Right of way – Definitive map – Byway open to all traffic (BOAT) – Claimant modifying definitive map and statement to show route as bridleway – Inspector appointed by defendant secretary of state modifying order showing Right of way Land – Transfer – Restrictive covenant – Respondents’ predecessors constructing residential property on land transferred subject to restrictive covenants – Respondent undertaking to transfer strip of land to claimant neighbours on demolition of barn – Appellants seeking specific performance of covenant by respondent to transfer strip and damages for breach of contract to perform covenant – High Court holding restrictive covenants applying to strip on re-transfer – Appellants appealing – Whether strip transferred to appellants to be subject to restrictive covenants entered into when land sold to respondents’ predecessors – Appeal dismissed
A dispute arose between the appellants and the respondents who were neighbours at Little Baddow, near Chelmsford in Essex. It concerned a strip of land about four metres wide which was part of a parcel of land sold and transferred by the appellants in 2003 to the respondents’ predecessors in title for the purposes of residential development. Both the contract and the transfer provided that, if a barn on the land transferred were to be demolished, the respondents’ predecessors would retransfer the strip to the appellants. The appellants also entered into restrictive covenants to bind part of the land they retained by prohibiting the carrying on of activities which would be normal in an agricultural or rural setting but a nuisance to residential estate neighbours.
The respondents’ predecessors used part of the land transferred to construct a residential property which they sold to the respondents in 2005. The transfer required the respondents to transfer the strip to the appellants in the event of demolition of the barn. In 2009, the respondents demolished the barn but the parties were unable to agree whether a transfer of the strip should involve the imposition of the same restrictive covenants as applied to part of the rest of the land which the appellants retained in 2003.
The appellants sought specific performance of the covenant to transfer the strip and damages for breach of contract in failing to perform that covenant. The judge ruled in favour of the respondents: [2017] EWHC 1647 (Ch); [2017] PLSCS 147.
The appellant appealed contending that, through no fault of his own, the judge did not deal with the true issue. The appellants were relying on the provision for transfer of the strip contained in the 2005 transfer, not that in the conditional contract. While the arguments had been directed at whether the 2002-2003 restrictive covenants would, either as a matter of construction or by implication, extend to the strip if re-transferred to the appellants, that question was in fact immaterial. All that mattered was whether the 2005 transfer imposed such obligations on the appellants, and it did not.
Held: The appeal was dismissed.
(1) Shortly before the trial in the High Court, counsel for the appellants had emailed the respondents’ counsel informing him that he had been instructed to concede the point regarding the benefit of the restrictive covenants. Accordingly, the appellants had accepted that the respondents had the benefit of the restrictive covenants when they purchased the land from the developer. Against that background, it was no surprise that the trial was concerned with the meaning of the covenants rather than whether the respondents had the benefit of them. There was no longer any issue between the parties on that point. That being so, there was no need for either counsel to develop a case, or for the judge to rule on that point. The appellants skeleton argument for the present appeal stated that it was not disputed that the respondents had taken the benefit of the restrictive covenants. Further, the appellants had not stated that they wished to withdraw the concession given before the trial and on the basis of which the trial had been conducted. Accordingly, it was not open to the appellants to deny that the respondents had the benefit of the restrictive covenants given in 2002-2003. In any event, it would not be just to allow them to revive the point that had been conceded. It did not matter that the appellants were not seeking the return of the strip pursuant to the conditional contract but under the 2005 transfer. The position was rather that the covenants in the 2003 transfer would bite on the strip when it was transferred back to the appellants.
Tim Morshead QC (instructed by Birketts LLP, of Chelmsford) appeared for the appellants; Andrew Butler QC and Ned Westaway (instructed by Birkett Long LLP, of Chelmsford) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read transcript: Jones and another v Oven and another
