UT Neutral citation number: [2010] UKUT 235 (LC)

LT Case Number: LP/19/2009

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – preliminary issues – whether objectors entitled to benefit of particular restrictions – whether particular restriction spent

                              IN THE MATTER OF AN APPLICATION UNDER THE

                                                  LAW OF PROPERTY ACT 1925

                                                                           BY                                                                    

                                                    HEIDI SUSAN WOODHOUSE                                            

                                                                           and

                                                       ANDREW WOODHOUSE

                                                           Re: Hutchins Cottage,

                                                                  Horley Row,

                                                                  Horley

                                                                  Surrey RH6 8DF

                                                           Before: The President

                                  Sitting at 43-45 Bedford Square, London WC1B 3AS

                                                                  on 7 July 2010

Colin Challenger instructed by direct professional access for the applicants

Mr Martin Playford for himself and, with leave of the Tribunal, for the other objectors

The following cases are referred to in this decision:

Bell v Norman C Ashton Ltd (1956) 7 P & CR 359

Crest Nicholson Residential (South) Ltd v McAllister [2008] 1 All ER

                                           DECISION ON PRELIMINARY ISSUES

1.           The applicants in this case seek the discharge of a number of restrictions contained in a conveyance of the application land to their predecessors in title.  The conveyance, of 7 October 1933, was from Richard Constable Blundell “of Hutchins Horley Row Horley in the County of Surrey” as vendor to William Victor Wickens of Hutchins Cottage, Horley Row.  The conveyance contained a covenant by the purchaser for himself and his successors in title “for the benefit of the adjoining and neighbouring lands of the Vendor” to observe the stipulations and restrictions contained in the First Schedule.  The application relates to the restrictions that are numbered 2 to 7, which are as follows:

“2.     No excavation shall be made on and no earth sand gravel or other material removed from the land except such as may be reasonably necessary for the foundations of buildings

3.       Not more than two houses shall at any time be erected on the land

4.       No building shall at any time without the previous consent of the Vendor be used for any trade manufacture or business or otherwise than as a private dwellinghouse and no hoarding or advertisement shall ever be erected or displayed (except notices for letting or sale)

5.       No booth hut swings caravan or house on wheels adapted for or used as a dwelling shall ever be placed or allowed to be or remain on the land

6.       No part of the land coloured red on the plan shall ever be used as a road or way or as part of a road or way

7.       No new building shall ever be erected and no enlargement of or structural alteration to the existing building shall be made except according to plans and elevations previously approved in writing by the Vendor or the owners for the time being of the Vendors adjoining property known as Hutchins or his or their Surveyor such consent not to be unreasonably withheld.”

2.           At the time of the conveyance it appears that the adjoining and neighbouring land of the vendor consisted of a house with a garden and orchard and agricultural land extending to about 22 acres.  The agricultural land is now fully developed with housing.

3.           The application was advertised, and six objections were received, two of which have now been withdrawn.  Of the outstanding objectors, Mr and Mrs Playford own part of the house, Hutchins (their part is now called Hutchins Farm), and the others, Mr and Mrs Keller, Mrs Pipe and Mr Pattison, own houses that have been built on the former agricultural land on an estate road called Kidworth Close.  The applicants did not accept that any of the objectors other than Mr and Mr Playford were entitled to the benefit of the restrictions.  Having seen documentation produced by the objectors, however, the applicants accepted that each of the objectors was entitled to the benefit of some of the restrictions.

4.           Today’s hearing was fixed to determine under section 84(3A) which if any of the objectors should be admitted to oppose the application.  There is, however, no dispute that all should be admitted.  The applicants nevertheless maintain that certain of the applicants are not entitled to enforce particular restrictions in respect of which their objections were made, and the hearing was therefore treated as a preliminary hearing to deal with these issues of entitlement.  All of the objectors were represented by Mr Playford, and none of them other than he was present.

5.           All the objectors object in relation to restrictions 3 and 6.  In addition Mr and Mrs Playford object in relation to restriction 4, as do Mr and Mrs Keller and Mr Pattison.  Mr Pattison alone objects in relation to restriction 5, and Mrs Pipe alone objects in relation to restriction 7.  It is the entitlement to object in relation to restrictions 4 and 7 that the applicants contest, and I was provided with documentary material, and I heard submissions, on these matters.

6.           Condition 4 is in two parts.  The first part provides that “No building shall at any time without the previous consent of the Vendor be used for any trade manufacture or business or otherwise than as a private dwellinghouse.”  The second part provides that “no hoarding or advertisement shall ever be erected or displayed (except notices for letting or sale).”  Mr Colin Challenger for the applicants accepts that the objectors are entitled to enforce the second part of this restriction.  He contends, however, that the first part no longer has any effect because the vendor is now dead.

7.           The problem that arises in the case of a restriction prohibiting works or uses without the consent of a named person who has ceased to exist has been considered in a number of cases.  The effect may be either to render the prohibition absolute or, alternatively, to make it of no further application; and which of these is the effect is a matter that depends on the construction of the instrument in question.  There is, however, authority that is strongly persuasive in the present case.  In Bell v Norman C Ashton Ltd (1956) 7 P & CR 359 the relevant covenant provided:

“Except with the written consent of the vendors … no part of the estate or any building thereon shall be used for any other purpose than that of a garden or other dwelling-house …”

8.           In his judgment at 365, Harman J said about this provision:

“It is to be noted that it does not say ‘Except with the written consent of the vendors, their heirs or assigns,’ but ‘Except with the written consent of the vendors.’  When those words are used, whatever they may mean, it seems to me that the only persons who could consent are the vendors, and, they not being available, there is no dispensing power to which the defendants can resort.”

9.           In my judgment restriction 4 in the present case is to be construed similarly, and I think that force is added to the conclusion that this is the correct construction by the second part of the restriction.  It would be surprising if, while the prohibition against the erection of hoardings or advertisement was good for all time, the prohibition against trade etc use terminated with the death of the vendor.  The provision for consent in the first part of the restriction does not suggest, in my view, that the restriction against trade etc use was imposed simply for the benefit of the vendor.  Rather it is a provision that applies “at any time” but with a dispensing power on the part of the vendor.  When the vendor dies the dispensing provision ceases to apply.  Moreover the provision contrasts with the consent provision in restriction 7 in respect of the approval of plans, where the power to consent is given to the vendor “or the owners for the time being” of Hutchins.

10.        In the case of a covenant requiring the vendor’s approval of building plans where no provision is made in the event of the vendor’s death (or, if a company, its dissolution) there is a strong argument for construing the restriction as one that becomes spent if the vendor dies (or is dissolved): see Crest Nicholson Residential (South) Ltd v McAllister [2008] 1 All ER 46 per Neuberger J at paras 39 to 42.  These considerations (which would have applied in the case of restriction 7, had not it provided as it did) do not, however, apply to the type of use restriction that is contained in restriction 4.

11.        In relation to restriction 7 Mr Challenger submits that Mrs Pipe does not have the benefit of the restriction.  Approval of plans is required from the vendor “or the owners for the time being of the Vendor’s adjoining property known as Hutchins”.  Mr Challenger submits that “the adjoining property known as Hutchins” does not include the former agricultural land on which Mrs Pipe’s house stands.  That submission is correct, in my judgment.  The generality of the benefit provision of the covenant – for “the adjoining and neighbouring lands of the Vendor” – contrasts with the particular provision in the restriction.  This suggests that the “adjoining property known as Hutchins” is a more limited area than “the adjoining and neighbouring lands of the Vendor”.  The plan attached to the conveyance has the inscription “Hutchins” in the position, to the west of the land conveyed, occupied by the house known as Hutchins (just as it has “School House” and “Old Schools” inscribed to the south and “Richard C Blundell Esq” beyond two other boundaries).  This suggests that “the adjoining property known as Hutchins” is the house of that name and its curtilage.  There is moreover evidence that the name “Hutchins” may at the time have applied to the house rather than to the totality of the house and the agricultural land held with it.  In the survey produced for the purposes of the Duty on Land Values (at some time after 1910) there are separate entries for “Hutchins, Horley Row” and “Hutchins Farm, Horley Row”, which together made up the 22 acres that belonged to the vendor in 1933.  Mrs Pipe’s house stands on the Richard C Blundell Esq land on the conveyance plan and on the Hutchins Farm land in the DOLV survey.

12.        On the preliminary issues, therefore, I decide as follows for the purpose of the application for discharge of the restrictions:

(a)        Restriction 4 subsists in both its parts; the objectors and each of them are entitled to enforce it; and the power on the part of the vendor to consent has lapsed.

(b)        Mrs Pipe is not entitled to enforce restriction 7.

13.        At the hearing directions for the further conduct of the proceedings, including a stay to enable mediation to take place, were discussed and I have made an order dealing with these matters.  Mr Challenger submitted that the costs of today should be reserved.  I accept this.  The outcome of today’s hearing should be considered for this purpose in the light of the final decision in this case.

Dated 7 July 2010

George Bartlett QC, President