Leasehold Reform Act 1967, section 19 — Management scheme — Complaint by plaintiffs, trustees of a Kensington estate, that defendants, owners of freehold of a house in the estate, had failed to comply with stipulations contained in the scheme — Consent of trustees required for parking arrangements and alterations to exterior of enfranchised property — Consent not to be unreasonably withheld — Construction of hardstanding by defendants without previous written consent of trustee landlords — Consent sought ex post facto but refused — Whether consent unreasonably refused — Judgment for trustees
the defendants had moved in they engaged building contractors to carry out
certain works, including the excavation and paving of an off-street parking
area in the place where the front garden had been — The work involved, inter
alia, the removal of a boundary wall, with a box hedge on top, which separated
the front garden of the property from the street — The front garden had in fact
been previously paved but with a small flower bed on one side — This work had
been carried out without any application to the trustee landlords for consent,
contrary to the provisions of the section 19 scheme, which had been approved by
the High Court in accordance with the Act — When the matter was brought to the
attention of the defendants they apologised and made an application for consent
although the work had been largely completed — The application was refused and
proceedings were commenced by the trustees, seeking reinstatement, damages and
declaratory relief
issue was the reasonableness of the trustees’ refusal of consent — The judge
considered first whether the refusal was in principle within the band of
reasonableness, having regard to the written and oral evidence and a view of
the location which, accompanied by counsel, he had taken — He concluded that
the trustees’ decision was within the band of reasonableness, on the ground of
visual amenity and appearance, having regard to the character and design of the
properties in the road, and notwithstanding the fact that there were already in
existence other hardstandings in that road — The judge next considered whether
there were any special circumstances affecting the defendants’ application
which would make the refusal, although otherwise reasonable, in this particular
case unreasonable — Among the circumstances considered were a hardening of the
trustees’ attitude to applications for car parking in front gardens about the time
of the defendants’ application, and a suggestion of inconsistency in the
trustees’ decisions, illustrated by one case of alleged unequal treatment — The
judge did not find that any such special circumstances were present — A
hardening of policy, in the absence of any proved detriment owing to defect of
legitimate expectations, was not in itself unreasonable, and there were
specific factors differentiating the particular case where inconsistent
treatment was alleged — The judge also dismissed other points concerning the
defendants’ state of knowledge of the scheme and the state of progress of the
work by certain dates
the judge decided that it would not be a proper exercise of his discretion to
refuse the plaintiff trustees the equitable relief which they sought — As to
damages for breach of covenant, he made a nominal award of £5, which was
acceptable to the plaintiffs — He also ordered reinstatement of the boundary
wall and garden space and granted declaratory relief in a form to be settled
No cases are
referred to in this report.
This was an
action by the trustees of the Phillimore Kensington Estate, Mr Mosley and
others, against the defendants, Mr and Mrs Cooper, the freehold owners of an
enfranchised property in the estate, 15 Argyll Road, London W8. The plaintiffs’
complaint was in regard to work carried out by the defendants at the front of
the property without the plaintiffs’ consent, contrary to the provisions of a
scheme under section 19 of the Leasehold Reform Act 1967 approved by the court.
Simon Berry
(instructed by Frere Cholmeley) appeared on behalf of the plaintiffs; Martin
Pascoe (instructed by Barlow Lyde & Gilbert) represented the defendants.
Giving
judgment, Mr T R A MORISON QC said: In this action the plaintiffs are
the trustees of the Phillimore Kensington Estate (the estate). The defendants
(husband and wife) are the freehold owners of a house within the estate, 15
Argyll Road, London W8, which they purchased in June 1986. At that date the
vendors were seeking to enfranchise the property. The defendants acquired from
the vendors their leasehold interest and by a deed of transfer dated June 17
1986 and signed by each of them they purchased the freehold interest from the
plaintiffs. By the terms of the deed it was provided that the property was
subject to a scheme under section 19 of the Leasehold Reform Act 1967 (as
amended), the terms whereof are set out in a schedule to an order of the High
Court dated July 18 1977.
The provisions
of the scheme which are relevant to the issues in this case are as follows:
In the
schedule, under the heading Restrictions and Stipulations,
Paragraph 4: Not to park any motor vehicle caravan trailer boat craft or other
vehicle in the front garden or forecourt of the enfranchised property except and
subject to the previous written consent of the Landlords [the Trustees] one
private motor car.
Paragraph 6: Not without the previous written consent of the Landlords to make
any alteration to the exterior of the enfranchised property or any existing building
thereon . . .
Paragraph
11: Any owner of an enfranchised property to whom
notice of any breach of a restriction or stipulation imposed in respect of such
property by this Scheme shall have been given shall be bound to commence to
make good such breach within three months after service of such notice and
thereafter proceed diligently with the work and in default thereof it shall be
lawful for the landlords and any person authorised by them to enter upon the
enfranchised property and take such steps and carry out such works as the
landlords shall deem necessary to make good the breach and any monies expended
by the Landlords for that purpose shall be recoverable by the Landlords from
the owner.
In the main
body of the scheme:
Clause 3: The owner of an enfranchised property shall observe and perform
the restrictions and stipulations set out in the Schedule hereto.
Clause
10(a): Any requirement in paragraphs . . . 4 . . .
6 . . . of the Schedule to this Scheme for any approval or consent to be given
by the Landlords shall be subject to the proviso that the same shall not be
unreasonably withheld but the Landlords may nevertheless impose such conditions
as they reasonably consider desirable to safeguard or improve the amenities or
appearance of the neighbourhood.
The estate
comprises a number of properties which lie to the north of Kensington High
Street, to the west of Kensington Church Street, to the east of Holland Park
and to the south of Campden Hill. The properties are conveniently identified on
a plan, prepared in the offices of a surveyor called as an expert witness on
behalf of the plaintiffs, and include all those which abut Argyll Road, north
of Phillimore Walk. Argyll Road runs in a north-south direction and extends
from Kensington High Street in the south to Upper Phillimore Gardens in the north.
For traffic, it is a one-way street from north to south. No 15 is on the east
side, to the north of Stafford Terrace. I was invited by the parties to view
the locus in quo, which I did on the afternoon of the first day of the
trial, accompanied by counsel for both parties. The following morning I made
the parties aware of the impressions I had formed as a result of the view and I
annex them to this judgment.
Annex to
judgment: judge’s view of location
I am grateful
to both counsel for their conducted tour yesterday. I found it helpful. We
walked up and down Argyll Road on either side. We walked along the length of
Upper Phillimore Gardens, turned left down Phillimore Gardens and left again
into Phillimore Place. I thought it would be helpful to the parties if I told
them what my impressions of the area are, in the context of this case. Indeed
these are only impressions and I am open to persuasion by evidence and argument
about them.
First, Argyll
Road impressed me as an attractive street of architectural interest. Although
the details of the architecture vary, sometimes from house to house, the
overall view I had was of architectural unity. The detailed differences, such
as the balustrading at first-floor level, and the extent to which the windows
were bayed, added to the attractiveness of the road.
Second, there
was not much traffic passing down the road while we were there. I imagine that
the maximum movement of vehicles is likely to occur during the period when
children are being taken to or collected from the school for primary age pupils
which is located on the north side of Upper Phillimore Gardens.
Third, there
were a large number of parked cars in the road. As one might expect, the
parking was not orderly in the sense that the maximum number of potential
parkers was not being accommodated. It seems to me that is likely to be the
position as large cars are replaced by smaller vehicles and some drivers are
either not competent parkers or simply selfish in the amount of space they
occupy.
Fourth, my
immediate reaction to the off-street parking in Argyll Road was that the space
available to drive off the road is extremely limited. The precise amount of
space varied from house to house; in one there was barely room for a small car
such as a Renault 5. I recall that each house has an entrance to the basement
area and the off-street parking is restricted by the layout which provides
steps down to that area. Again, the distance between the front elevation and
the edge of the hardstanding furthest away from the pavement varied and it is
difficult to tell from P1 exactly how much space is truly available for the
car.
Fifth, whether
because they did not have enough room, or because there had been difficulty in
negotiating the entrance or for some other reason, I was struck by the fact
that in, I think, every case where a car had been parked off the road it stuck
out into the pavement beyond the property’s boundary wall. Looking down the
road and making an overall assessment I regarded this feature as intrusive. On
the other hand, the amount of trees and shrubs in the various front gardens,
which is a feature of this road and distinguishes it instantly from the
uniformity, for example, of Essex Villas, tended to conceal the parked cars
from a distance, save for the fact that they all jutted out to some extent.
Shortly after
they had moved in, the defendants engaged building contractors to carry out
certain works to the property, including the excavation and paving of an
off-street parking area where the front garden had been. This work was carried
out without the consent of the trustees and involved, among other things, the
removal of a boundary wall, with a box hedge on top, which separated the front
garden of the property from the pavement. I am told by the defendants, and I
accept, that, when they moved in, the front garden was paved, with a small
flower bed on the south side. As a result of a communication from the owner of
another property in Argyll Road, the trustees’ professional managing agents
(Chesterton Lalonde) (the agents) became aware (for the first time), on
December 4 1986, of the works being carried out. The agents duly informed the
trustees’ solicitors (Frere Cholmeley), and on the same day the solicitors
sent, by hand, a letter to the defendants stating that the works were being
carried out in breach of the scheme, that no further work should be done and
requiring the defendants to apply, through the agents, to the trustees for
consent. The defendants responded that they had assumed that as they had had approval
from the council (the Royal Borough of Kensington and Chelsea) for the
crossover (that is, the removal of the kerb so that a car could be driven from
the roadway on to the hardstanding in what had been the front garden) no
further consents were required; they offered their apologies to the trustees
and indicated that they would be making the necessary application for consent
to the agents on the next working day. The first defendant duly attended the
agents on Monday, December 8 1986 and the representative of the agents, as I
find on the evidence, indicated that he would transmit their request for
consent to the trustees and take their instructions. The representative was
provided by the first defendant with a photocopy of a photograph of, what the former
believed at the time to be, no 15 and a plan, which showed the dimensions of
the hardstanding for which permission was being sought. The agents duly
requested instructions from the trustees, in a letter dated Tuesday December 9
1986. By letter dated January 6 1987 the agents informed the first defendant
that the trustees had decided to refuse to grant their consent and asked that
the front garden be reinstated. The defendants consulted their solicitors, who
asked that the trustees reconsider their previous decision, as the first
defendant was ‘quite unaware of the management scheme when he purchased the
property . . . we did of course send him a copy of the management scheme as
soon as we received it from his vendor’s solicitors, but this arrived well after
completion of the sale by which time the vehicle hardstanding area had been
constructed’. The request fell on deaf ears, and the present proceedings were
commenced by writ issued on July 18 1988.
I note, in
passing, that the scheme contains an arbitration clause (clause 10(b)) and that
the present dispute is one to which that clause applies. Including the view
(which accounted for just over one hour of court time), and counsel’s closing
submissions, the trial of this action lasted just short of six working days.
The plaintiffs could have referred the present dispute to an arbitrator in the
first instance and, the action having started, the defendants could have
applied for it to be stayed pending arbitration. In my view, the matters in
issue could well have been decided by an arbitrator (that is, one chosen by the
parties or, in default, appointed by the president of the RICS) and it is for
consideration by the trustees whether, in future, any similar dispute might not
be better dealt with by arbitration than by action. That is not to say that the
parties are not free to litigate in the courts if they so wish.
The plaintiffs
are claiming an order that the defendants reinstate the property, ie they
restore the boundary wall and garden, and damages for breach of covenant. They
also claim declaratory relief which would be appropriate if, despite the
mandatory order, the defendants failed to carry out the reinstatement works.
The defendants admit that the creation of the hardstanding without the
trustees’ consent was a breach of the provisions of the scheme but say that the
subsequent refusal by the trustees of their application for consent was
unreasonable, and they counterclaim for a declaration to that effect, and claim
injunctive relief to prevent the trustees themselves carrying out the
reinstatement works.
Although the
trustees have a prima facie right to have the works of reinstatement
done because the defendants admit that they failed to obtain the necessary
consent in breach of paras 3 and 6 of the schedule, if the court held that the
subsequent refusal of consent was unreasonable, it is accepted that, in this
case, in the exercise of the court’s discretion, no order of reinstatement
should be made. It
defendants to reinstate the property when they would, ex hypothesi, be
entitled to re-create the hardstanding the next day. Conversely, it is accepted
that if the trustees’ refusal of consent was not unreasonable, then the fact
that the work has already been done without consent does not affect the
position. Accordingly, the central issue which I must adjudicate upon is the
reasonableness of the trustees’ refusal of consent in their letter of January 6
1987.
A good deal of
time was taken up in exploring whether the defendants did or did not know of
the terms of the scheme when the work to their property commenced and whether
they substantially completed the work after they had received the trustees’
solicitors’ letter of December 4 1986. I can see that in certain circumstances
the behaviour of a defendant in a case such as this could be relevant to the
exercise of the court’s discretion to grant equitable relief; in the present
case, I do not consider that the defendants’ behaviour is of any significant
importance to the questions that I must determine and the contrary was not
suggested by either counsel. If the trustees reasonably refused their consent,
when it was asked for, the fact that the defendants had proceeded under a
misapprehension as to the need to obtain consent would not be relevant unless
it could be suggested, and it was not, that their ignorance entitled them to
keep the property in its present state. I do not see how the trustees’ position
could be adversely affected by the ignorance of the defendants, for which the
trustees were plainly not responsible. The fact that the defendants
deliberately carried out the work without first seeking consent would not, I
think, have any bearing on the relief the court granted: while the defendants
ought to have sought prior consent, they had done something which the trustees
could not reasonably refuse them permission to do. There is no evidence to
suggest that the trustees themselves, in reaching their decision to refuse,
took into account the fact that they were being asked to give consent ex
post facto. However, because these matters have been explored in the
evidence at some length, and because the good faith of certain witnesses has
been called into question, I would regard it as unsatisfactory if these issues
remained unresolved.
The matters
relied upon by the trustees in support of the reasonableness of their refusal
of consent are set out in para 12 of the statement of claim and may be
summarised as follows:
(a) hardstandings diminish
the appearance and visual amenity of the properties in Argyll Road;
(b) hardstandings involve a
loss of on-street parking and a net loss of parking overall;
(c) the use of hardstandings
creates a potential traffic hazard;
(d) proliferation of
hardstandings (beyond the present case) will be likely to damage the
plaintiffs’ property interests in the estate.
The defendants
did not contend that these matters were irrelevant to the decision which the
trustees had to make, but they contended that the trustees’ decision was
unreasonable on the facts of this particular case. Their contentions may be
summarised as follows:
(a) the trustees were
behaving inconsistently in refusing consent to the defendants. Quite apart from
52 Argyll Road, where the trustees gave consent for a hardstanding after the
defendants’ application for consent had been refused, the trustees had
previously given consent for hardstandings in other properties in Argyll Road
pursuant to a policy which had applied since the late 1960s. The defendants’
application could have satisfied the criteria in that policy and the impact of
their hardstanding was more acceptable than the impact of a similar
hardstanding in at least one other property;
(b) it was unreasonable of
the trustees to apply to them a new policy, which amounted to a total ban on
all further hardstandings in Argyll Road, before that new policy had been
published;
(c) granting the defendants’
application for consent would not have any significant effect on any of the
matters relied upon by the trustees; and in particular, the real loss of
parking was a few feet only and there had been no reported incident or accident
involving hardstandings within the Phillimore Estate;
(d) granting the defendants’
application for consent would not open the door to any significant number of
other applications of a like nature which, on grounds of consistency, the
trustees might feel obliged to grant (which, for shorthand, I will call ‘the
precedent effect’).
I turn,
therefore, to consider my findings of fact based upon a consideration of the
written and oral evidence, assisted by the view which I have had. I shall first
consider whether, in principle, the trustees’ decision fell within the band of
reasonableness. Second, I shall consider whether there is anything about the
defendants’ particular application for consent which, on the assumption that
the trustees’ decision was otherwise reasonable, rendered their particular
decision unreasonable. Under this head, I put the issues as to whether the
trustees were reasonably entitled to apply to the defendants’ application their
new policy and as to the alleged inconsistency with previous consents that that
produced; further, under this head I shall consider the facts relating to the
trustees’ decision in respect of 52 Argyll Road. Third, I shall consider the
facts relating to the defendants’ state of knowledge about the scheme and the
issue relating to the state to which the work had progressed, as at December 4
1986.
There are some
55 houses which front on to Argyll Road. Apart from nos 2, 4 and 6, the east
side comprises the odd-numbered houses and totals 30. On the west side, there
are 25 properties, all of them even numbered. As at the date of this trial, and
excluding the subject property, two of the properties on the west side had
hardstandings in place of the front garden, namely nos 36 and 52. On the east
side, nos 27, 33, 35, 37 and 39 had hardstandings at the front. At the date of
the defendants’ application to the trustees (December 1986) the hardstanding at
no 52 had not been approved. The trustees gave their approval to the owners of
that property after they refused to give the defendants permission. I shall
consider, separately, the course of that application, because the defendants
contend that the trustees had no reasonable grounds to differentiate between
nos 15 and 52 and that by granting consent to the latter they were acting
unreasonably in relation to the former.
To assist me
on the question of the reasonableness of the trustees’ decision, the parties
each provided an expert report and expert oral evidence. The visual impact of a
hardstanding is, I suppose, a matter largely of impression. I found that the
views expressed by Mr M Hopper FRICS, the surveyor for the trustees, on this
aspect to be more sound than those expressed by Mr E M Sheard FRICS, the
surveyor on behalf of the defendants. In my judgment, Mr Sheard placed more
reliance than was justified on the type of boundary wall as opposed to the
importance of the existence of a boundary as such. He observed that the
boundary at no 15, comprising a low wall with a box hedge on top was atypical.
He would not have criticised the trustees if they had refused to permit a
balustrade to be removed, even if it was not original, because he thought that
there was merit in such a type of boundary. He also said that the trustees
could reasonably object if a tree had to be removed to make way for the
hardstanding. Mr Hopper, on the other hand, placed more emphasis on the
existence of a boundary between the pavement and the house than the type of
boundary device. He pointed out that the trustees had to have regard to
long-term considerations (and Mr Sheard agreed with this) and if their policy
was guided by what the state of a particular front garden was when application
for consent was made, a property owner could pave over the front garden and cut
down any trees (subject to planning consent if such was required) at the
relevant time. I preferred the evidence of Mr Hopper to that of Mr Sheard on
this point. Mr Hopper’s evidence was, I thought, impressive and well
considered. The houses, which are probably of middle- or late-19-century
construction, were obviously designed with a front separated off from the
pavement or road. Removing the boundary and opening the property up, so I find,
diminishes the visual attraction of the particular property and thus of the
road as a whole. It is true that because of the extent of trees and shrubs in
the various front gardens and by virtue of the width of the road, if one stands
in the road and looks up or down one cannot readily see the existence of
hardstandings. However, in my judgment, walking up or down the pavement or
driving down the road, the gaps are plainly obtrusive and the presence of a car
in the space seems out of place. It is not for the court to substitute its own
decision for that of the trustees. But on the issue of visual amenity and
appearance, I take the view that their reliance on this ground fell well within
the band of reasonableness and was manifestly a view which trustees in their
position could take.
I also
consider that they were entitled to take this view even though a number of
other properties had hardstandings and no 15 represented the loss of just one
more boundary. It seems to me that the question of what is visually acceptable
and whether the addition of one more hardstanding is acceptable is very much a
question of
scheme of the type in question. Mr Sheard accepted that it was a question of
degree. He would have said that the limit was reached when a third of the
properties on the east side had had hardstandings and would have advised the
trustees that if they took objection below that number they would have to
reconsider their decision very carefully. Ultimately he felt that he would
maintain his advice that they would have been acting unreasonably up to 33%,
but he accepted that it would not be difficult to find someone whose views
would differ with his. I inferred from his evidence, on cross-examination, that
he was simply not able to maintain the position that no reasonable trustee
could have refused consent in this case. In particular, by saying that it would
not be difficult to find others who would disagree with his cut-off point, he
was in fact accepting, I think correctly, that a reasonable trustee could have
acted as the trustees did in this case, but suggesting that he personally would
disagree with their decision and think it unreasonable. Mr Hopper had no doubt
as to the reasonableness of the decision. He expressed the view that it was
important that there should not be openings. He said that they were ugly and
not in the least what was intended. In the light of the totality of the
evidence on this point I have no hesitation in holding that the decision
reached by the trustees on the ground of visual amenity and appearance, having
regard to the character and design of the properties in Argyll Road, was one
well within the band of reasonableness even though there were hardstandings
already in existence in that road and no 15 was just one more property.
As to loss of
parking, the essential facts are not much in dispute. So long as the
hardstanding is used by a vehicle which would otherwise have been parked in the
street, the actual loss of space is the difference between the length of the
yellow line across the mouth of the hardstanding (where the bite has been taken
out of the pavement) and the space which a parked car normally occupies in the
street. Figures of between three and six feet loss of space were mentioned in
this context with a total loss of one car space on the east side of the road.
The defendants
own two cars at the present time: a Renault Espace, which is a relatively high
vehicle designed to carry large families, and a Volkswagen Golf, which is a
small/medium runabout car. Each of them has a residents’ car parking permit
issued by the local authority. For the time during the day that the defendants
do not have their own car in their space the effect of the yellow line is to
take away one space that would otherwise have been available to other
residents. Argyll Road and the adjoining roads are well provided with spaces
for residents’ parking in the sense that most of the on-street parking is for
residents only. At night it is unlikely that anyone would park across the
entrance to the hardstanding unless they were connected with the defendants
(for example, their own guests) or, by prior arrangement, their friends or
neighbours or their guests. Effectively, therefore, the space in the street is
under the control of the defendants and by building the hardstanding the
defendants are dedicating more than just one complete space for themselves. I
find, on the evidence, that car parking spaces are regarded as being in short
supply. I further find as a matter of probability that the defendants are more
likely to use their second car in London and park it at or around Argyll Road
than would be the case if they had no such hardstanding. To that extent the
hardstanding causes a greater loss than has been estimated by the experts. It
is true that the existence of the yellow line provides a temporary space for a
delivery vehicle to stop without blocking the traffic. With cars parked on both
sides of the road, a vehicle of any size is likely to bring traffic to a
standstill if it stops in the road alongside a parked vehicle. The hardstanding
has, therefore, the incidental benefit of providing such a vehicle with a space
to pull into the side of the road. Taking all these factors into account, I am
of the view that the trustees could reasonably take the view that the creation
of a hardstanding has more than a minimal detrimental effect on the parking
arrangements in Argyll Road and this effect was one that they were reasonably
entitled to take into account in reaching their decision to refuse their
consent to the defendants’ application.
As to traffic
hazard, neither party places much reliance on the point. It is accepted that
cars driving into and out of the hardstanding have to cross the pavement area.
However, the available statistics do not reveal any problems having been
encountered. In my view, the greatest danger caused by hardstandings in Argyll
Road arises from the way that cars are parked in them. The dimensions of the
existing hardstandings, excluding the subject property, have been agreed. The
depth varies between 14 ft 4 in and 14 ft 9 in, save in the case of no 36 where
the maximum usable depth is 9 ft 11 in. In each case where a car had been
parked in a hardstanding at the time of my view, it protruded on to the
pavement, sometimes to a considerable degree, as in the case of no 52. Not only
is the protrusion unsightly but it also, in my judgment, represents a hazard to
pedestrians, especially the blind and elderly. The space in the hardstandings
is, on any view, tight. Unless the vehicles are small or parked with particular
care, the danger of protrusion exists. As will be seen, the trustees imposed a
minimum depth of 15 ft under their old policy. In most cases, measurements
which purported to show this depth were produced to the trustees at the time
they were asked for their consent. Even with this depth, the hazard caused by
protrusion on to the pavement depends on the length of the vehicles and the
care with which they are parked. The depth of hardstanding built by the
defendants was 13 ft 4 in. Had they presented their plans to the trustees they
would have been refused permission under the old policy, although I accept that
it would have been possible to extend the hardstanding towards the house to
give them the 15 ft and still leave them with more room between house and
hardstanding than in another comparable case for which the trustees had
previously given permission. It is not clear to me that the trustees took into
account the protrusion problem as a potential hazard and I discount it from my
consideration of the reasonableness of their decision on this point. However,
their old policy with a minimum depth requirement does suggest that the
trustees had regard to the possibility of protrusion as a general amenity
factor and I take the view that they were reasonable in so doing. It was
suggested to me that the protrusion problem could be overcome by the trustees
making their consent to the works subject to a condition that the vehicles were
not to be permitted to protrude on to the pavement. I regard that suggestion as
impracticable. People other than the owners of the property may from time to
time park their cars on the hardstanding with the owner’s permission. They may
be unaware of the condition and the owners may not be available to ensure that
the condition was complied with. In any event, from the trustees’ point of view
this would be difficult to police, and it would be inimical to the estate’s
interests to impose conditions which were more honoured in the breach than in
the observance.
I turn now to
the precedent effect. The trustees have, subject to no 52, drawn the line so as
to exclude the defendants’ application and any other similar application. The fact
that they have announced their policy decision does not, of course, prevent any
other property owner in the road from making a similar application and, on
refusal, testing the trustees’ reasonableness, as in this case. However, as a
matter of common sense, it is quite possible that the announcement of their new
policy will deter others from applying. The trustees were concerned, as I find
on the evidence, about the effect that a decision to grant the defendants’
application for consent would have for the future. Mr Sheard suggested in his
evidence that the line could be drawn by reference to the existence of
balustrading or of trees. If the line were drawn as he would suggest, then, as
I find on evidence, if consistency were the governing factor, applications in
relation to four more properties on the east side could not reasonably be
distinguished from no 15. That would take the number of properties on the east
side with hardstandings to just under 33% of the total number of houses on that
side. I have already given my conclusion that the trustees could reasonably
decide that enough was enough at the date of the defendants’ application for
consent. In my judgment, the trustees could reasonably have reached the
conclusion that had they granted consent to the defendants it would have been
difficult for them to hold the line, in the absence of a change of policy.
My conclusion
is, on the whole of the evidence, and I so find, that the trustees were
reasonably entitled, in principle, to refuse their consent to the building of a
hardstanding for a car at 15 Argyll Road.
I turn to the
second part of this judgment, in which I shall examine whether there were any
particular circumstances special to the defendants’ case which would render a
decision that was otherwise reasonable in principle to be unreasonable.
I was provided
with a black file containing extracts of correspondence relating to the
granting of consent to a hardstanding in relation to nos 35 and 37 in 1968, nos
13, 27 and 36 in 1969 (before enfranchisement), and, latterly, no 33 in 1984.
The documents show, and this is confirmed by the evidence of Mr Mosley, a
trustee since 1964, a former partner of Frere Cholmeley and now a consultant of
that firm, that the requirements of the old policy were that hardstandings
would be permitted in Argyll Road subject to the
exception, in that the trustees approved the owner’s plans which showed a depth
of 14 ft 8 in. By 1984, that is at the time of the consent granted to the owner
of no 33, it was the view of the trustees that the character and desirability
of this road had changed since the early consents had been granted. The agents
wrote in January 1984 (black file p 25) that
although many
years ago a few such consents were given, it is no longer the Estate’s policy
to give consent to a proposal of this nature nor so far as we are aware, would
the Local Authority be prepared to grant approval.
However, the
local authority did grant approval and the matter was referred to Mr Mosley for
advice. His firm contacted the local authority, who appeared to be unhelpful in
the sense that they were unable to refuse permission because planning
permission was not required for the construction of a hardstanding, even though
the properties are in a conservation area. Mr Mosley’s advice was that as
permission had been granted for a hardstanding in the next-door property ‘it
would be difficult for the trustees to be acting reasonably in refusing
consent’. Accordingly, consent was reluctantly granted. I should add, for the
sake of completeness, that the black file showed that an owner (of no 39) in
about 1972 introduced a car hardstanding without permission and after some
brisk correspondence the trustees decided not to take court proceedings; Mr
Mosley observed that the trustees had accepted rent after knowledge of the
breach. Finally, it should be noted that in about 1975 the lessee of no 13
converted his hardstanding back into a front garden.
I am satisfied
on the evidence of Mr Mosley, which I accept in full, subject to one
reservation which I make in a moment, that in 1984 the arrival on the scene of
Mr H A C Edwards [FRICS] as senior partner of the agents and of Mr Claude
Phillimore as one of the trustees created a change of attitude to the
administration of the estate in general and to the trustees’ attitude to
hardstandings in particular. I was told that Mr Phillimore is an architect and
that Mr Edwards had had considerable experience as adviser to the Grosvenor
Estate. Thus, not only was the character of the estate changing over the years
but also the character and inclinations of the trustees and their advisers. The
view expressed by Mr Phillimore in his letter of December 30 1986 addressed to
his co-trustee, Mr Mosley, namely that:
I see no harm
in admitting that having watched the gradual increase of carports [he means
hardstandings] the trustees feel they made a mistake in allowing their creation
and that the quality of the Estate has suffered therefrom
was, I accept
from Mr Mosley, one which had been expressed informally on earlier occasions by
Mr Phillimore when the trustees met. In October 1986, there is a record of Mr
Edwards saying at a trustees’ meeting that
the tendency
of certain lessees to park cars in their front gardens must be resisted so far
as possible.
It is against
that background that the defendants’ application for consent was received by
the trustees. Mr Mosley explained that he was concerned to ensure that the
trustees appeared to the tenants to be fair and consistent. He believes that
management without confrontation is desirable and has gone on record as saying
that if the trustees appear to refuse consent unreasonably the tenants will
simply undertake their works without consent. I accept that the trustees have a
difficult task carrying out their responsibilities to the estate as a whole
without creating disaffected tenants and enfranchised owners. When the
defendants’ application was referred to the trustees they were strongly advised
by the agents that no further front-garden car parking anywhere on the estate
should be allowed and they indicated that there was some degree of local
opposition to the application. The question which troubled Mr Mosley was
whether, if the new policy of no more car parking was right, it should be
applied to the defendants. He wrote to the other two trustees seeking their
views, and to the agents for their further views, and indicated that no 15 had
a comparatively short front garden
and hopefully
a shorter one than in those cases where a licence has previously been granted.
In that case I would find no difficulty in refusing this application.
The agents
said that the trustees should not be too concerned about changing their policy
at the present stage:
Many planning
and environmental decisions have been adjusted in recent years by planning
authorities and the like and I think the trustees could justifiably say that
they have reconsidered their previous policy. . . .
In the
meantime I think consent in respect of 15 Argyll Road should be refused.
Mr Phillimore
hoped that the car-port at no 15 could be stopped, although he said he felt
some sympathy with the owners. By the end of December, Mr Mosley was in a
position to write to the agents saying that the trustees were now all in
agreement and that the fact that there was a new policy should be communicated
to all lessees and freeholders on the estate in the new year:
We also all
of us agree that consent in respect of 15 Argyll Road should be refused . . .
On January 6
1987 the agents duly wrote to the defendants informing them that their
application had been refused:
This is a
policy decision on the part of the trustees not to give any further consents
for car parking in front gardens on the Estate since it is considered that
further proliferation of such car parking will adversely affect local amenities
and the environment.
I am satisfied
on the basis of the documentary evidence before me that Mr Mosley is mistaken
in his recollection when he told me that the new policy had been agreed upon in
about October 1986. It seems to me reasonably clear that the agents and at
least one of the trustees had been indicating that enough was enough and that
no more consents would be granted. Mr Mosley may well have taken the view in
October 1986 that, had a consent been applied for, the trustees, as a body,
would probably turn it down. But it is also reasonably clear that the new
policy was formally adopted at the same time as the defendants’ application
came up for consideration. Not much turns on this, in my view, because I am
satisfied by the evidence of both experts that a change in policy in such
circumstances is not in principle unreasonable, for the obvious reason that
factors change and a line may have to be drawn somewhere. The only justifiable
reason for not applying the new policy to the defendants would be if they had
had some kind of legitimate expectation that the old policy would be applied to
them and they had in some way acted to their detriment on that basis. On the facts
of this case, the defendants contend that they were unaware of the scheme, let
alone a policy in relation to the operation of the scheme, until the beginning
of December. By that time their work was substantially complete. Nothing that
the trustees had done in the past induced the defendants to act in buying the
property or commencing the work. The highest it can be put in their favour is
that they will have seen other car hardstandings when they bought their
property and may have thought that there would be no difficulty in achieving
the same for themselves. They made no inquiries of any of the owners about
their hardstandings before they did their own work and applied for consent.
That falls well short of establishing any factual basis for contention that the
trustees could not reasonably apply a new policy to their application for
consent. In any event, trustees are not bound to give advance notice of their
policies nor does consistency always predominate over other considerations. In
my judgment, there was nothing in the way in which the trustees took their
decisions to prevent their decision from being reasonable.
I therefore
turn to the facts relating to no 52. The owner of no 52 proposed to carry out
certain works for which permission of the trustees was required, including the
creation of a hardstanding. He applied to the agents through his own agents and
on September 10 1986 the agents wrote apologising for having failed to
acknowledge a letter in July and saying that the matter was receiving attention.
They continued:
As explained
to you over the telephone there should be no difficulty in principle with
regard to the proposals for the front forecourt.
The author of
that letter gave evidence before me. It seems clear that he believed that the
old policy would apply and that, because other consents had been forthcoming in
Argyll Road, the trustees would not be in a position to refuse their consent.
Accordingly, he allowed the work to progress without insisting that the
trustees’ consent was obtained beforehand. The trustees were minded to refuse
their consent, but the owner, a lawyer, took the point that the trustees were,
in the circumstances, estopped from complaining about a lack of consent and
could not reasonably refuse to give it. Reluctantly, the trustees acquiesced.
It is no part of my function to adjudicate upon the rights or wrongs of the
owner’s contention. It is sufficient to say that, in my judgment, the trustees
were entitled to take the estoppel argument into account and I do not think that
their refusal in the case of no 15 became unreasonable because they gave way in
relation to no 52. There was a sufficient difference between the
the estoppel argument, it is clear that the trustees would have refused consent
to no 52. In the result, the appearance and size of the hardstanding at no 52
is substantially worse than that at no 15 and the trustees regret that they
felt compelled to permit the development at no 52.
For all these
reasons, therefore, I have come to the conclusion that the trustees were
reasonably entitled to reject the defendants’ application for consent. In
short, the new policy is, as I find on the evidence, one which a reasonable
body of trustees could reasonably adopt and the application of that policy to
the defendants’ application for consent was also reasonable in all the
circumstances.
Finally, I
turn to the remaining issues as to the defendants’ state of mind and the
progress of the work. My findings of fact may be shortly stated:
(1) I accept that when the defendants bought
their property they were unaware of the existence of the scheme. They were
being advised by solicitors and were entitled to rely on them to draw attention
to any provisions in the legal documents which they signed, to which their
attention should have been drawn. It appears clear from the evidence of both
defendants, and from the documents disclosed, that their solicitors did not
draw their attention to the scheme or its provisions and the defendants’
failure to notice the wording on the transfer is, in my view, entirely credible
and understandable.
(2) While I accept that the defendants feel
strongly about the desirability of off-street parking, both in terms of the
safety of unloading children and in terms of convenience, I reject Mr Cooper’s
evidence that he was led to believe by his surveyor’s report, prepared at the
time of purchase, that off-street parking could be available on application to
the local authority. What he was clearly told was that there was no garage or
off-street parking but that he could apply for a residents’ parking permit.
(3) I am prepared to accept, with some
hesitation, Mr Cooper’s evidence that he failed to notice or pay attention to a
mention of the estate’s consent in his builder’s quotation. However, I reject
as incredible his contention that he was advised by the surveyor who was
supervising the works that no consents were required. The surveyor was not
called. There is no documentary evidence to suggest that Mr Cooper is right on
this point; in any event, if he had been so advised, he would surely have
raised the matter with the surveyor when he received Frere Cholmeley’s letter
advising him that consent was required. Not only did he not do so but he told
me that the thought had not crossed his mind.
(4) On the issue as to the state of the relevant
works as at the date of the agents’ inspection, had I been faced only with Mr
Cooper’s evidence I would have concluded that the agents were correct and that
at that time the new paving stones had not been laid. However, his evidence was
supported by his wife, her father Mr Charrington, and by the evidence of Dr
Cooksey, the owner of no 33. I did not regard Mr Charrington’s evidence as of
much assistance. I do not doubt the truth of what he said, but I am not
satisfied that he was able satisfactorily to link the occasion when he first
drove on to the hardstanding to the date in November when he was unquestionably
up in London with his daughter and son-in-law. I have no hesitation in
accepting what Dr Cooksey told me, confirmed as it was by an entry in her
diary. At least by the end of the day on December 5 1986, the new pavings had
been laid and the hardstanding was, so I find, substantially complete. The
agents’ representative, who was equally impressive as a witness, must, I think,
have been mistaken, unless the paving stones had been laid between the time of
his visit and the end of the day. I am also prepared to accept that such work
as was done to the hardstanding thereafter was very much in the nature of
tidying up. They did put in an upstanding wall at the end of the drive-in and,
apart from ornamental work, allowed the council to remove a bite out of the
pavement and paint a yellow line. In my view, Mr Cooper was quite wrong to lead
the agents to believe that the council had given their consent to this work by
the time the agents became aware of the hardstanding. That was not the case, as
is demonstrated by his letter, sent on the same day, to the local authority.
His error in this respect, if such it was, must have been deliberate.
(5) I accept that Mr Cooper produced to the
agents a photocopy of a photograph which he had been given by Dr Cooksey and
that it was not of no 15, and I am quite prepared to accept that he did not
intend to mislead either the agents at the time or the court during the trial
on this matter.
While I can
fully understand the trustees feeling some sympathy with the defendants, to
whom this hardstanding would obviously be of benefit, I do not consider that it
would be a proper exercise of my discretion to refuse the plaintiffs the
equitable relief which they seek having regard to all the facts which I have
found.
I have been told
that the trustees will be content with a nominal damages award of £5 for the
defendants’ breach of covenant and I make that award. As to the form of relief,
I will hear counsel, but my understanding is that the trustees would be
content, in the first instance, with a declaration that their consent was
reasonably refused. I take the view that they are entitled to an order of
reinstatement and if the defendants do not themselves reinstate the front
garden then the court will be willing to make such orders as are necessary to
achieve that end and there will be liberty to apply.
