Development – Agreement to transfer amenity land to plaintiff – Vendor required to show land “required” for development in order to retain land – Whether amenity land “required ” within meaning of covenant – Meaning of “required” – Judge ordering specific performance – Appeal dismissed
In 1964 permission was given for the development of a new village, New Ash Green, with appropriate services and communal facilities for between 5,000 and 6,000 people between the villages of Ash and Hartley in Kent. Before development began, an agreement was entered into with the plaintiff on September 29 1967, which included a covenant by the vendor, an associated company of Span Developments, to transfer to the plaintiff, for a notional consideration, amenity land within the village but in its completed form, so that by 1988 all such land as was not then required by the vendor for development, or a total of 40 acres, whichever was the greater, would be transferred. An area of 67 acres, the “northern” land was amenity land within the covenant and the defendant, one of the Bovis companies who took over the development from Span Developments, was bound by the covenant.
A dispute arose as to whether the “northern” land was, by 1988, “required for development” by the vendor. The judge construed the words “required for development” against the factual background that the total site for which planning permission had been granted extended to some 423 acres, and that since the concept involved the development of only some 190 acres out of that total area, it was clearly within the contemplation of the parties that development beyond that orginally proposed might be undertaken in the period until the beginning of 1988. He concluded that “required for development” implied both a subjective intention on the part of the vendor to develop and an objective capacity to carry out that intention, and made an order for specific performance.
The defendant appealed contending that, subject only to the requirement of good faith, which was not in dispute, if it “required” the northern land for development, there was no obligation to transfer the land, and the words required no more than that the land should be desired by the defendant for development. It was also submitted that the judge had been wrong to hold that it was necessary for the defendant to show that it required the land for a “specific or sufficiently specific” project of development.
Held The appeal was dismissed.
The judge had not erred in his construction of the covenant. There had to be a development or some project of development for which the vendor could form the view, bona fide, that the land was required. In the absence of a purpose, it was not possible to form the requirement. Therefore, “required for development” meant more than merely required and included some objective element to show that there was a reasonable prospect of development being available.
Harry Wolton QC and David Stockill (instructed by the solicitor to Bovis Homes) appeared for the appellants; Vivian Chapman (instructed by the Jarman Partnership, of Sittingbourne) appeared for the respondent.
