in common of the parking area, but on this occasion, with the owners of Numbers 1, 2, 4, 6, 7 and 8, they were also given the benefit and burden of the remaining estate clauses, all of which now extended to Number 8.  Neither contract gives the location of Numbers 7 and 8.

21.      The purchasers of Numbers 3 and 5 were also made the subject of a restriction not intended to run with the land and aimed at ensuring that they would not impede the development of the remaining units by Wilbrook in the following terms:-

"QU'A PARTIR de ces jour et an pour aussi longtemps que des travaux de construction des bâtiments et appartenances en ces lieux-là seront en cours  d'exécution par ladite Société Venderesse ou ses employés ou contractants ou agents lesdits Acquéreurs ne pourront pas le actionner à cause d'aucune obstruction qui pourrait empêcher ou rendre difficile l'exercice desdits droits de chemin et passage créés par ce présent contrat ou à cause d'aucun dommage recouvrable suivant les principes du droit anglais appelé "nuisance"  et de plus ne fera pas aucune autre chose quelconque qui pourrait en aucune manière quelconque empêcher ou rendre difficile ledit Développement sur ladite propriété que se réserve ladite Société Venderesse. " 

22.      On 6th September, 1993, (2 weeks before the sale of Number 2) Wilbrook filed with the Planning Department a plan for the development of a unit marked as "plot 7" on the site of the cottage.  It comprised the existing cottage and a new extension to the north towards Number 2.  A further plan also filed on 6th September, 1993, was for the development of a unit marked "plot 8" to the south of plot 7.

23.      Wilbrook sold Number 2 on 24th September, 1993, to Julie Crane and it is in this contract that the restricted covenant was created.  It is therefore to this contract that the Court must look for the true interpretation of that restrictive covenant.  We will refer to it as "the Contract".

24.      The restrictive covenant 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)

25.      It transpires that in error page 9 of the Contract which contained the restrictive covenant was omitted when it was passed before the Royal Court and therefore another contract had to be passed the following Friday, 1st October, 1993, inserting that missing page and correcting certain other errors.  In our view nothing turns on this and we regard both contracts as one.

26.      The purchaser of Number 2 also acquired ownership in common of the parking area on this occasion with the owners of Numbers 1, 3, 4, 5, 7 and 8 (Number 6 being omitted we presume in error).  The relevant clause is in the following terms (consistent save for the omission of Number 6 with the earlier contracts of sale):-

"ITEM, la propriété en commun avec tant Monsr. James Andrew Wilson et Dlle. Carina Maeve McDevitt, sa femme, comme propriétaires de la chefve maison appelée  "Pigneaux Farm" que lesdits Sieur Le Feuvre et uxor [owners of Number 3], que Monsr.. Charles Arthur Burt et Dlle. Hazel Gilpin, sa femme, comme propriétaires de la propriété portant le numéro cinq "Pigneaux Farm" ainsi que ladite Société Venderesse comme propriétaire des propriétés portant les numéros quatre, sept et huit "Pigneaux Farm" de certain parc de stationnement qui se trouve en partie à l'Ouest de ladite propriété appartenant auxdits Sieur Wilson et uxor et au Sud de ladite propriété portant le numéro quatre "Pigneaux Farm" que se réserve ladite Société Venderesse....."

27.      She was also made subject to the benefit and burden of the remaining estate clauses and to the same clause as the purchasers of Numbers 3 and 5, preventing her from impeding the development.  Again, the Contract does not give the location of Numbers 7 and 8. 

28.      She was made subject to a specific servitude in favour of the owners of Numbers 7 and 8 in the following terms:-

"QUE ladite Société Venderesse comme propriétaire desdites propriétés portant les numéros sept et huit "Pigneaux Farm" auront le droit de garder en dessous de et à travers ladite cour ou avenue formant partie de ladite propriété présentement vendue tous et tels tuyaux, câbles et conduits pour l'approvisionnement d'eau, d'électricité et du téléphone auxdites propriétés avec droit d'accès à ladite Société Venderesse avec ou sans ouvriers, matériaux et outils sur ladite cour ou avenue afin de réparer , renouveler, remplacer, maintenir et  entretenir lesdits tuyaux, câbles et conduits."

29.      A number of observations can be made about the restrictive covenant:-

(i)        It is in unusually wide and all-embracing terms.  The Court has in the past construed servitudes which restrict the erection or construction of buildings such as:-

"Qu'il ne sera jamais érigé plus qu'une maison de résidence bourgeoise avec ses offices et dépendances sur ladite propriété présentement baillée et vendue..." (Arbaugh-v-Leyland (1967) JJ 745.)

"Qu'il ne pourra jamais être érigé plus qu'une seule maison sur le becquet de terre premièrement mentionné et présentement vendu" (Blackburn).

".....Etant de plus stipulé qu'il ne sera jamais érigé ou construit sur ladite pièce de terre présentement baillée et vendue ou sur le reste dudit clos que des maisons d'habitation bien construites avec des matériaux de bonne qualité," (Cotillard and Ors-v-O'Connor and Ors [2007] JRC 005).

In the present case, in addition to the prohibition on the erecting or constructing of anything let alone buildings, the "fonds servient" cannot even establish anything whatsoever.  There are two exceptions only relating to enclosures to the south and west of the boundaries of the garden of Number 2.

(ii)       The fonds servient is "ladite terre que se réserve ladite Société Venderesse au Sud de ladite propriété présentement vendue".  "Ladite terre" is a reference back to the opening clause of the contract which is in the following terms:-

"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 land reserved by Wilbrook comprised field 552.

30.      A number of questions arise:-

(i)        What are the southern and lateral limits of the restrictive covenant?  Was it intended that it would cover all the land reserved by Wilbrook to the south of Number 2 going right down to the southern and across to the western and eastern boundaries of field 552? 

(ii)       From what point is "au sud de la propriété présentement vendue" taken?  Is it taken from the southern boundary?  That, as Miss Benest pointed out, cannot be the case because the draftsman specifically exempted the western boundary of the garden of Number 2 (which self evidently is to the north of the southern boundary) from the restrictive covenant.  If it is taken from the northern boundary of Number 2, then the area covered by the restrictive covenant extends right round the inverted "L" of field 552 up to a point where it is in line with the northern boundary of Number 2.

These questions notwithstanding, Miss Benest submitted that the position was clear from the face of the restrictive covenant and indeed from the Contract as a whole.  Nothing could be built to the south of Number 2.  Whatever the lateral limits of the restrictive covenant, the cottage was indisputably to the south of Number 2.  The cottage was therefore subject to the restrictive covenant.

31.      On 1st October, 1993, and 26th November, 1993, Wilbrook sold plots 6 and 4 respectively, again with ownership in common of the parking area with the other units (including Numbers 7 and 8), the benefit and burden of the remaining estate clauses which extended to all eight units and the restriction against impeding any further development.  Any further development after the sale of Number 4 would have been limited to the only two units left namely Numbers 7 and 8.

32.      Wilbrook's application for planning permission in relation to Number 7 was refused by the Planning Department on 6th November, 1993.  We were informed that no further, perhaps more modest, planning applications to develop Numbers 7 and 8 were pursued by Wilbrook which then ran into financial difficulties.  The Royal Bank of Scotland International Limited acquired all of its remaining interest in the property as "tenant après dégrèvement" on 9th January, 1998.

33.      To complete the picture, the plaintiff is the successor in title to the purchaser of Number 2 and the defendants are by separate contracts the successors in title to the purchasers of Number 1 and the successors in title to the remaining land (including the cottage) from Wilbrook, having acquired the same from The Royal Bank of Scotland International Limited.

Servitudes 

34.      Servitudes are described in the Jersey Law of Property by Paul Matthews and Stéphanie Nicolle at paragraph 1.38 as follows:-

"A right of servitude is a right (i) to make use of the property of another, or (ii) to prevent the owner of the property from making certain use of it (Pothier Oeuvres, 1821 ed., Tome 17, Titre XIII, Des Servitudes Réelles, Art I, para 1, page 216).  The important feature to note is that a servitude is passive as regards the person whose property is subject to it; he is never required to take positive action.  Servitudes extend wider than easements in English law, and include what English lawyers know as 'profits'. And, also unlike the English law of easements, a servitude may be either personal or real, i.e., may belong either to a person entitled to exercise the right, independent of the ownership by him of any property ("servitude personnelle") or real, when the servitude is one to which a property ("the servient tenement") is subjected, to the benefit of the adjoining property ("the dominant tenement") being the property to which the servitude is attached (see Arbaugh v Leyland (1967) 1 JJ 745, cited in Sayers v Duchemin unreported, 12 February 1985 and 24 September 1985 (though noted in 1985-86 JLR N-15 on another point.)"

35.      As Mr Falle explained, servitudes are not to be found in the customary law, as they are an import from the civil law.  Domat, who wrote on the civil law, has often been cited as authority in the Royal Court, and defines servitude as follows:-

"I.       La servitude est un droit qui assujettit un fonds à quelque service, pour l'usage d'un autre fonds, qui appartient à un autre maître ; comme par exemple, le droit qu'à le propriétaire d'un héritage de passer par le fonds de son voisin, pour aller au sien.

II.        Toute servitude donne à celui à qui elle est dûe un droit qu'il n'auroit pas naturellement & elle diminue la liberté de l'usage de fonds asservi, assujetissant le maître de cet héritage à ce qu'il doit ou souffrir, ou faire ou ne pas faire, pour laisser l'usage de la servitude.  Ainsi celui de qui le fonds est sujet à un droit de passage, doit souffrir l'incommodité de ce passage : Ainsi, celui dont le mur doit porter le bâtiment clevé au dessus, est obligé de refaire ce mur, s'il en est besoin : Ainsi tous ceux qui doivent quelque servitude, ne peuvent rien faire qui en trouble l'usage ....

IX        Comme les servitudes dérogent à liberté naturelle à chacun d'user de son bien, elles sont restrainres à ce qui se trouve précisément nécessaire pour l'usage de ceux à qui elles sont dûes, & on en diminué, autant qu'il se peut, l'incommodité.  Ainsi, celui qui a un droit de passage dans le fonds  d'un autre, sans que le titre marque le lieu où il pourra passer, n'aura pas la liberté de choisir son passage où il lui plaira ; mais il lui sera donné par l'endroit le moins incommode au propriétaire du fonds asservi, & non, par exemple, à travers d'un plant ou d'un bâtiment.  Mais si le titre de la servitude ou la possession règlent le passage ; quoique par un endroit incommode au propriétaire du fonds asservi, il faut s'y tenir."

We agree with Mr Falle that there can be derived from the above a principle that not only must there be a clear fonds dominant and a fonds servient, but also that the terms of the burden on the land must be precise.  Translating the first sentence of paragraph IX - "As servitudes derogate from the natural liberty of each to use his own property they are confined to that which is precisely necessary for the use of those to whom they are due".

36.      There is a presumption in favour of the freedom of land as made clear in the following extract from the Judgment of Southwell JA 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".

37.      Thus, in order for the plaintiff to succeed, it must be able to define with precision:-

(i)        The fonds dominant

(ii)       The fonds servient

(iii)      The terms of the burden

Following Pothier's sixth rule and Colesberg, any ambiguity must be construed in favour of the fonds servient.

38.      There is no issue in this case as to the fonds dominant (Number 2) or as to the terms of the burden.  The issue relates to the fonds servient.  What is the precise extent of the land which is burdened and specifically does it include the cottage?

Building scheme

39.      The requirements for a building scheme were set out in Harris-v-Mont Gras d'Eau Investments Limited [1980] JJ 187:

"Mr Mourant submitted that by increasing the distance of the building line restrictions, as well as extending it to the plot where the defendant company's house now stands, Mr Baker, the building owner, intended and did create a building scheme.  If he did then and if I were prepared to follow the position in England, I could properly imply that he intended and those taking from him understood that to be the case, that each of the four owners could enforce the building line servitude against the others.  The law on building schemes and mutual covenants is set out in paragraphs 1355 and 1356 of 16 Halsbury's Laws of England, 4^th ed., at 912-913.  They are as follows:-

'1355.  Essentials of a building scheme.  A building scheme is a common species of the genus described as 'schemes of development'.  In order to establish a building scheme it must be proved (1) that there was a common vendor under whom the various owners derive title; (2) that before land was sold there was a scheme relating to a defined area which the vendor intended to sell in lots, containing restrictions which were to be imposed on all the lots and which, though varying in details as to particular lots, were consistent only with some general development; (3) that the restrictions were intended by the vendor to be and were for the benefit of all the lots; (4) that the parties or their predecessors in title purchased their lots from the common vendor on the footing that the restrictions imposed on the land purchased by them were to enure for the benefit of the other lots included in the general scheme.

For the second requirement to be satisfied it is essential that both the area within which the scheme is to operate and the obligations imposed within the area should be definite, so that each party may know with certainty what his rights and obligations are, and against and by whom those rights and obligations may be enforced; but the obligation need not be identical in every instance.  It is not necessary that all the lots should be defined when the scheme is established.

The intention required to satisfy the third requirement is to be gathered, generally speaking, from a consideration of all the circumstances including the nature of the restrictions.  It is not negatived by the fact that the vendor reserves to himself power to dispense with the restrictions as regards lots which are not sold. Apart from the exercise of any such power the vendor himself is bound by the scheme.

If the first three requirements are established the fourth will readily be inferred provided the purchasers have notice of the facts involved in the first three.  Without such notice, however, it is difficult to establish the fourth requirement.

1356.  Formation of a building scheme.  In some instances of building schemes purchasers have been required to execute a deed of mutual covenants) expressly giving to each the benefit, and imposing on each the liability, of the restrictions.  This, however, is not essential.  The conveyance to each should be made subject to the restrictions, but the title of each to the benefit of the covenants is sufficiently established wherever the foregoing four points exist.  If the purchases are simultaneous it is possible to imply a mutual contract under which the benefit of the covenant is annexed to each plot of land and thereafter passes upon a conveyance of the plot without express mention in accordance with the principle already stated.  The purchases need not be simultaneous and the circumstances may exclude the possibility of such a contract.  It is sufficient that at the time of each purchase the community of interest necessarily requires and imports in equity reciprocity of obligation.  Requirements with regard to registration must be observed if the restrictions are to bind subsequent purchasers.'

As regards the requirements of registration of course this is not something we observe in Jersey and provided the appropriate formulae have been incorporated in the deed no more need be done."

40.      The Court found that there was no building scheme because the contracts by which the four plots concerned had been sold off did not include the servitude and it was therefore not certain that the purchasers would have known that the servitude could have been enforced against each other. 

41.      The position in the case of Pigneaux Farm is quite different, in that all of the contracts of sale of Numbers 1 - 6 contained the estate clauses, so that it would have been absolutely clear to each of the purchasers that they were intended to be mutually enforceable and that they extended (after the sale of Number 1) to eight units.  In our view, the four requirements for a building scheme are met in the case of Pigneaux Farm.

42.      Miss Benest argued that the building scheme, if one existed, terminated on the date of Wilbrook's dégrèvement, and accordingly, whilst the estate clauses may be mutually enforceable between Numbers 1 and 6, Numbers 7 and 8 neither have the benefit nor burden of them.  She produced no authority to support that proposition.  Whilst it is the case that the defendants cannot say that they draw their title to Numbers 7 and 8 from a common vendor, in the sense that The Royal Bank of Scotland International Limited acquired the same not as a purchaser but as "tenant après dégrèvement", they do derive their title from a common developer, namely Wilbrook.  We can see no reason why in principle the insolvency of a developer midway through a building scheme terminates that scheme and prevents another developer acquiring and completing the same with the benefit and burden of the estate clauses.

Fonds Servient .

43.      Miss Benest's "best case" as she put it was that the restrictive covenant burdened all of the land reserved by Wilbrook on the date of the Contract (24th September, 1993), which lies to the south of the northern boundary of Number 2.  By reference to the site plan, you draw a line east from the northernmost part of Number 2 and where the line intersects with field 552 is the northern limit of the restrictive covenant.  Everything in field 552 to the south of that line is subject to the restriction.  That includes all the land surrounding the cottage and on the plaintiff's case, the cottage itself.  This interpretation does give certainty to the extent of the land burdened by the restrictive covenant but we conclude from the terms of the Contract and the surrounding circumstances or matrix of facts that it cannot have been the intention of the parties to the Contract to burden such a large area, and in particular the cottage, for the following reasons:-

(i)        This was a building scheme in which Wilbrook intended to develop and sell, initially 7 and then 8 units.  Wilbrook "comme propriétaire des propriétés portent les numéros sept et huit" was given the benefit and burden of the estate clauses including ownership in common with the others of the parking area.  The purchasers of Number 2 as with those of Numbers 3 and 5 (and subsequently 6 and 4) agreed not to impede the development.  It is inconceivable in our view that Wilbrook would consent to a servitude in favour of Number 2 which would prevent the development of Numbers 7 and 8.

(ii)       In the Contract and those before it a distinction is made between Wilbrook as the owner of the properties numbered 1-7/8 and land reserved by Wilbrook as sales proceeded.  Specifically, Wilbrook is described on the one hand as "ladite Société Venderesse comme propriétaire des propriétés portant les numéros sept [et  huit] " and on the other hand as the owner of "ladite terre que se réserve ladite Société Venderesse"  The restrictive covenant only burdened "ladite terre" not the "propriétés portant les numéros sept et huit".  That is made very clear in the last of the estate clauses quoted above which provides for the avoidance of doubt that "ladite terre" is the agriculturally restricted land that may be sold with the properties known as Numbers 7 and 8.

(iii)      Whilst it is true that none of the contracts of sale gave the location of Numbers 7 and 8, all that was left for development beyond units 1 to 6 was the cottage and the unrestricted land.  That Number 7 is located on the site of the cottage is confirmed by the plans filed with the Planning Department on 6th September, 1993, some two weeks before Number 2 was sold.  Indeed it is clear from the evidence that Wilbrook had installed services for the purposes of connection to the site of the cottage. 

(iv)      We accept that there is some difficulty in relation to Number 8 in that the plan filed with the Planning Department places it in the land that is subject to agricultural restrictions and it therefore falls within "ladite terre que se réserve ladite Société Venderesse".  That land is excluded from the benefit and burden of certain of the estate clauses.  The location of Number 7 at the site of the cottage is however in our view beyond doubt and is to the south of Number 2.

(v)       The restrictive covenant was created specifically for the protection of Number 2, as opposed to the other units in the scheme.  It would be reasonable to wish to exert the far reaching level of control provided by the restrictive covenant over a small piece of land of immediate concern to the owners of Number 2 but unreasonable for such control to be exerted over the large area contended for by Miss Benest.  We have in mind the observations of Lord Reid referred to in paragraph 11 above, namely the more unreasonable the result the more unlikely it is that the parties can have intended it and if they do intend it, the more necessary it is that they shall make that intention abundantly clear.

(vi)      The provision for written consent is consistent with a restrictive covenant over a small area in order to permit modest structures such as garden sheds to be erected by consent between neighbours and without having recourse to formal contracts before the Royal Court.  It is unrealistic to suggest that such written consent was intended to cover the erection of two houses on land which according to the Public Registry is subject to a restrictive covenant.

44.      The position here is not dissimilar to that encountered by the Court in The Blampied Representation (1998/220).  In that case, the development took place in two stages.  In the first stage properties with southerly gardens were built on the north and north-east part of the land purchased by the developer with an access road to the south.  These properties were then sold with the benefit of the following covenant:-

"Qu'aucun édifice ou construction quelconque (sauf ledit porche et les murs ou autres clôtures ci-dessus mentionnée) ne sera jamais érigé ou placé au Sud de ladite maison formant partie de ladite propriété présentement vendue."

45.      The remainder of the land to the south of the roadway was then sold and subsequently developed.  The issue arose as to whether the restrictive covenant extended to the subsequent development.  It was clear from other provisions within the contracts of sale that the original developer intended more houses to be built on the land to the south and the Court concluded as follows:-

".....It is crystal clear that both Roderick Enterprises Limited and Herent Limited contemplated that more houses would be constructed on the land to the south of Croydon Terrace.  So far as Roderick Enterprises Limited is concerned, it is inconceivable that it would have intended to create a servitude in its contracts of sale of its properties in Croydon Terrace, which effectively prevented it from selling for development the land to the south."

46.      The Court found that the restrictive covenant was limited to the small area of the gardens to the south of the properties sold in the first stage.  The intention of Wilbrook to develop at least the site of the cottage is equally clear and we too regard it as inconceivable that Wilbrook intended to create a servitude in its contract of sale of Number 2 which effectively prevented it from doing so.  As will be seen, we too conclude that the restrictive covenant was intended to cover a much smaller area than that contended for by Miss Benest.

47.      In essence, the Contract is ambiguous.  On the one hand certain provisions make it expressly clear that Wilbrook intended to develop Numbers 7 and 8 and on the other hand a servitude was created which prohibited any development to the south of Number 2.  Because the Contract does not describe the location of Numbers 7 and 8, the ambiguity is latent and only came to light when work on the cottage commenced.  The position of Number 7 on the site of the cottage to the south of Number 2 is in our view clear from the surrounding circumstances or matrix of facts and therefore it transpires that one clause of the Contract prohibits that which other clauses permit.  Miss Benest submitted that there is no conflict between these clauses because of the provision for written consent within the terms of the restrictive covenant. In our view this is unrealistic, why would a developer who had reserved all the rights necessary to develop Numbers 7 and 8, filed plans with the Planning Department for their devolvement and installed services for connection, put itself at the mercy of the owner of Number 2 in this way?  Why would the owner of Number 2 given the benefit of this restriction ever give consent?

48.      That ambiguity has to be resolved in favour of the fonds servient.  We thus conclude that the cottage at least is not subject to the restrictive covenant and that in any event it was never intended to cover the large area contended for by Miss Benest.  That being the case, what area is burdened?

49.      Miss Benest's fall-back position was that the restrictive covenant was limited to the area of land to the south of Number 2 co-extensive with it.  In order to establish its lateral limit to the west, she drew a line from the north-west corner of Number 2 running due south to the boundary of field 552 and in order to establish its lateral limit to the east she drew a line from the north-east corner of No. 2 running due south to the boundary of field 552.  The restrictive covenant thus interpreted would include the enclosure to the west of the garden of Number 2 and it would also include the cottage.

50.      The difficulty with this interpretation is that we have already found that the restrictive covenant was not intended to include the cottage and that it could not therefore have extended further south than the north wall of the cottage.  It led us however to conclude that the true intention of the parties to the Contract was to restrict an area of land between Number 2 (and co-extensive with it) and the cottage.  It is a small area of immediate concern to Number 2 and over which it would have been reasonable to impose such far-reaching restrictions.  This interpretation is consistent with the draftsman's narrow focus on the enclosures to the south and west of the garden of Number 2.

51.      Mr Falle supported that interpretation but drew our attention to the plan filed with the Planning Department on 6th September, 1993, which showed an extension to the north of the existing cottage, together with a further area creating a curtilege, around that new building.  He argued that the restrictive covenant should extend only so far as that curtilege the position of which he said could be extracted with accuracy from the site plan.  He argued that the draftsman of the contract would have been aware of this plan filed with the Planning Department and could not have intended to create a restriction which would have prevented the building of this northern extension to the cottage and restrict the area within the curtilege.

52.      We agree with Miss Benest that this would reduce the area covered by the restrictive covenant to such an extent that it would have provided little protection to Number 2 and we doubted whether such a small area could have been intended by the parties to the Contract.

53.      There was nothing within the Contract or the surrounding circumstances that enabled us to resolve this issue and we were therefore at the point at which the restrictive covenant may have failed for uncertainty.  As there was a clear intention on the part of the parties to the contract to give protection over an area of land to the south of Number 2, we determined to have recourse to certain extrinsic evidence to see whether that assisted in resolving the issue.  For the avoidance of doubt, we reached the above conclusions without recourse to, and in the case of the learned Jurats without sight of, the extrinsic evidence.

Extrinsic evidence

54.      At the outset of the hearing, at an application made by the defendants in the absence of the Jurats, I admitted certain extrinsic evidence de bene esse,  in other words, if necessary, in order to assist in the interpretation of the restrictive covenant.  That evidence comprised certain documents taken from the file of Olsen, Backhurst & Dorey, who acted both for Wilbrook and the purchaser of Number 2 in the Contract. 

55.      The general principle is that where the intention of the parties has been reduced to writing it is not permissible to adduce extrinsic evidence of their subjective intentions, as made clear in Internine.

56.      Miss Benest made powerful submissions about the dangers of admitting extrinsic evidence in the interpretation of contracts passed before the Royal Court.  As the Court of Appeal made clear in Haas, successors in title and their lawyers rely on such contracts.  If the Court were to permit a successor in title to re-visit a contract and have it re-interpreted by reference to extrinsic evidence, then she warned that the sanctity of the Registry and our method of conveyancing would be destroyed.  She did not go so far as to say that there were no circumstances in which the Court could properly admit extrinsic evidence but she said we should be slow and loath to do so. 

57.      The principles of interpretation set out in Internine are drawn in part from English law and it is clear that under English law there are a number of exceptions to the general rule against the admission of extrinsic evidence.  One well established exception is in relation to the construction of conveyances of land (see Halsbury's Laws of England 5th edition Volume 4(1) paragraph 929). The reasons for this exception were explained by McGarry J in Neilson-v-Poole (1969) 20 P&CR 909:-

"...in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result.  The prime function of a conveyance is to convey.  As to any particular parcel of land, either the conveyance conveys it or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed.  The court cannot simply say that the boundaries are uncertain and leave the plot conveyed fuzzy at the edges, as it were."

58.      Under Jersey law, there is a specific procedure for resolving boundary disputes by the use of boundary stones, namely "bornage", under which the parties are able to adduce their evidence whether before the Vue de Vicomte or under appeal before the Vue de Justice (see Traité du Droit Coutumier de L'Ile de Jersey by Le Gros at page 10) although not all boundary disputes can be resolved by the use of boundary stones.

59.      However, we are not concerned here with uncertainties as to what has or has not been conveyed by Wilbrook.  Uncertainties as to a restrictive covenant would ordinarily lead to it becoming void for uncertainty.  Halsbury's Laws of England 5^th edition Volume 13(4) has this to say at Paragraph 208:-

"No direct evidence of intention can be given to resolve an ambiguity other than a latent ambiguity.  To allow such evidence would be regarded as infringing the rule that the terms of a written instrument cannot be varied or contradicted by extrinsic evidence....... A latent ambiguity may be resolved by the further evidence admissible to solve such an ambiguity, but otherwise an ambiguous deed is, either as to the whole of the deed or, where the ambiguity occurs in a severable part of the deed, as to that part, void for uncertainty."

60.      In relation to latent ambiguity, it goes on to say paragraph 209:-

"When the instrument appears on its face to be free from ambiguity but, upon the endeavour being made to apply to the persons or things indicated, it appears that the words are equally applicable to two or more persons, or to two or more things, either without any inaccuracy or with a common inaccuracy, which may be ignored as a slip, there is a latent ambiguity.  The ambiguity, in this case also called an equivocation, is not discovered until the instrument comes to be applied to external circumstances.  Direct evidence of the author's intention may be then given for the purpose of ascertaining which of the several persons or things to whom the words are applicable was intended to be denoted, and where there is a jury, the question of which of two or more possible meanings was intended is a question of fact for the jury."

61.      Miss Benest accepted that to the extent there is an ambiguity as to the area burdened by the restrictive covenant, it is a latent ambiguity.  The draftsman did not indicate the location of Nos. 7 and 8 either by description or by attaching a plan to the conveyance and therefore no issue arises on the face of the Contract.  It was only when the defendants began work on the cottage that the ambiguity was discovered. 

62.      Under English law the admission of extrinsic evidence is subject to the important qualification that such extrinsic evidence must be of probative value in determining what the parties intended, a qualification described in Ali-v-Lane and Another (2006) EWCA Civ 1532 as crucial. 

63.      We accept that the rule against admitting extrinsic evidence should be applied strictly in the context of contracts passed before the Royal Court so as to preserve the sanctity of the Registry and the method of conveyancing in Jersey and that the Court should be slow to permit of exceptions.  One exception however in which it is permissible in our view to do so under Jersey law, albeit with caution, is where, as here, there is a latent ambiguity and the extrinsic evidence is of probative value in resolving that ambiguity.

64.      Turning to that evidence, it comprises correspondence between the purchaser's father, Michael Crane, who was representing her and Mr Trevor Rabet, a senior conveyancer at Olsen Backhurst and Dorey, in the period immediately preceding the passing of the Contract.  On 20th September, 1993, Mr Crane had clearly been in direct contact with Mr Wilson of Wilbrook and wrote as follows:-

"He [Mr Wilson] has also said that there can be no development from the bottom of Unit 2 garden up to the walls of the derelict cottage to the south of Unit 2.  Would it be possible to have this fact reinforced in the conveyance in that my permission would be necessary before structures could be erected on it, as, of course, situations can change?"

65.      He wrote again on 21st September, 1993, in the following terms:-

"There are one or two minor points that I also need to clear and confirmation of the 1 year defect guarantee as to whatever the standard Jersey agreement is, plus confirmation that the land to the south of the garden up to the cottage will not be built upon other than for standard garden equipment".

66.      On 22nd September, 1993, he writes as follows:-

"6.       The garden area to the south of the garden of Unit 2 not be built or [sic] without permission of Unit 2".

The margin of that letter has manuscript annotations with the word "agreed" against number 6.

67.      Mr Rabet responded on 24th September, 1993, (the day the contract was passed) in relation to number  6 as follows:-

"6.    This has been added to the contract".

68.      There is also a handwritten note headed "Preparation Crane - 2 Pigneaux Farm" which has the handwritten entry "Building restriction on land from bottom of garden of 2 to site of 7 & 8? Without Crane consent?"

69.      These exchanges are helpful in that they confirm the modest area to be covered by the restrictive covenant, namely the area between Number 2 and the cottage and that it was never intended for the restrictive covenant to cover the large area contended for by Miss Benest, or to prevent the development of the cottage or anything to the south of the cottage. 

70.      It is of probative value in that:-

(i)        Olsen Backhurst and Dorey acted for both parties to the Contract and we were not therefore considering evidence of the subjective intentions of one party only.

(ii)       It is clear to us from the correspondence that (notwithstanding the hand written note) the restrictive covenant was intended to extend up to the northern granite wall of the derelict cottage.

 Conclusion

71.      We conclude therefore that upon the true interpretation of the restrictive covenant the fonds servient is as described by Miss Benest in paragraph 49 above, save that it extends only so far as the northern granite wall of the derelict cottage.  We illustrate the area concerned on the plan marked "Restrictive Covenant" attached hereto.

72.      For the avoidance of doubt, to the extent that the track referred to in paragraph 14 above falls within the fonds servient, then, as it was clearly established at the time the restrictive covenant was created, its use today as a track or roadway to access the cottage or for any other purpose does not infringe any of the provisions of the restrictive covenant.  We make no finding in respect of a proposed parking area shown between Number 2 and the cottage on the plans approved by the planning department upon which we have not heard any argument.

73.      It follows that the plaintiff has failed in its contention that the works currently being undertaken are in breach of the restrictive covenant and the Order of Justice is therefore dismissed.

74.      We direct the Judicial Greffier to make a marginal note against the entries of the contracts in the relevant registries of the Public Registry.

Authorities

La Petite Croatie Ltd-v-Ledo [2009] JRC 09.

Blackburn v Kempson [1971] JJ 1747.

Traité des Obligations, (1821) Tome 1 Article VII.

Haas-v-Duquemin [2002] JLR 27.

In re Internine Trust (2005) JLR 236.

Arbaugh-v-Leyland (1967) JJ 745.

Cotillard and Ors-v-O'Connor and Ors [2007] JRC 005.JLR N.21.

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

Pothier.

Harris-v-Mont Gras d'Eau Investments Limited [1980] JJ 187.

The Blampied Representation (1998/220).

Halsbury's Laws of England 5th edition Volume 4(1).

Neilson-v-Poole (1969) 20 P&CR 909.

Traité du Droit Coutumier de L'Ile de Jersey.

Halsbury's Laws of England 5th edition Volume 13(4).

Ali-v-Lane and Another (2006) EWCA Civ 1532.

Jersey Law of Property.