Property divided into apartments — Outbuildings — Covenant that lower apartment should be used as single private residence — New owner wishing to develop outbuildings — Whether covenant applicable — Appeal allowed in part that covenant applying
Harbury Hall, Harbury, Leamington, Warwick, is a substantial country house, with fields, gardens and outbuildings. In 1982 it was bought by C’s predecessors in title, Mr and Mrs P. The plaintiffs, Mr and Mrs G, assisted in the purchase. They were granted a 999-year lease for the first-floor apartment. They also obtained the outbuildings, broadly speaking, to the south of the courtyard and a garage. The lessors (Mr and Mrs P), who were to live on the ground floor (“the lower apartment”), covenanted not to do anything which “may be or become a nuisance or cause damage … to the lessee … and not to use the lower apartment … except for the purpose of a single private dwelling and in conjunction with the business of the lessor’s stud farm”. Mr and Mrs P transferred their interest to C who wanted to develop the game room, another garage, two tack rooms and stable block.
At first instance the judge had to decide, inter alia, the extent of the lower apartment. He found that the “lower apartment” included all the outbuildings which had been assigned to it, as well as the stable block. The covenant to use it as a “single private dwelling” therefore applied and C could develop them for separate dwellings only if Mr and Mrs G gave him permission to do so.
C appealed arguing, inter alia, that the word “apartment” was not apt to describe a courtyard with detached buildings in non-domestic use.
Held The appeal was allowed in part.
1. The appeal court accepted that an apartment did convey a notion of a living unit for domestic purposes. However, a strict meaning could not be adopted with reference to traditional outbuildings where owners indulged in traditional country pursuits.
2. It was not significant that the lease used the term “dwelling-house”. Parts of a dwelling-house would none the less be comprised in such a unit even if one did not live in them, for example, a coal shed.
3. However, there was force in the argument that space or buildings looked more like an “apartment” the closer they were to occupation by human beings and the closer they were to the main house and used for domestic purposes.
4. The plans had been originally drawn up on a minuscule scale and lacked detail and particularity. The arrangement had been entered into as an amicable one by two joint venturers and the heart of the submissions of Mr and Mrs G was that the documents should be read in that spirit.
5. The court adopted a broad common-sense approach: there was no doubt that outbuildings such as the game, larder and laundry rooms were for domestic purposes, as was the garage which was not detached. They were considered as part of the dwelling-house. Certain other valuable storage rooms contiguous to the garage were functionally connected to the house and could not be separated.
6. The stable block were buildings of a different category being physically detached and intended for non-domestic use. It was highly improbable that they were intended to be bound by the covenant. They did not form part of the lower apartment, but were something separate from it.
7. With regard to the right of way, the plans could not be relied upon. Inter alia, his lordship decided that C was entitled to use of a right of way for reasonable purposes for his ownership of the stable block.
John Randall (instructed by Rotherham & Co, of Coventry) appeared for the appellant, C; Anthony Barker QC and Guy Spollon (instructed by Prettys, of Ipswich) appeared for the respondents, Mr and Mrs G.
