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You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Girls Day School Trust (1872) v Skipton House [2001] EWLands LP_19_1999 (23 November 2001) URL: http://www.bailii.org/ew/cases/EWLands/2001/LP_19_1999.html Cite as: [2001] EWLands LP_19_1999 |
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[2001] EWLands LP_19_1999 (23 November 2001)
LP/19/1999
LANDS TRIBUNAL ACT 1949
RESTRICTIVE COVENANTS - restriction on user - former house - change of use to school in 1945 in breach of restriction - changes in neighbourhood and property - whether restriction enforceable - whether obsolete - whether practical benefits of substantial value or advantage secured to objectors - public interest - restrictions regarding building line and nuisances - proposed redevelopment - public interest - modifications ordered - Law of Property Act 1925, s 84(1)(a)(aa) (1A) (1B)
IN THE MATTER of an APPLICATION under SECTION 84(1) of the
LAW OF PROPERTY ACT 1925
by
THE GIRLS DAY SCHOOL TRUST (1872)
Re: Skipton House, 4 Cleveland Road, Ealing W13
Before: P H Clarke FRICS
Sitting at 48/49 Chancery Lane, London WC2A 1JR on 15-18 August 2000
The following cases are referred to in this decision:
Re Abbey Homesteads (Developments) Ltd (1987) 53 P&CR 1
Re Martin (1988) 57 P&CR 119
Re Truman, Hanbury, Buxton & Co Ltd [1956] 1 QB 261
Sayers v Collyer (1884) 28 Ch D 103
Shaw v Applegate [1977] 1 WLR 970
Re Findlay & Co Ltd (1963) 15 P&CR 94
Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594
Re Hunt (1996) 73 P&CR 126
Re Sideras Properties (UK) Ltd (1999) (unreported) (LP/43/97)
Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133
Gafford v Graham (1999) 77 P&CR 73
Re Bass Ltd (1973) 26 P&CR 156
Re Solarfilms (Sales) Ltd (1993) 67 P&CR 110
Re Stevens (1962) 14 P&CR 59
Re Bromor Properties Ltd (1995) 70 P&CR 569
McMorris v Brown [1998] 3 WLR 971
Re Ghey & Galton [1957] 2 QB 650
Re Snaith & Dolding (1995) 71 P&CR 104
Wood v Cooper [1894] 3 Ch 671
Lord Manners v Johnson (1875) 1 ChD 673
Re Williams (1988) 55 P&CR 401
Re Tarhale Ltd (1990) 60 P&CR 368
Re Fletcher Sheltered Homes Ltd (1991) (unreported) (LP/56/87)
Re Peacock & Bartolomeo (2000) (unreported) (LP/37/99)
Re Mezmetals Ltd (1989) (unreported) (LP/66/87)
Re Clement & Clement (1998) (unreported) (LP/6/97)
Re North (1998) 75 P&CR 117
Re Cowderoy (1957) 9 P&CR 522
Re Lloyd & Lloyd (1993) 66 P&CR 112
Re O'Reilly (1993) 66 P&CR) 485
Re Brierfield (1976) 35 P&CR 124
Re SJC Construction Co Ltd (1974) 28 P&CR 200; (1975) 29 P&CR 322, CA
Re Wallace & Co (1993) 66 P&CR 124
Re Hopcraft (1993) 66 P&CR 475
Re Mansfield District Council (1976) 33 P&CR 141
Mr Jonathan Milner instructed by Mrs Linda Humphreys-Evans, legal adviser to The Girls Day School Trust (1872) for the applicants.
Dr Gillian Reed in person and, with leave of the Tribunal, for some of the objectors.
Miss Linda Dadak, an objector, in person.
The other objectors did not appear and were not represented.
DECISION OF THE LANDS TRIBUNAL
FACTS
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road in front than the building line shewn on the said plan
TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only
NUISANCES No bricks shall be made on any lot and nothing shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St. Stephens Park Estate Ealing or to the purchaser of any other lot'
I will refer to these restrictions as the 'building line', 'trades' and 'nuisances' restrictions respectively.
'Demolition of existing educational building (4 Cleveland Road) and existing library and stores and construction of new swimming pool and three-storey arts block, a bridge link at first floor level to existing school building. Formation of additional parking area on existing forecourt.'
I will refer to this development as 'the redevelopment of Skipton House'. The accommodation in the new building will comprise a swimming pool with changing rooms and ancillary accommodation in the basement; a recital room on the ground floor; music and practice rooms and three classrooms on the mezzanine floor; and sixth form common rooms and art rooms on the first floor, with a bridge link to the main school.
| 26 January 1953 | Rebuilding of music room, science laboratory and room, science laboratory and boiler house. |
| 4 July 1970 | Erection of library and sixth form unit (Skipton House). |
| 16 March 1977 | Erection of three-storey block to provide science block and re-siting of classroom. |
| 12 December 1983 | Erection of second floor extension to school building to provide two classrooms. |
| 16 January 1984 | Erection of single-storey extension to rear of school to provide assembly hall. |
| 7 March 1991 | Erection of single-storey extension to dining room (Junior School). |
| 19 December 1991 | Erection of extensions at ground, first and second floor levels to provide seven new form rooms, assembly hall, additional living space and ancillary accommodation. |
| 4 April 1996 | Erection of three-storey extension to rear of laboratory block. |
| 4 June 1998 | Construction of verandas with glazed canopies at ground floor, single-storey extension and glazed infill extension at first and second floor levels (related to the planning permission for the redevelopment of Skipton House). |
TRADES RESTRICTION
'TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only save for the piece of land comprised in a conveyance dated 18 July 1902 between the House Property and Investment Company (1) and Charity Mary Georgina Skipton (2) being land on the corner of Cleveland Road/east corner of Wimborne Gardens which lots and all erections thereon may be used for the purpose of an educational institution'
Section 84(1)(a) of the 1925 Act
'This part of the subsection seems to be directed not to matters of title and the right to enforce the restriction, but to the question whether the restrictions affecting a given property, situated where it is situated, have been stultified by events on the surrounding premises.'
'The general words must be construed ejusdem generis with the particular words, and it seems to me that the matters relied on by the Lands Tribunal come nowhere near the genus.'
The matters relied on by the Tribunal in that case were the making of a compulsory purchase order, the service of notice to treat and entry, and the grant of planning permission for the development of the land by the acquiring authority. The expression 'other circumstances' (the general words) would therefore seem to be restricted to other circumstances regarding the property or the neighbourhood. In Re Martin the Court of Appeal held that the grant of planning permission is merely a circumstance that the Lands Tribunal should take into account under section 84: it does not necessarily require the Tribunal to discharge the covenant. It can be implied from this decision that, although the grant of planning permission is a matter to be taken into account by the Tribunal when considering an application under section 84 (1)(aa) and (1A), or when exercising its discretion after the issue of jurisdiction has been determined, it is not within the 'other circumstances' in section 84 (1)(a). The grant of planning permission does not make a restriction obsolete although development carried out pursuant to such a permission may be a material change to the property or neighbourhood to be taken into account under section 84(1)(a). In my view, however, the failure of those with the benefit of the restriction to enforce it after 1945 in respect of the change of use of Skipton House is a material circumstance which I can take into account.
'It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word "obsolete" is used in section 84(1)(a).'
'The authorities establish the principle that there may be such an amount of acquiescence as may bar the right of a covenantee to enforce his covenants. I mean acquiescence as distinguished from delay, for a shorter period is sufficient to bar the enforcement of rights in the case of acquiescence than in a case of mere delay.'
Bowen LJ said (page 108):
'.... a person who is entitled to the benefit of a restrictive covenant may, by his conduct or omissions, put himself in such an altered relation to the person bound by it as makes it manifestly unjust for him to ask a Court to insist on its enforcement by injunction. It was decided on equitable grounds that in such case there would be an equity against the plaintiff which would bar that particular relief.'
'The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.'
This test was agreed by Goff LJ (at page 780C): 'the test is whether, in the circumstances, it has become unconscionable for the plaintiff to rely upon his legal right.'
'The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared ....'
'... here the inquiry must be whether, in all the circumstances, it would be unconscionable for the plaintiff to continue to seek to enforce the rights which he undoubtedly had in 1986 to complain of the conversion of the bungalow and the extension to the barn. On the facts found or referred to by the judge, I am unable to answer that question except in the affirmative. The plaintiff knew what his rights were. He never made any complaint or objection to the defendant at the time. His objection to the application for planning permission in respect of the bungalow and his complaint to his solicitors can avail him nothing. He made no complaint to the plaintiff until the solicitors wrote their letter of March 7, 1989, about three years after the acts complained of. He only complained of them then because of the much more serious threat presented by the proposed construction of the riding school. Before that he had effectively treated the conversion of the bungalow and the extension to the barn as incidents which were closed.
For these reasons, I would hold that the plaintiff acquiesced in the conversion of the bungalow and the extension to the barn, his acquiescence being a bar to all relief in respect of those matters.'
'In view of the period for which the site has been used for trade, and the erection of shops on the adjoining site, I am satisfied that the covenant is obsolete...
The fact that, since 1929, the land has been used for shops without complaint or objection of any kind, justifies, in my view, an implied agreement by the person entitled to the benefit of the covenant to the modification now sought.'
Section 84(1)(aa) of the 1925 Act
(i) The preservation intact of a scheme of mutual covenants on the Estate, where there is a presumption that modification would not be granted with a consequent greater burden of proof on the applicants (Re Bromor Properties Ltd, Re Hunt).
(ii) The prevention of a non-residential use which would set a precedent and lead to further expansion by the School or the introduction of other non-residential uses onto the Estate (the thin end of the wedge) (McMorris v Brown, Re Ghey and Galton, Re Snaith and Dolding, Re Hunt).
(iii) The removal of anxiety regarding future development (Wood v Cooper, Lord Manners v Johnson).
(iv) The prevention of nuisance and annoyance due to the educational use and the construction of a new building on Skipton House (Wood v Cooper, Re Williams, Re Tarhale Ltd, Re Fletcher Sheltered Homes Ltd).
(v) Greater protection from development than is given by planning control (Re Martin, Re Peacock and Bartolomeo).
(vi) The prevention of the redevelopment of Skipton House and its disadvantages, particularly the deep excavation (Re Mezmetals Ltd, Re Clement and Clement).
(vii) The preservation of the view of Skipton House, particularly the trees (Re North).
(viii) Prevention of the loss of amenity due to the educational use, particularly parking (Re Cowderoy).
'16. The use of No. 17 has continued now for over 6 years, openly and to the objectors' knowledge. I accept the evidence is that they were unaware of their rights under the building scheme before 1996 but upon their becoming aware of their rights in the course of objecting to the proposed use solicitors on their behalf wrote threatening action "if the development authorised by the planning consent is proceeded with". I think that they thereby accepted the continuance of the existing use of No. 17. The applicant has brought this application in its present form, which I have spent some time in this Decision analysing, on the basis that the existing use is not in question.
17. Acquiescence provides a defence to a claim for injunctive relief for breach of covenant, the test of acquiescence being "whether, in all the circumstances, it would be unconscionable for the plaintiff to seek to enforce the right which he undoubtedly had" (see per Nourse LJ in Gafford v Graham ... at p.81). Of course, Mr Scott is right that there may be circumstances which have not been explored before me, that might lead to a different conclusion, but it does appear to me that in the face of the correspondence to which I have referred, it would now be unconscionable for the objectors to seek injunctive relief to restrain the existing use of No. 17. I therefore conclude that I should assume that such use may be continued notwithstanding the covenant, for whose modification to permit the combined use of the application site, the applicant applies.'
When considering whether practical benefits were secured by the impeding of the proposed use of the other property (no. 15) the member assumed that the existing use of no. 17 may be continued notwithstanding the restriction. He therefore considered the practical benefits solely in relation to no. 15, the proposed use of which could be impeded by the restriction. As I understand the decision, Judge Rich concluded, in effect, that the restriction in respect of no. 17 secured no benefits because it was unenforceable. He considered only the benefits which may have been secured by the restriction affecting no. 15.
'In my judgement the restriction in impeding that user is contrary to the public interest.
I am conscious that the Lands Tribunal in considering the public interest point on many occasions has never before modified or discharged a covenant on this ground in similar cases. The only instances where the public interest point has succeeded are the cases of SJC Construction Ltd, and a recent decision of the President which is unreported. Both cases were concerned with a situation where enforcement of the covenant would necessarily involve demolition of buildings already erected.
In the present case, however, the evidence is overwhelming that:
(1) there is a government policy of long standing whereby mental hospitals and institutions are closing and patients are being discharged into community care;
(2) pursuit of that policy requires the provision of a range of care homes in a community setting for treatment and rehabilitation of the victims of mental illness;
(3) the need for a facility of the kind proposed in the Worthing area as part of the range of necessary provision is "desperate";
(4) the subject property is well located and in all respects suitable to assist in meeting that need; and
(5) the owners are well qualified and able and willing to adapt the property for that use.
In the light of these findings, I am satisfied that the restrictive covenant in preventing that use is contrary to the public interest, and I would be prepared to grant the proposed modification on this ground.'
(i) The applicants are the largest group of independent schools in the United Kingdom, founded in 1872, now a limited company with charitable status. They are not a commercial organisation trading for profit.
(ii) Notting Hill and Ealing High School was founded in 1873 and relocated to Ealing in 1931. The Trust acquired Skipton House in 1945 and has used it for educational purposes as part of the School since that time.
(iii) The School serves a local need: just under 86 per cent of the pupils live in the London Borough of Ealing..
(iv) Although the educational use of Skipton House commenced in breach of the restriction, no challenge was made until November 1998 and then only in the context of opposition to the proposed redevelopment.
(v) Government policy in education (notably curriculum changes and the introduction of AS levels) and other changes have produced a growing demand for educational space.
(vi) This demand can be met by the continuing use of Skipton House for educational purposes as part of the School. There is no evidence that it could be met by the use of other properties as conveniently situated in relation to the School, or at all.
(vii) If the restriction causes the educational use of Skipton House to cease, the effect on the School would be catastrophic and have a serious effect on the pupils' education.
Conclusion
BUILDING LINE RESTRICTION
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road than the building line shown on the said plan save for an erection built in accordance with planning permission CDG/TPHP 02143/23 dated 3 September 1998'
The additional words to effect the modification are in italics. The building line for Skipton House was originally 30 feet from Cleveland Road; it was amended to 40 feet under the conveyance dated 18 July 1902. The application for the modification of this restriction is consequential on the redevelopment of Skipton House. The parts of the development in front of the building line are steps leading to the front entrance of the new building and two pillars. The front wall of the new building will not be in front of the building line.
NUISANCES RESTRICTION
'NUISANCES No bricks shall be made on any lot and nothing save for such articles temporary buildings structures and activities associated with the alterations demolition or construction of any erection or in accordance with the implementation of the planning permission CDG/TPHP 02143/23 dated 3 September 1998 shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St Stephens Park Estate Ealing or to the purchaser of any other lot'
The additional words to give effect to this modification are in italics. This modification is also consequential on the redevelopment of Skipton House and received little attention at the hearing. Its purpose is to allow the erection of builders' huts, the storage of materials and other activities which will occur during the redevelopment.
'The Council's Environmental Health Service has powers to control noise and disturbance during building works. It considers that normal and reasonable working hours for building sites are from 8.00 a.m. to 6.00 p.m. Monday to Friday, from 8.00 a.m. to 1.00 p.m. on Saturdays and not at all on Sundays. If any activities take place on the site beyond these times which give rise to noise audible outside the site the Council is likely to take action requiring these activities to cease.'
ORDER
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road than the building line shown on the said plan save for an erection built in accordance with planning permission CDG/TPHP 02143/23 dated 3 September 1998
TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only save for the piece of land comprised in a conveyance dated 18 July 1902 between the House Property & Investment Company (1) and Charity Mary Georgina Skipton (2) being land on the corner of Cleveland Road/east corner Wimborne Gardens which lot and all erections thereon may be used for the purpose of an educational institution
NUISANCES No bricks shall be made on any lot and nothing save for such articles temporary buildings structures and activities associated with the alterations demolition or construction of any erection or in accordance with the implementation of the planning permission CDG/TPHP 02143/23 dated 3 September 1998 shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St Stephens Park Estate Ealing or to the purchaser of any other lot'
PROCEDURAL MATTERS
DATED
(Signed P H Clarke)
ADDENDUM
DATED:
(Signed: P H Clarke)
