Plans to develop a residential complex in Harpenden have suffered an Appeal Court setback.
Three appeal judges have held that the construction of a roadway leading to the development over private land will breach a 1964 conveyance limiting use of the site to that of “a private residence only”.
The ruling comes as a second blow to developer Jarvis Homes Ltd. In 2003, it failed to obtain planning permission for the residential development. Moreover, it faces strong opposition from local residents in its future appeal to the secretary of state.
In the planning application submitted to St Albans District Council, Jarvis had sought permission to construct eight detached houses and two semi-detached houses on land to the rear of 18-30 Ox Lane.
Subject to the grant of consent, the developer contracted to purchase no 28, intending to demolish it and build a house on the site and to construct a metalled, two-way road through the garden to the neighbouring development. It hoped that the roadway would eventually be adopted as a public highway.
Richard and Brenda Marshall, the freeholders of no 30, claimed that, because the construction of the road would result in a “part” of their property being used as a roadway rather than as a private residence, it would breach a conveyance made when nos 28 and 30 were subdivided in 1964.
The conveyance stipulated that any title holders to no 28 could not use the land or any buildings on the property “for any trade business or manufacture but will use the same as a private residence only”.
However, Jonathan Brock QC, for Jarvis, claimed that the term “private residence” related only to the buildings situated on no 28, and not to the land as a whole.
He argued that “there could not be any breach of the relevant obligation arising out of the use of the amenity land surrounding the house”, and maintained that the conveyance could not “prevent the owner of no 28 from building a driveway, a tennis court, a swimming pool, a garden, a shed, or anything else so long as neither the land nor anything on it was used for ‘any trade business or manufacture’”.
In the November 2003 High Court proceedings, Judge Howarth had agreed, holding that the limitation had been created to prevent both the erection of more than one dwelling-house and the use of the site for trade purposes, rather than to prohibit the construction of a road.
However, the Court of Appeal has allowed the Marshalls’ appeal, stating that the words “the same” in the conveyance referred to both the land conveyed and to any buildings erected on it.
Neuberger LJ said: “To limit ‘a private residence’ to the dwelling-house itself would seem to be contrary to what was intended by the parties to the 1964 conveyance.”
He added that the conveyance was intended “to bind” no 28, rather than a particular class of persons, and it was therefore irrelevant that the roadway would be used by the occupiers of the new houses on the adjoining site rather than by Jarvis.
The developer must now await the outcome of its planning appeal before the first secretary of state, who will determine whether the residential development will proceed.
Jarvis Homes Ltd v Marshall and another Court of Appeal (Thorpe, Rix and Neuberger LJJ) 6 July 2004.
Timothy Harry (instructed by Reynolds Parry-Jones Crawford, of High Wycombe) appeared for the appellants; Jonathan Brock QC (instructed by Perrins, of Luton) appeared for the respondent.
References: EGi Legal News 06/07/04
