LORD CARNWATH: (with whom
Lord Reed, Lord Kerr, Lord Hughes and Lady Black agree)
1.
This appeal concerns the management of a development of townhouses known
as Rainbow Court in the area of Sunrise Park, Trincity. The appellant, Shirlanne
Sacha Singh, is the owner of unit 18 on which she is alleged to have carried
out work without approval as required by her lease. The main issue is whether
she established an arguable case that the management company acquiesced in the
work or otherwise deprived itself of the right to injunctive relief.
The legal background
2.
Home Construction Ltd (“the lessor”) was the developer of Rainbow Court
and is the lessor of the townhouses. The appellant is the owner of unit 18,
under a lease granted to her predecessor on 6 June 2005 for a term of 199
years. Recital C of the lease indicated that the leaseholds within the
development were being sold under a building scheme, in which the covenants
would be mutually enforceable.
3.
The respondent (“the company”) is a company formed for the purpose of
managing the development, and is described in the lease as the Townhouse Management
Company. By a deed dated 8 March 2012 the lessor appointed the company as its
agent, among other things, to fulfil its obligations under the leases of the
townhouses and enforce their terms, but did not transfer any interest in the
property which remained vested in the lessor. (Although the lease had envisaged
that the lessor would transfer certain “reserved property” to a management
company, this was never done.)
4.
Under the Fifth Schedule to the lease, the lessee covenanted with the
lessor (para 9) not to make any alterations or additions in or on the property
without first obtaining the lessor’s written approval, and (para 15(i)) to
comply with any reasonable rules and regulations of the company. The company
produced a document called the “Townhouse Community Guidelines” (“the guidelines”),
which, among other things, required that before making alterations to
townhouses, lessees should seek the company’s written approval; and set out
certain “guidelines for maintaining the architectural standards for your
Townhouse”.
5.
There is nothing in the document, or the papers before the Board, to
indicate in terms its precise legal status or when and how it was adopted or
made known to the individual owners. Under article XI “General Administrative
Guidelines” it is stated:
“Notwithstanding any of the stated
provisions in our townhouse scheme guidelines, the board of the management company
and/or the landlord shall from time to time, as it deems necessary, make or
amend these rules and regulations for the neighbourhood development scheme
which shall become effective if and when a copy of the regulations is made
available in print or electronic means to each unit owner.
The board and/or the landlord
shall have the right to enforce such obligations, or breach of any rule
regulation or restriction constituting a breach of these declarations.”
This suggests that they were seen as “rules and
regulations” enforceable under para 15(i), but subject to copies being made
available to individual owners. As will be seen, the appellant’s case is that
she was only supplied with a copy on 5 November 2014, after she had started the
works.
The appellant’s works
6.
On or about 3 November 2014 the appellant started to carry out works to
the property. She had not sought or obtained the company’s consent, but,
according to her defence, she had orally informed two officers on or about 26
October of her intention to carry out works. On 18 November 2014 the company’s
board wrote to her referring to the “exterior construction” which had been
taking place at the property:
“Verbal communication was made
between yourself and one member of this board. There has been no formal request
to the Architectural Control Committee/board of directors, as required in the
Townhouse Community Guidelines (article VI Architectural Control Guidelines. pp
7-8) prior to the start of construction.”
The letter continued that “of concern to the board also”
was that the appellant had given a verbal timeframe of one week for the works
but construction was now in its second week, and that the works were causing
disturbance and nuisance to other tenants. It asked the appellant immediately
to set out the timeframe for completion of the work, to say what work was to be
carried out in the common areas, and to agree to carry out work only within
certain hours. It concluded: “We look forward to a peaceful resolution to this
situation”.
7.
The appellant replied by letter dated 20 November 2014. She asserted
(inter alia) that the guidelines were not valid in law, that the works were
consistent with other works to townhouses within the development to which no objection
had been taken by the board, and that in any event the works had been agreed by
the board “through the verbal assurances of its agent(s)”, or objections had
been waived. She added that works were substantially complete, and that
finishing them would not cause dust or disturbance. The letter concluded:
“Since the date of your letter I
have as a purely cosmetic measure designed to enhance the property erected four
columns to the front of my property which do not in any way alter the structure
of my property and which my attorneys have advised cannot reasonably be
objected to for the reasons mentioned in the second paragraph above.”
8.
On 25 November 2014 the company wrote repeating the complaints as to
carrying out of works without consent and resulting nuisance, demanding that
she submit a written request for approval of the works, and threatening legal
proceedings.
The proceedings
9.
On 28 November 2014 the company issued the present claim for
declarations, injunctions and damages. An ex parte interim injunction
granted by Pemberton J on 2 December 2014 was discharged by the judge on the
appellant’s application on 7 January 2015 on the ground that it had become
otiose following completion of the work, but she ordered the appellant to pay
the company’s costs.
The pleadings
10.
The company’s case was set out in detail in a re-amended statement of
case dated 23 January 2015. Under the heading “Particulars of the claimant’s mandate
and responsibility” (para 4), it asserted (inter alia) that the lessor had
transferred its remaining interests in the townhouses to the company to assume
all rights and duties of the lessor for the townhouses. It referred to the
relevant covenants in the Fifth Schedule to the lease, including the
requirement for written approval for alterations or additions, and to the
relevant provisions of the guidelines. It gave particulars of “unauthorised
usage and/or illegal construction works”. The list included allegations both of
specific works and of various forms of nuisance or disturbance. The offending
works were described as follows in para 8:
“(b) construction/modification
to the external part of unit 18 in the front and in the back of the unit
involved in the erection of four pillars/columns which has completely changed
the appearance of building in that there is no uniformed appearance; …
(g) removal of the
decorative plants placed between the car ports and concretisation of the divide
between car ports at units 17 and 19 (both bounding car port for unit 18);
(h) changing of the doors
from the standard and approved door for all of the units at the Townhouses to
non-uniform doors;
(i) installation of a
window to the kitchen;
(j) removal of a wall at
the rear patio and installation of a second double door at the rear of the
property;
(k) installation of a step
in the common walk way which is also tiled and which has fundamentally changed
the otherwise uniformed appearance of the raw concrete pathway throughout the compound;
(o) other internal
construction works inclusive of adding rooms and changing the layout as
approved.”
11.
It was also alleged that “as a result of the breach of covenants and
guidelines” by the appellant, the company had been put to expense or suffered
loss, of which particulars were given as follows:
“(i) Cost to repaint gate -
$60.00
(ii) Cost of decorative
plants being destroyed - $916.25
(iii) Cost of roof repairs -
to be quantified.”
12.
The relief sought included claims for declarations in respect of the
alleged breaches, and mandatory injunctions in these terms:
“(c) … to remove the
structure/s on the external part of unit No 18 that are not in conformity with
the said guidelines and/or are not in conformity with the Townhouses layout as
approved and in existence and/or changed the uniform appearance of the
Townhouses, namely:
i.
The tiled over are[a] of the common walk way;
ii.
The erected pillars (columns) in the front and the back of the property;
iii.
The installed electrical fixtures which has made changes to the front of
the erected pillars in which brightly coloured decorative lights are on
nightly;
iv. The step in the common
walk way;
iv.
The window to the kitchen;
v.
The doors at the front and back of the property which has completely
changed the appearance of the building;
vii. The concretisation of
the divide between car ports at units 17 and 19 (bounding car port for unit
18).
(d) … to replace the
structure/s in the internal/external part of unit 18 that are not in conformity
with the said guidelines and/or are not in conformity with the Townhouses
layout as approved and in existence, namely the wall that was removed from the
rear patio, internal modifications made by adding room or rearranging the
architectural layout of the rooms.”
Finally there were claims for special damages of $976.25
“plus additional costs for repair of roof”, and “general damages”.
13.
By her Defence, the appellant, inter alia, put the company to “strict
proof” of para 4 of the claim (“mandate” of the company). She denied the
nuisance allegations. She admitted carrying out the works described (with minor
qualifications) but made specific responses, which can be summarised as follows
(taking the lettering from the claim).
(b) She admitted the construction of the four pillars
but said they had not changed the appearance of the property so as to alter its
architectural uniformity with the other townhouses in Rainbow Court.
(g) She admitted removing only a small part of a
hedge where water had been pooling, but added that the owner of townhouse 1 had
removed her entire hedge and concreted over the space.
(h) She admitted changing her front door in 2012, but
said that this was done with the knowledge of the lessor, who had never
objected, and not materially changed the external appearance.
(i) She said the same about the added window, which
was in any event very small and installed as a safety measure.
(j) She admitted the changes to the rear patio, but
said that five other units had already materially changed their rear patios, so
that there was already no uniformity.
(k) She admitted the existence of a step but said
that it was on her property, not on the common walkway.
(o) She admitted the internal changes but said that
three other units had extended without obtaining consent, and without objection.
14.
In relation to the claim for damages, she said that she had painted the
gate in 2011 with the express permission of the company’s then President; she
denied removing the plants save as noted above; and the repairs to the roof
were done by private arrangement with the company’s contractor and at her own
expense.
15.
At para 13 she referred to works done at ten other properties in Rainbow
Court, with which her works were “consistent”, and which had been carried out
without consent but without attracting objection or proceedings. For example,
she described the following works at Townhouse 1:
“Townhouse 1-conversion of front
of property plant hedge to full concrete ground; construction of an extension
which includes a new front room and additional room at rear of property …”
Photographs of the works were attached. She asserted (paras
14, 29) that she alone had been targeted by the company for reasons of malice,
the objective being “to frustrate and harass her to the point that she
permanently vacates her property”. She set out particulars of previous acts of
alleged harassment or malice by officers of the company.
16.
With regard to the work in November 2014, she said that on about 26
October 2014 she had had oral discussions with the company’s property manager
and a director, and had informed them of the proposed works, and had received
no complaint, objection or request for an application for approval; but that on
5 November 2014, after the works had started, the company had supplied her, for
the first time, with a copy of its guidelines. She also referred to the
company’s letter of 18 November 2014, as evidence that the company had waived
any objections to the works.
The application for summary judgment
17.
There were no further pleadings. On 15 April 2015 the company applied
for an order striking out the defence as disclosing no grounds of defence and
for summary judgment for the relief claimed. The supporting affidavit, sworn by
the company’s attorney, relied on her admission of carrying out the works
without consent. There was no substantive response to her allegations in
respect of works to other townhouses, which were categorised as “a red
herring”, as were her allegations about targeted malice. The draft order
attached to the affidavit provided for the statement of case to be struck out
“and/or an order for summary judgment dismissing the defendant’s case”. It did
not in terms specify any substantive relief.
18.
There followed an exchange of detailed submissions by counsel on each
side. First, the submissions for the appellant discussed the case law relating
to striking out and summary judgment. She was said to have a realistic prospect
of success based on issues of acquiescence and whether some of the alleged
breaches actually occurred, raising questions of fact requiring investigation
at trial. Reference was made to Shaw v Applegate [1977] 1 WLR 970, and Gafford
v Graham (1998) P & CR 73. The defence of acquiescence or estoppel
relied on three matters (para 37): works done since 2011 without prior
objection; the letter of 14 November 2014; and works done by other residents
ostensibly in breach of covenants but without any action being taken. No point
was taken on the standing of the company as claimant; nor was any specific
reference made to the allegations of malice. In the company’s submissions in
response (signed by Mr Hallpike of counsel, who has appeared also before the
Board), it was argued that the matters relied on did not establish an arguable
case of acquiescence. It is notable that counsel for neither party seems to
have thought it necessary to discuss the terms of any order or issues relating
to relief.
The judgment of Pemberton J
19.
So far as appears from the agreed statement of facts, and the papers
before the Board, the next event was the issue of the judgment of Pemberton J
on 7 December 2015. This decision was made on the papers without any form of
hearing. It is unnecessary to do more than refer to the main points in the
judgment. The judge noted without further discussion the interest of the
company, to which the lessor had “assumed all rights, duties and obligations
concerning the … townhouses” (para 1). Summarising the claim she said (paras
6-8) that the company’s complaint revolved around “[the appellant’s]
construction and/or modification to the external part of the leased unit” and
the work which “saw the erection of four pillars/columns which [the company]
says has completely changed the appearance of the building, detracting from the
uniformity of the Community …”. These works had been commenced “without receiving
prior consent from its board of directors, which was in breach of the covenants
and guidelines contained in the ‘Townhouse Community Guidelines’”. She added:
“I shall not detail here the
alleged works … Suffice it to say that the photographs produced by both
parties, tell the tale. The uniform appearance of the Community has been
compromised by the appellant’s works.”
20.
She then summarised the defence as one of “acquiesce and estoppel” (sic)
based on the fact that the appellant had received the Townhouse Community guidelines
only two days after the works were commenced; on “her oral discussions with
‘persons’ who were allegedly servants and/or agents of [the company], and that
they knew and could have seen that the works were being performed”; and that
the company did not object to the conduct of the complained works, or notify
her that she had to make a formal request”. She added: “[the appellant] also
alleged several other issues, but to my mind they are not of moment to this
matter” (para 11). (The matters of “no moment” seem to have included the
alleged works at other houses, which were not further referred to in the
judgment.)
21.
In the following paragraphs she discussed the defence as she understood
it, including the authorities relied on, arriving at “the inevitable
conclusion” (para 30) that the facts as pleaded could not support the position
that the company was “acquiescent in the offending actions and is therefore
estopped from bringing the action”. Under the heading of “Relief” (para 34),
she noted the forms of relief claimed, including the mandatory injunctions, and
observed that the appellant “did not see the need to treat with any of these
reliefs claimed” and had never denied the company was entitled to the reliefs
claimed. She accordingly made an order in the terms sought, which was duly
issued by the court on 4 March 2016.
The appeal
22.
On 11 January 2016 the appellant filed a notice of appeal to the Court
of Appeal, challenging the judge’s rejection of the possible defences of
acquiescence or estoppel, and claiming that there were serious issues to be
tried. By an amended notice dated 10 February 2016 she alleged in addition that
the company had failed to establish its locus to bring the claim, and also that
the judge had “failed to apply the appropriate principles which govern the
grant of discretionary relief”, in particular the need for evidence.
23.
The appellant’s appeal and application for leave to appeal out of time
were heard by the Court of Appeal (Archie CJ, Narine and Jones JJA) on 9 May
2016. The court seems not to have been supplied with copies of the record of
appeal, and so had to make do with a single copy provided by counsel to the
Chief Justice. The Board has the transcript of the argument, at the end of
which the Chief Justice gave a short extempore judgment in these terms:
“On the question of consent or
waiver, we do not believe that the letters of 18th and 20th can provide - to the
extent that that was the contemporaneous documentation before the court - any
possible support for the defences of consent or waiver. The comments of the judge
with relation to acquiescence in the way in which it was framed, were obviously
made in the context of how the case was before her, and so the question of
acquiescence by silence did not arise and did not have to be dealt with.
Further, on the question of locus standi, we think that [89 Holland
Park (Management Ltd) v Hicks [2013] EWHC 391 (Ch)] and section 67 [of
the Conveyancing and Law of Property Act cap 56:01] provide a complete answer. So
in those circumstances, we do not think that there is any real prospect, and
therefore we would not be minded to grant leave, and in any event, if you were
to consider this, we do not think there would be any justification for a stay.
So in all of the circumstances, the appeal is dismissed.”
Although the issue of works at other properties had been
raised in the submissions, it was not mentioned in the judgment. Nor was there any
discussion of the terms of relief.
24.
At a contested hearing on 6 June 2016, the Court of Appeal (Jamadar,
Smith and Bereaux JJA) granted the appellant conditional leave to appeal to the
Privy Council, and suspended the order of the judge pending determination of
the appeal.
Issues in the appeal to the Board
25.
The following issues have been agreed for determination by the Board:
a. Were the Court of Appeal and the judge wrong to
find that there was no defence to the claim? In particular:
i. Did the appellant put
forward a defence of acquiescence or waiver in relation to works alleged to
have been carried out without authorisation and in breach of the lease?
ii. Did the appellant put
forward a defence in relation to the special damages allegations and the nuisance
allegations?
iii. Did the appellant’s
defence identify grounds for refusing the injunctive relief sought by the respondent?
b. Were the Court of Appeal and the judge wrong to
find the matter fit for summary determination and grant the respondent the relief
it sought?
c. What is the effect of the fact that the respondent
is not a party to the lease; in particular, did the respondent have standing to
bring this claim to enforce restrictive covenants in the lease?
Discussion
26.
It is convenient first to dispose of the last point which in the Board’s
view is without merit. Mr Strang, counsel for the appellant, submits that the
company itself, having no interest in the land, had no title to bring the
claim. It should have been brought in the name of the lessor, for which the
company was agent. Technically, no doubt, Mr Strang is right. He is also right
that the case relied on by the Court of Appeal (89 Holland Park
(Management Ltd) v Hicks [2013] EWHR 391 (Ch)) does not assist, since it
was concerned only with the rights of successors in title or owners and
occupiers for the time being (under section 78 of the Law of Property Act
1925), neither of which categories applies to the company. However the point
was not taken in the High Court by counsel then instructed for the Appellant,
probably for the good reason that the defect had caused no prejudice and (as Mr
Strang accepts) could have been corrected by amendment. In the Board’s view it
was too late to take the point for the first time in the Court of Appeal, and
in any event it could and should have disposed of it on the same basis.
27.
Turning to the issue of acquiescence or waiver, questions (i) and (iii)
are closely linked and best considered together. As will be seen, where the
relief sought is mandatory in nature, analogous (and sometimes overlapping)
equitable principles come into play in determining both the entitlement to
relief and its form. For the appellant, Mr Strang submits in short that the
judge failed to understand or properly address the defence of acquiescence, and
its relevance both to entitlement to relief and to its form. She thought it
enough that the appellant knew of her obligations under the lease, and that the
respondent had not misrepresented the facts or the nature of the covenants. In
particular she wrongly regarded as irrelevant the assertion that the ten other
residents had carried out “consistent” alterations without approval or
objection. She also gave equitable relief in the form of mandatory injunctions
without adequately investigating the nature and effect of the alleged breaches
or their circumstances.
28.
Mr Strang relies principally on the law as stated by Farwell J in Chatsworth
Estates Co v Fewell [1931] 1 Ch 224. In that case properties within the
estate were subject to covenants, enforceable by the company, preventing their
use other than as private dwelling houses. The defendant was using his property
as a guest-house which was admittedly in breach of the covenants. He relied on
the acts and omissions of the company and its predecessors as a bar to
equitable relief by way of an injunction. The evidence showed that the company
or its predecessors had permitted breaches of covenants in several cases,
including permitting conversions to flats, and permitting at least four houses
to be turned into boarding-houses or hotels, and in other cases failing to
prevent (in some because they did not know of) houses being used as boarding
houses or guest houses. The judge noted references in the authorities to
concepts such as waiver or acquiescence, and continued, at p 231:
“It is in all cases a question of
degree. It is in many ways analogous to the doctrine of estoppel, and I think
it is a fair test to treat it in that way and ask, ‘Have the plaintiffs by
their acts and omissions represented to the defendant that the covenants are no
longer enforceable and that he is therefore entitled to use his house as a
guest house?’”
29.
Mr Strang also relies on the fact that here, unlike in that case, the
order sought was mandatory rather than prohibitory in form. He cites the
well-known statement by Buckley J in Charrington v Simons & Co Ltd [1970]
1 WLR 725, 730:
“Different considerations may, I
think, arise in a case where the court has to consider whether a defendant
should be compelled by a mandatory order to remedy a breach of contract which
he has committed from those which would arise if the question were whether the
court should restrain a threatened breach of contract. To the latter case the
principle enunciated by Lord Cairns LC in Doherty v Allman, 3 App Cas
709, 710, 720, may apply in its full rigour. Where a mandatory order is sought
the court must consider whether in the circumstances as they exist after the
breach a mandatory order, and, if so, what kind of mandatory order, will
produce a fair result. In this connection the court must, in my judgment, take
into consideration amongst other relevant circumstances the benefit which the
order will confer on the plaintiff and the detriment which it will cause the
defendant. A plaintiff should not, of course, be deprived of relief to which he
is justly entitled merely because it would be disadvantageous to the defendant.
On the other hand, he should not be permitted to insist on a form of relief
which will confer no appreciable benefit on himself and will be materially
detrimental to the defendant.”
30.
That passage was cited with approval by Megarry J in Shepherd Homes
Ltd v Sandham [1971] Ch 340, 351, where he said:
“… although it may not be possible
to state in any comprehensive way the grounds upon which the court will refuse
to grant a mandatory injunction in such cases at the trial, they at least
include the triviality of the damage to the plaintiff and the existence of a
disproportion between the detriment that the injunction would inflict on the
defendant and the benefit that it would confer on the plaintiff. The basic
concept is that of producing a ‘fair result’, and this involves the exercise of
a judicial discretion.”
It seems that neither of these authorities was cited to the
judge.
31.
In considering these linked issues, the Board will start by looking at
the general principles, before turning to the detail of the alleged breaches
and the order made in respect of them. On the issue of waiver or acquiescence
the Board is content to adopt the approach of Farwell J in the Chatsworth
Estates case. It finds the authority of direct assistance, because like the
present case it concerned enforcement of covenants by an estate company for the
protection of an estate as a whole, rather than by an individual property owner
against a neighbour (as in other cases cited below, such as Gafford v Graham
(1998) 77 P & CR 73).
32.
However, that consideration tends to point against Mr Strang’s
submission. Farwell J recognised that the company had not been “unduly
insistent” on the observance of the covenants, nor had it made its business to
conduct inquisitorial examinations unless a matter was drawn to its attention
by complaints of neighbours or otherwise (p 230). The issue was not whether
breaches had been overlooked in individual cases but whether those omissions
could be said to amount in effect to a representation that the covenants were
no longer enforceable. On the facts of the case, Farwell J held that the
company was not disentitled by its past actions from an injunction to restrain
the defendant’s use. Not only were there particular explanations for at least
some of the cases, but to debar relief would make it extremely difficult for
the company in future to prevent other persons carrying on guesthouses.
Further, it was a clear case for an injunction without the need to show substantial
damage, at p 233:
“Damages are no remedy because the
object of the covenant is not to make persons pay for committing breaches but
to prevent these breaches.”
33.
Applying that approach to the present case, the Board agrees with the
judge and the Court of Appeal that the exchanges in October and November 2014
cannot possibly be interpreted as amounting to representations by the company
that the covenants in the lease requiring approval for works were no longer
effective either in general or in relation to the appellant’s proposed works.
The mere failure of two officers to make immediate objection in October 2014
when notified of works due to start within in about a week, without any
detailed information of their nature cannot be interpreted as a representation
of any kind on behalf of the company. The letter of 18 November 2014 contained
no such representation, express or implied, and in any event cannot have been
relied on as such by the appellant, being received at a time when most of the
work had been completed.
34.
It is however unfortunate that the judge and the Court of Appeal failed
entirely to address the allegations relating to works permitted or not objected
to on other parts of the estate. Had they been referred to the Chatsworth
Estates case, it is unlikely that they could have simply dismissed them as
irrelevant. It is also unclear to what extent the judge had regard to the
detail of the alleged breaches, apart from the “erection of four
pillars/columns”, which she specifically identified as having changed the
appearance of the building and detracted from the uniformity of the Community.
That is a proposition which she thought amply demonstrated by the photographs.
On that aspect the Board, having been shown the photographs, sees no reason to
disagree. The works to other properties specified in the defence include some
columns at the rear, but nothing apparently comparable at the front.
35.
However, the same clarity cannot be attached to the other works of which
complaint is made. As has been seen they included works to the rear of the
building and to the interior. They also included works which, according to the
Appellant, had been carried out without objection two years before. On the face
of the pleadings there was an arguable case that these were no different in
kind to works which had been accepted without objection on other properties.
Whether or not this gave rise to a case of waiver in the sense defined by
Farwell J, they were at least arguably relevant to the scope of any mandatory
order. It is difficult to see how fairness (in the sense described by Megarry
J) would be served by an order which required the Appellant to carry out such
works without any investigation of their significance, or how they compared to
works accepted without objection on other properties on the estate. In so far
as the guidelines are incorporated into the terms of the injunctions, there may
also to be an issue as to their status and effect, and whether they were
adequately drawn to her attention in advance of the works.
36.
Mr Hallpike did not seriously dispute the fact that works as described
in the defence had been carried out without objection at other properties, but
he emphasised that the company’s real concern was with the prominent works to
the front of the building. If that is so, it is unfortunate that when formulating
its detailed case, and applying for summary judgment, the company made no
attempt to draw such distinctions. Symptomatic of the same lack of
discrimination seems to be the inclusion at that stage of the claims for
damages, the factual basis of which was obscure, and in respect of which the
Appellant had raised apparently arguable defences (such as that gate had been
painted with express permission).
Conclusion
37.
This is not a case which should have found its way to the Board.
Although hard-fought it was a conventional neighbourhood dispute, raising no
significant issue of general law or policy. The Board regrets the cost and
delay with has resulted. With hindsight it seems unfortunate that the decision
was made to deal with it without any form of hearing even on the detail of the
relief. The Board was given no information about the legal basis of the
procedure, and it notes that no objection appears to have been taken to it by
either party at the time. However, that did not absolve the judge of her duty
to consider, not just the principle of the claim, but also the detail of the
alleged breaches and of the relief sought.
38.
On what may have been seen as the main issue - the carrying out of
prominent works to the front of the building - the judge was entitled to find
that the defence had no merit. However, some at least of the overlapping issues
of liability and relief relating to other alleged breaches were much more
arguable. They were left unaddressed by both the judge and the Court of Appeal.
To this extent the appeal must succeed, and the case must be remitted to the
High Court for resolution of the disputed issues.
39.
The Board has considered whether it would be appropriate to leave in
place the mandatory injunction in respect at least of the four pillars at the
front of the building. However, it does not feel able, on the material before
it, to make a principled distinction between the different parts of the
mandatory injunction, no such distinction having been drawn in the statement of
case or by the judge. Furthermore, if the Appellant is to be required to carry
out substantial works of reinstatement, it seems fair to her (and perhaps
preferable for her neighbours) that the full extent of her obligation is
clearly defined at the outset and that she is able to do the works at one time.
40.
For these reasons, the appeal will be allowed and the case remitted to
the High Court.
