Jones & Anor v Oven & Anor, Court of Appeal - Civil Division, August 10, 2018, [2018] EWCA Civ 1895

Resolution Date:August 10, 2018
Issuing Organization:Civil Division
Actores:Jones & Anor v Oven & Anor
 
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Case No: A3/2017/1983

Neutral Citation Number: [2018] EWCA Civ 1895

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

His Honour Judge Paul Matthews (sitting as a Judge of the High Court)

[2017] EWHC 1647 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/08/2018

Before :

LORD JUSTICE NEWEY

and

SIR BERNARD RIX

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Between:

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Mr Timothy Morshead QC (instructed by Birketts LLP) for the Appellants

Mr Andrew Butler QC (instructed by Birkett Long LLP) for the Respondents

Hearing date: 24 July 2018

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JudgmentLord Justice Newey:

  1. The parties to this appeal own adjoining properties near Little Baddow in Essex. The appellants, Mr and Mrs Jones, are the proprietors of New Lodge Farm, which is registered under title number EX342457. Neighbouring premises now known as ``Bremners'' and registered under title number EX788526 belong to the respondents, Mr and Mrs Oven.

  2. The litigation concerns a strip of land of four metres' width on the eastern edge of Bremners and immediately adjacent to New Lodge Farm (``the Strip''). Mr and Mrs Oven are contractually obliged to transfer the Strip to Mr and Mrs Jones pursuant to a provision in the transfer under which they acquired Bremners on 16 December 2005 (``the 2005 Transfer''). The question raised by the present appeal is whether, once the Strip has been transferred to Mr and Mrs Jones, it will be subject to restrictive covenants that they entered into in 2002-2003, when they sold land including the Strip to City & Country Residential Limited (``CCR'').

  3. Mr and Mrs Jones entered into two contracts with CCR on 7 November 2002. Both related to land then comprised in New Lodge Farm. One of them (``the Unconditional Contract'') provided for the sale to CCR of land hatched red on an attached plan (``the Red Land'') and was completed on 15 November 2002. The transfer included a covenant by Mr and Mrs Jones (as the ``Transferor'') in the following terms:

    ``The Transferor (jointly and severally) (and which expression shall include their successors in title) covenant with the Transferee (and its successors in title) set out herein such covenants to bind Title No. EX342457 and each and every part thereof and to benefit the Property and the land comprised in Title No. EX488252 and each and every part thereof Together With any additional land acquired by the Transferee namely: -

    (a) Not to do or allow to be done on the Transferor's Retained Land anything which may unreasonably be or grow to be a nuisance or annoyance to the Transferee or its successors in title in connection with the use by the Transferee and its successors in title of the land now comprising Title No. EX488252 and the Property and any additional or other lands acquired by the Transferee (`the Transferee's land') and `nuisance and annoyance' includes anything which materially affects the use and enjoyment of the Buyer's Land for residential purposes Provided That nothing herein shall restrict:-

    (i) the use of any buildings on the Transferor's Retained Land for recreational uses ancillary to the Transferor's use and enjoyment of the dwelling house known as New Lodge Farm or the use of such buildings for commercial stabling; or

    (ii) the use of any land for schooling of horses; or

    (iii) the use of any land for residential purposes

    (b) That there will not be at any time any storage of any materials of a noxious or offensive nature on the Transferor's Retained Land

    (c) Any buildings now or hereafter located on the Transferor's Retained Land will not be used for the keeping of agricultural livestock save for equines...''

    The ``Property'' was the Red Land, while the ``Transferor's Retained Land'' referred to ``the land hatched blue on [the attached plan]'' (``the Blue Land''), which lay just to the east of the Red Land in New Lodge Farm. The Strip formed part of the Blue Land.

  4. The other contract of 7 November 2002 (``the Conditional Contract'') provided for the sale to CCR of land hatched green on an attached plan (``the Green Land'') subject to a grant of planning permission. The Green Land was part of the Blue Land, abutted the Red Land and encompassed the Strip. By clause 6 of the special conditions, the transfer was to contain the provisions set out in the first schedule, which included a covenant on the part of Mr and Mrs Jones in terms corresponding to those quoted in the previous paragraph.

  5. Clause 8 of the special conditions provided for the re-transfer of the Strip in certain circumstances. The clause had its origins in a barn (or barns) which straddled the boundary between the Green Land and the balance of the Blue Land. As the Judge explained (in paragraph 24 of his judgment):

    ``The eastern barn (or part of barn) was on the land retained by [Mr and Mrs Jones], and still exists today. The western barn (or part) was part of the green land and was sold to CCR by the second, conditional contract.''

  6. Clause 8 of the special conditions was to apply if the western barn (or part) (``the Western Barn'') standing on the Green Land was demolished. It was in these terms:

    ``In the event of the Buyer or its successors in title

    (i) voluntarily; or

    (ii) in order to comply with Planning Authority requirements and of a planning consent obtained by the Buyer and being implemented by the Buyer

    demolishing that part of the barn shown edged brown on Plan A the Buyer shall at no cost to the Seller transfer to the Seller the land having a width of four metres between the points A, B, C and D shown cross hatched black on the plan marked A within twenty eight days of the demolition of that part of the said barn and thereafter erect a fence one metre high...

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