Purchaser takes conveyance in 1970 subject to restrictive covenant in conveyance of 1961, applies in 1972 for modification–There is no principle to be found in the authorities by which an application of the kind cannot be made so soon after purchase–Indeed, Re Wickins’s Application (1962) 183 Estates Gazette 541 shows that it can–Purchaser’s application remitted to Lands Tribunal for rehearing and a full decision on the merits
This was an
appeal by Mr Robert Keith Jones and his wife, Mrs Patricia Iris Jones, of The
Hazards, Drysgol Road, Radyr, Cardiff, against a decision of the Lands Tribunal
dated June 28 1973 in favour of the respondent, Mrs Joan Margaret Rhys-Jones,
of Drysgol House, Drysgol Road, Radyr, on the appellants’ application to
modify, under section 84 of the Law of Property Act 1925 as amended, a building
restriction imposed by a covenant in a conveyance dated December 18 1961.
Mr N T Hague
(instructed by Allan Jay & Co, agents for James Morgan & Co, of
Cardiff) appeared for the appellants, and Mr J M Henty (instructed by Phoenix
Walters & Co, of Cardiff) represented the respondent.
Giving
judgment, STEPHENSON LJ said: This appeal is brought by the appellants, Mr and
Mrs Jones, from a decision of the Lands Tribunal (Sir Michael Rowe QC,
President) dated June 28 1973, which was annexed, in accordance with the Rules
of the Supreme Court, order 61, rule 1 (4), to a case stated at their request
on February 18 1974 for our decision pursuant to section 3 (4) of the Lands
Tribunal Act 1949. The application was made under section 84 of the Law of
Property Act 1925, as amended by section 28 of the Law of Property Act 1969,
for the modification of a restriction as to building arising under a covenant
imposed on the appellants’ predecessors in title by a conveyance dated December
18 1961. On objection taken by Mrs Rhys-Jones, the respondent, the tribunal
dismissed the application and ordered the appellants to pay the objector’s
costs. That dismissal is final unless it was erroneous in point of law. The
error of law on which the appellants rely is set out in the case stated. The
admitted facts, not all of them set out in the tribunal’s decision, are as
follows. By a conveyance dated December 18 1961, Mrs Osmond, of ‘Whitehall,’
Drysgol Road, Radyr, in the County of Glamorgan, sold to a Mr and Mrs Oldham
parcels of land in the same road which were identified on a plan as plots 1 and
2. Clause 3 is the covenant with which this appeal is concerned. It reads as
follows:
The
purchasers with the intent and so as to bind (so far as practicable) the
property hereby conveyed into whosesoever hands the same may come and to
benefit and protect the estate and property of the vendor being the rest of
‘Whitehall,’ Drysgol Road, Radyr, aforesaid and the land enjoyed therewith but
not so far as to render themselves personally liable for any breach of covenant
committed after they shall have parted with all interest in the property hereby
conveyed hereby jointly and severally covenant with the vendor that they the
purchasers and their successors in title will at all times hereafter observe
and perform the stipulations and restrictions following in relation to the
property hereby conveyed namely (a) to fence in and at all times keep fenced in
at their own expense and to the satisfaction of the vendor or her agents for
the time being the northern eastern and western boundaries of the said land
with a wall wooden paling fence or live hedge to be agreed with the vendor or
her agents (b) to remove completely to the satisfaction of the vendor or her
agents the dilapidated cottages known as ‘Drysgol Cottages’ now situate on
adjoining land retained by the vendor such cottages being coloured yellow on
the plan annexed hereto (c) not to erect on the land hereby conveyed any
dwelling-house or bungalow or other building except in accordance with plans
and specifications approved by the vendor.
The Oldhams
then built on plot 2 a small dwelling-house named (apparently with an eye on
the golf-course across the road) ‘The Hazards,’ presumably in accordance with
plans and specifications approved by Mrs Osmond. By a conveyance dated May 26
1964 the Oldhams sold plot 1 to a Mr Waddilove, and a dwelling-house was built
on that plot. At some time before September 1971, the Oldhams pulled down
‘Drysgol Cottages,’ the dilapidated cottages standing on the parcel of land
which lay between ‘Whitehall’ and plot 2, and which had been identified in the
1961 conveyance’s plan as plot 3, and in their place was built a dwelling-house
known as Drysgol House. By a conveyance dated April 14 1970, the Oldhams sold
plot 2 and ‘The Hazards’ to the applicants,
the conveyance’–that is, the conveyance dated December 18 1961–‘ so far as the
same affect the property hereby conveyed and are still subsisting and capable
of being enforced.’ By a conveyance
dated September 30 1971, Mrs Osmond sold plot 3 and Drysgol House to the
objector, the respondent, Mrs Rhys-Jones, ‘together with the benefit so far as
the same is subsisting and capable of taking effect of the restrictive
covenants contained in and reserved by a conveyance dated the 18th day of
December 1961. . . .’ Before the last
sale the appellant, Mr Jones, had applied, on December 7 1970, for planning
permission, and obtained it on February 5 1971, to extend ‘The Hazards’ by
building another bedroom and bathroom over the double garage; and the
appellants wanted to extend the garage to the rear to make a workroom. They
gave an undertaking to the respondent, in proceedings for an injunction started
on October 4 1971, not to proceed with the extension pending the decision of
the Lands Tribunal. At some date before April 1972, Mrs Osmond sold ‘Whitehall’
to the Lord Mayor, Aldermen and Citizens of the City of Cardiff, who have since
provided accommodation there for Her Majesty’s Judges. On April 18 1972 the
appellants applied to the Lands Tribunal for an order that the restriction
arising under clause 3 (c) of the 1961 conveyance, which I have read, might ‘be
modified so as to permit the addition of a bedroom and a bathroom to ‘The
Hazards’ by extending the first floor over the existing garage in accordance
with the accompanying architect’s plans.’
The application contained these paragraphs:
3. The
grounds of this application are that the application falls within paragraph
(aa) of subsection (1) of section 84.
4.
Particulars of application: (i) the reasonable user of the land which would be
impeded by the continued existence of the covenant is as a private
dwelling-house, with an additional first-floor bedroom and bathroom; (ii) the
restriction in impeding reasonable user does not secure to persons entitled to
the benefit of it any practical benefits of substantial value or advantage to
them.
The
respondent’s objection particularised her grounds of objection as follows:
(i) The reasonable user of the land is not as a
private dwelling-house with an additional first-floor bedroom and bathroom;
(ii) the restriction secures to myself practical benefits of substantial value
or advantage; (iii) by reason of the fact that the covenant was only imposed in
1961 it would be improper for the tribunal to exercise its discretion to modify
it.
And she
claimed £5,000 for the loss of amenity value in the event of the restriction
being discharged or modified. Section 84, as amended by the 1969 Act, reads as
follows:
(1) The Lands Tribunal shall (without prejudice
to any concurrent jurisdiction of the court) have power from time to time, on
the application of any person interested in any freehold land affected by any
restriction arising under covenant or otherwise as to the user thereof or the
building thereon, by order wholly or partially to discharge or modify any such
restriction on being satisfied (a) that by reason of changes in the character
of the property or the neighbourhood or other circumstances of the case which
the Lands Tribunal may deem material, the restriction ought to be deemed
obsolete; or (aa) that (in a case falling within subsection (1A) below) the
continued existence thereof would impede some reasonable user of the land for
public or private purposes or, as the case may be, would unless modified so
impede such user. . . .
(1A) Subsection (1) (aa) above authorises the
discharge or modification of a restriction by reference to its impeding some
reasonable user of land in any case in which the Lands Tribunal is satisfied
that the restriction, in impeding that user, either (a) does not secure to
persons entitled to the benefit of it any practical benefits of substantial
value or advantage to them; or (b) is contrary to the public interest; and that
money will be an adequate compensation for the loss or disadvantage (if any)
which any such person will suffer from the discharge or modification.
On May 8 1973
there was a full day’s hearing by the tribunal of witnesses and counsel on both
sides, and on June 28 1973 the tribunal gave its decision dismissing the
application on one short ground. After setting out some of the history which I
have recounted but omitting the 1970 conveyance, and after referring very
shortly to the evidence and arguments, the tribunal stated:
I do not
propose to go into this problem, for it seems to me that the general principle
enunciated in the judgment of Harman LJ in Cresswell v Proctor
[1968] 1 WLR 906 applies directly to this case. The covenant was imposed as
recently as 1961 and the applicants bought with full knowledge of it in 1971. I
do not think it right that purchasers should agree to be bound by a covenant
and then seek to modify it within a matter of months. It would of course be a
very different matter if those entitled to the benefit of the covenant had
waived their rights, but here they do not. I think they are entitled to stand on
their rights. I shall therefore dismiss this application.
I read that as
meaning that on reflection the tribunal had decided that it need not go into
the merits of the application and objection or weigh up the evidence and
arguments put before it, and indeed was precluded from doing so, because Harman
LJ had enunciated a general principle in Cresswell’s case which applied
to this case and compelled it to dismiss the application. The alleged principle
is not clearly formulated, but would appear to be that purchasers who apply to
modify a restrictive covenant within a matter of months of having agreed to be
bound by it must be refused any modification of it. The applicants were
purchasers who had agreed in September 1971 (a mistake for April 1970) to be bound
by this covenant and were applying to modify it in April 1972; therefore their
application could not be granted.
Mr Hague’s
argument for the appellants can be bluntly summarised in a sentence: this
decision misapplied an undefined and non-existent principle to misstated facts.
Mr Henty, for the respondent, contended that the tribunal correctly applied two
principles to the facts, and in the alternative that it did decide the case on
the merits without considering itself bound by any principle. The alternative
he conceded was difficult to argue on the language of the tribunal’s decision,
and in my judgment the question submitted to this court by the case stated put
it beyond argument. For we are asked by the tribunal to say (i) whether a
general principle was enunciated in the judgment of Harman LJ in Cresswell
v Proctor; (ii) if so, whether the tribunal was correct in considering
that such principle applied to the facts of the present case; and (iii) whether
in dismissing the application the tribunal erred in law. Those questions make
it clear to me that the tribunal dismissed the application on the short ground
that it was bound to do so by a principle applicable to the facts, and that we
have to decide whether the tribunal erred in point of law in holding that there
was such a principle, and if there was, that it applied to the facts of this
case. Our task is not made easier by the lack of any precise formulation by the
tribunal of the principle which it derived from the judgment of Harman LJ. I
have already stated the formulation of it which I have culled from the language
of the decision. But Mr Henty has extracted two principles which the tribunal
certainly did not formulate, but which he formulated thus: (1) where a case
concerns an original covenantor and an original covenantee, the tribunal is
entitled to require a higher standard of proof or justification than from other
applicants: it must be very much clearer that the applicant brings himself
within one of the grounds of relief; (2) when a covenant has been comparatively
recently imposed the tribunal should exercise its discretion so as to refuse
the application.
On examining
Harman LJ’s judgment I find, first, a decision that the Lands Tribunal was
right in exercising its discretion to refuse an application to modify a
covenant first imposed only two years before the application. Danckwerts LJ
also thought the exercise of discretion right. Winn LJ was not satisfied that
it was wrong. But I also find in Harman LJ’s judgment characteristically
vigorous expressions of disapproval of an application made in such
circumstances as he was considering. Those circumstances were briefly that the
application
covenant ‘not to erect any building whatsoever’ on the land conveyed, but to
use it as a private garden only. The application was amended and pursued at their
instance by trustees appointed by them of a voluntary settlement of which they
may have been in effect (as the headnote states), but other members of their
family were in name (as the facts found by the tribunal show), the
beneficiaries. Although there had been no change in the circumstances of the
property, but only a change in their own domestic obligations, yet they had
applied about 15 months after the purchase for planning permission to build a
bungalow on the land conveyed. Harman LJ found ‘the idea that you can modify a
covenant, voluntarily entered into, within a year or so, without any change in
circumstances of the property at all . . . shocking,’ and modification in
circumstances such as those ‘quite out of the question.’ Danckwerts LJ considered the application to
legalise the breach within such a short period not to be within the true
intention of section 84. Winn LJ was less critical of the original covenantors
and more critical of the Lands Tribunal. He considered that there might be more
excuse for such ‘a startling prompt attempt to escape from a voluntarily
undertaken contractual obligation,’ and that there were considerations which to
another mind might have overridden the ‘sanctity of contract’ argument which
appealed to Danckwerts LJ. But though the effrontery of the application, as it
struck two of the Lords Justices, undoubtedly generated enough judicial
indignation to drive Harman LJ, at least, into expressions capable of general
application, I do not myself find in them the enunciation of any general
principle in the form which I think appears in the decision of the tribunal, or
in either of Mr Henty’s formulations, or indeed in any form which applies to
the instant case. If Harman LJ laid down any general principle, it was not necessary
to the decision of the appeal before him, nor, even if endorsed by Danckwerts
LJ, is it binding upon us. I should, moreover, be reluctant to believe that any
court had in effect taken away a discretion which Parliament had entrusted to a
particular tribunal by directing that it should be exercised in one way only,
and I do not think that any member of this court in Cresswell’s case
purported to do that. I agree with the statement of the learned editor of Preston
& Newsom’s Restrictive Covenants Affecting Freehold Land (5th ed, at p
178):
In Cresswell
v Proctor the Court of Appeal had to consider an application to modify a
very recent covenant made, in effect, at the instance of the original
covenantor. Harman LJ and Danckwerts LJ expressed in somewhat strong terms the
view that the discretionary powers of the tribunal ought not to be exercised in
favour of such an application.
I also agree
with the remark at page 187 that they (the two Lords Justices) there ‘intimated
that very new covenants are not lightly to be altered.’ At most the majority were laying down a
guideline that the tribunal should be slow to modify a very recent covenant at
the suit of the original covenantor, and it is erroneous in law to confer upon
that guideline the style and dignity of a general principle which precludes the
tribunal from considering all the circumstances of the application before
exercising its statutory discretion.
Once the
circumstances of the application which the tribunal had to consider in this
case are examined, they cannot be said to be so similar to the circumstances of
Cresswell’s application that the guidance given in that case helped,
still less compelled, the tribunal to dismiss it. Neither the appellants nor
the respondent were original contracting parties to the conveyance of 1961
which imposed the restrictive covenant. The appellants had no relation with the
original covenantors except that of purchaser and vendor. At the date of the
application the covenant was not two years old, but 10. It was not a covenant
prohibiting any building whatsoever, but a covenant not to build except in
accordance with plans and specifications approved by the vendor. In the decade
since the covenant was imposed there were changes in the character of the
property and the neighbourhood which did not make the restriction obsolete and
give a ground for modification within section 84 (1) (a), but which did
distinguish this application from Cresswell’s, and might be very
relevant to section 84 (1) (aa), on which the application is founded. Those
changes included the building of dwelling-houses on plots 1, 2 and 3. Mr Hague
also asked us to bear in mind in addition to those factual distinctions the
further consideration that any observations made in Cresswell’s case
might require qualification in the light of the introduction into section 84 of
subsections (1) (aa) and (1) (A) by the 1969 Act. But he did not attach much
importance to that, and it is unnecessary to consider whether it has any
importance if, as I think, the facts of this case make any principle which can
be extracted from Cresswell’s case inapplicable to them. I also find it
unnecessary to decide how far the observations of Russell LJ in Ridley v
Taylor [1965] 1 WLR 611 at p 623A are in conflict with Harman LJ’s
opinion in the same case (at p 618B) that ‘the court should be slow to relieve
an applicant of covenants which he himself has entered into.’ That Diplock LJ in that case agreed with both
judgments suggests that the conflict may be more apparent than real. It is from
that judgment of Harman LJ, rather than from his judgment in Cresswell’s
case, that Mr Henty appears to derive his first principle and the Lands
Tribunal its practice: see Preston & Newsom, pp 186-7.
More relevant,
however, to an application like the present by a person who was not the
original covenantor is the judgment of Lord Denning MR in Re Wickins’s
Application (1962) 183 EG 541, which was distinguished by the Lands
Tribunal in deciding Cresswell’s case. There the applicant Wickins was
not the original covenantor, but a purchaser who bought the property less than
a year before applying to modify a covenant which was 27 years old and
applicable only in so far as it affected the property conveyed and was still
subsisting and capable of being enforced. The court held that the Lands
Tribunal was in error in saying that Mr Wickins had ‘very recently voluntarily
endorsed’ the covenant and in dismissing the application on that ground. The
Master of the Rolls said:
‘It would be
unfortunate if by buying land on those terms, he were to be held to have
disabled himself from applying under section 84 to modify the covenant. The
beneficial operation of this Act would be entirely defeated by such an
interpretation being put on his action. I do not think it is any ground at all
for refusing the application. By being influenced by it, the Lands Tribunal
fell into error.’
And Mr
Wickins’s appeal was unanimously allowed and his application granted. That
decision is, in my judgment, very much in point and prevents us from accepting
Mr Henty’s second principle which he derived not, or not directly, from Cresswell’s
case, but from a decision of the Lands Tribunal in Wynyates Smith Ltd’s
Application (1963) 15 P & CR 85. That case is not binding on us, and
decides no more than that the fact that a covenant that no more than eight
houses should be erected on land was imposed less than 10 years before an
application to modify it by allowing the erection of a ninth house was made by
an applicant closely connected with the original covenantor was one factor
which could be taken into account in refusing the application. The decision
lays down no general principle; it does not justify the statement in the
headnote that the covenant was ‘very recently imposed’; and unless it rightly
treated the applicant as the alter ego of the original covenantor, it may be
inconsistent with the judgment in Re Wickins’s Application which I have
quoted.
Re
Wickins’s Application was not brought to the
attention of the tribunal, and if it had been I do not think that the tribunal
would have fallen into the error into which, on my
purchaser who agreed to be bound by a covenant cannot be allowed to modify it
within a matter of months (or a year or two) to purchasers who were not the
original covenantor, the tribunal was not acting on anything said by Harman LJ
in Cresswell v Proctor (or in Ridley v Taylor), but
was acting contrary to what was said by Lord Denning MR, apparently with the
agreement of both the other members of this court, who did not give separate
judgments, in Re Wickins’s Application. Without the assistance of
authority, I would have thought that the shortness of the time which has
elapsed since the burden of a covenant was imposed on an original covenantor or
was transferred to a subsequent purchaser was a factor which could properly be
put into the scale against modification or discharge whether the application
under section 84 be made by an original covenantor (when it would weigh more)
or by a subsequent purchaser (when it would weigh less). But the older the
covenant, the more time there will have been for other factors such as changes
in the property benefited by the restriction to come into the reckoning in favour
of modification, and the easier it may be for the tribunal to relieve an
applicant of a burden which he has recently shouldered. However, we do not now
have to decide whether the judgment in Wickins’s case permits such an
approach or absolutely forbids the tribunal to consider this factor in deciding
any and every prompt application by a subsequent purchaser. It is enough for
our purpose that according to that judgment the shortness of the time is not a
decisive factor which forbids the grant of such an application. And the time in
this case is not as short as it was in Wickins’s case, or as it was
stated to be in the decision under appeal. I would accordingly accept Mr
Hague’s submission for the appellants and answer each of the first two
questions put to us by the tribunal in the negative and the third in the
affirmative. I would allow the appeal, and remit the matter to the tribunal for
reconsideration in the light of our judgments whether in all the circumstances
the covenant should be modified, and if it should, to what extent and in what
terms.
ORMROD LJ: I
agree. This is an appeal from a determination by the Lands Tribunal refusing an
application by the appellants to modify a restrictive covenant affecting their
property, ‘The Hazards,’ Drysgol Road, Radyr, Glamorgan. The matter was heard
by the then President, Sir Michael Rowe, on June 28 1973. The way in which his
decision is formulated leaves no doubt in my mind that the learned President in
effect disposed of the application on a preliminary point, although he had
heard all the evidence in the case. He clearly thought that he was bound by a
decision of this court in Cresswell v Proctor [1968] 1 WLR 906 to
reject the application. He said that the ‘general principle enunciated in the
judgment of Harman LJ . . . applies directly to this case.’ He had previously stated that he did not
propose ‘to go into this problem’ for that reason. The principle which the
learned President derived from that case is not precisely stated, but the point
upon which he relied was that the covenant in question had been imposed ‘as
recently as 1961’; that the applicants bought with full knowledge of it in
1971; and that it was not right that purchasers should agree to be bound by a
covenant and then seek to modify it ‘within a matter of months.’ The date of the conveyance to the applicants
was actually April 14 1970. From the way in which the judgments in Creswell
v Proctor are expressed, I cannot help thinking that the judges in that
case would have been very surprised to learn that their remarks were destined
to form part of the law relating to the modification of restrictive covenants
under section 84 of the Law of Property Act 1925. As I read the judgments,
Harman and Danckwerts LJJ were merely expressing in their own ways their
emphatic approval of the decision of the Lands Tribunal in that case to reject
an application to modify a restrictive covenant on the ground that it had been
recently entered into by the applicant herself (in effect, although not in
form) and the respondents themselves.
The decision
whether or not to accede to an application for modification of a restrictive
covenant under section 84 is, once the requirements of the section have been
satisfied, clearly a matter of discretion, and that discretion is now vested by
statute in the Lands Tribunal. This court cannot exercise it: it can do no more
than review the exercise of it by the Lands Tribunal, according to well-known
principles (see Egerton v Jones [1939] 2 KB 702 at 709). In my
judgment, therefore, this court cannot, or certainly ought not to, fetter this
discretion in any way. Accordingly, I would be very reluctant to conclude that
any decision of this court laid down any general principle governing the
exercise of such discretion, unless compelled to do so by clear and binding
authority. It is plain that no question of general principle was under
consideration in Cresswell v Proctor. Their Lordships, in my
judgment, were doing no more than to formulate a proposition of good sense:
namely, that where an original covenantor is applying for a modification of a
restrictive covenant recently entered into by him, this is one of the matters,
and an important one, which the Lands Tribunal can and must take into account
and to which it must give due weight in deciding whether or not, in its
discretion, to modify the covenant. If the judgments go any further, they go
beyond what was necessary for the decision of that case.
The matter,
however, does not stop there, for the learned President in the present case has
extended what was said in Cresswell’s case to a subsequent purchaser who
buys with knowledge of the restrictive covenant. This was the situation in Re
Wickins’s Application (1962) 183 Estates Gazette 541, in which this court
held that such a purchaser was not disabled from applying under section 84 to
modify a restrictive covenant. That case is not referred to by the learned
President in his decision in the present case, although it is, in my view,
conclusive against the view upon which the decision was based. Such a purchaser
not only takes with knowledge of the restrictive covenant, but also with the
knowledge that Parliament, by section 84, has provided him with the
opportunity, if he can bring himself within the section, of applying to the
Lands Tribunal to modify it, with prospects of success which will depend upon
all the facts and circumstances of the case. In my judgment, therefore, the
learned President, in failing to ‘go into this problem,’ that is, to take into
account all the other factors deposed to in the evidence, has not taken into
consideration matters which he ought to have taken into consideration, and
accordingly his decision cannot stand. This appeal should therefore be allowed
and the matter be remitted to the Lands Tribunal for a rehearing. It is most
unfortunate that the parties should be put to this expense, but there is no
possible alternative short of compromise at the end of the eleventh hour.
STEPHENSON LJ:
The judgments which have been delivered have both been read by Thompson J, and
he asks me to say that he agrees with both of them and that this appeal should
be dismissed.
An order was
made accordingly. Seeking an order for costs below, Mr Hague remarked that the
whole of the costs of the hearing had been thrown away; Sir Michael Rowe having
retired between the date of the decision and the statement of the case, it
would now be necessary to have the evidence heard all over again; and all this
had really occurred by reason of the respondents pressing a false argument, in
effect as a preliminary point. There was a practice direction of the Lands
Tribunal to be borne in mind, as set out in Preston & Newsom at page
305, by which an objector in general had a free run without the risk of having
to pay the other side’s costs, and with a good chance of having his costs paid
by the applicant; but what the practice direction did not say, and never had
said, was that an objector was allowed two free runs.
Stephenson
LJ: It is a strong point in your favour that the point taken was not one that
came out of the head of the President of the Lands Tribunal, but one that was
put into his head by Mr Henty.
Mr Hague: It
was put into his head by Mr Henty. But, to be fair to Mr Henty, he did not put
into the President’s head what I may call the Re Wickins’s point. That
was pure invention. It was not referred to in the tribunal, because Mr Henty
never suggested for a moment that one could call it a two-year covenant rather
than a ten-year covenant.
Ormrod LJ:
Somebody complained that he was not referred to Wickins.
Mr Hague: It
was never suggested by Mr Henty or myself.
Ormrod LJ: On
your side, Wickins was conclusive in your favour.
Mr Hague: On
that point. But that point was never argued against me.
Ormrod LJ:
What point?
Mr Hague: The
point that by taking a conveyance subject to a covenant one, so to speak,
started time running again. That is what I call the Wickins’s point. But
Mr Henty never argued that. Mr Henty has always indicated to me that that point
is quite wrong. So what I may call the Re Wickins’s point did not arise
below. I have made my submissions, my Lord.
Stephenson
LJ: Is there anything further that you want to say, Mr Henty? We are proposing to leave the costs of the
abortive hearing below to the Lands Tribunal.
Mr Henty: I
would accept that, my Lord. I did not intend to mislead the tribunal. The third
ground of my objection was, ‘By reason of the fact that the covenant was only
imposed in 1961 it would be improper for the tribunal to exercise its
discretion to modify it.’ I understand
from your Lordships that that was a perfectly reasonable argument.
Ormrod LJ:
Within the discretion, yes.
Mr Henty: As
to the costs here, once one reaches that point my learned friend would have to
come here. By virtue of the fact that I have been here no extra costs have been
incurred by him; he would have had to come to your Lordships’ court on appeal
to put the tribunal right.
Stephenson
LJ: Yes; he had to come. But you need not have supported the tribunal’s view. I
do not think you can be heard to say that you need not have come here, but as
you were here we can ignore the time taken up by your argument in resisting the
appeal.
Ormrod LJ:
The short answer to your submission is this: that your solicitors could have
written a letter to the other solicitors saying that you could not support
this, whereupon it would have been a pure formality.
Stephenson
LJ: You took a different course, Mr Henty. We do not blame you, but I am afraid
the court is against you. The costs of the appeal will be the appellants’, and
the costs before the Lands Tribunal will be referred to the Lands Tribunal
which completes the hearing.
