[2004] EWLands LP_8_2003 (28 January 2004)
	LP/8/2003
	
LANDS TRIBUNAL ACT 1949

Restrictive Covenants – Entitlement to benefit – Building Scheme – No evidence of notice of common understanding --  Exclusion of benefit of covenant in later conveyances – Effect on subsequent purchasers – Law of Property Act 1925 S.78 – Costs on Preliminary issue.

IN THE MATTER OF SECTION 84 OF THE LAW OF PROPERTY ACT 1925 AND IN THE MATTER OF WEALDEN LAND LIMITED AND IN THE MATTER OF TITLE NUMBER K31987 AND IN THE MATTER OF 30, THE RISE, SEVENOAKS, KENT

BETWEEN
WEALDEN LAND LTD
Claimant
and

MR B AND MRS K NAYLOR – PERROTT AND OTHERS
Respondent

Re: 30 The Rise, Sevenoaks, Kent, TN13 1RQ

Tribunal Member:  His Honour Judge Michael Rich QC

Sitting at 48/49 Chancery Lane, London WC2A 1JR
On 20 January 2004

The following cases are referred to in this decision:

In re Dolphin’s Conveyance Birmingham Corporation v. Boden [1970] 1 Ch 654
Elliston v Reacher [1908] 2 Ch 374
Reid v Bickerstaff  [1909] 2 Ch 305
Roake v Chadha [1984] 1WLR 40
In re Wembley Park Estate Co. Ltd’s Transfer [1968] 1Ch. 419

Appearances:
Mr Mark Sefton of counsel instructed by Steadmans for the Applicant;
Mr and Mrs Naylor-Perrott of 37, The Rise, Sevenoaks, objectors in person
Mr and Mrs Wells of 41, The Rise, Sevenoaks, objectors in person
Mr and Mrs Fitzgerald of 28, the Rise, Sevenoaks, objectors in person
Mr Jeremy Smith of 14, the Rise, Sevenoaks, objector in person
Mr and Mrs Kemsley of 32, The Rise, Sevenoaks, objectors in person

DECISION ON PRELIMINARY ISSUE

INTRODUCTION

1.	By an application dated 20th February 2003 the freeholder of 30, The Rise, Sevenoaks, applied to the Tribunal for the modification of two restrictive covenants affecting different parts of the land now comprised within a single title.  The first, which affects the larger part of the site, was imposed under a conveyance from Seven Oaks Land Company Limited (to whom I shall refer as “Land”) to Harry Alexander Gosling dated 26th June 1946.  The second affects a plot of land with a frontage to the Rise of 60 feet, of which half has been incorporated into the applicant’s title, and has been referred to as “the mauve land”.  The restriction in respect of the mauve land was imposed in a conveyance from Land to Maxwell Stern dated 4th September, 1946. 

2.	The application stated in paragraph 7, that 
“the applicants are unable to identify the land to which the benefit of the covenant is attached (if any)…The applicant will therefore invite the Tribunal (without prejudice to any contention that might later be advanced as to the entitlement of particular objectors) to assume that the benefit of the covenants attaches to all the land in the immediate neighbourhood of the burdened land.”  

The Tribunal, in accordance with its usual practice in such circumstances, required the application to be advertised and notice of it to be given by post to the owners of some thirty neighbouring properties.

3.	In response to such notices, the owners of five properties in The Rise returned forms of Notice of Objection.  Such forms include a section B headed “Legal Entitlement”, with a note “It is not possible to object except by claiming to have a legal entitlement to the benefit of the restriction”.  Each objector was therefore required to set out the basis of his claim to be so entitled.  The form gives examples “that the objector is the original covenantee; or that the objector owns land of which the title shows that the benefit runs with it; or that there is a building scheme”.  The objectors did not all use the same form of words in claiming the benefit of the covenants, but each made some reference to their properties and the application land being part of the “White Hart Estate.”

4.	The applicant did not admit the objectors’ entitlement to the benefit of the covenants.  Accordingly on 10th July 2003 the Registrar ordered that the question of the legal entitlement of  the five objectors (treating joint owners as one) to be admitted to oppose the application be determined at a preliminary hearing.  That is the question which this Decision determines.

5.	The Registrar’s Order had required the objectors to forward the documents upon which they relied to prove their entitlement to the benefit of the restrictions.  The objectors duly forwarded their documents of title to their properties.  As, however, it was not apparent from these, that the benefit of the covenants was indeed attached to the objector’s properties, I directed that the objectors should provide statements of their case and copies of any additional documents upon which they proposed to rely.  Each objector replied separately but each relied on a building scheme providing mutually enforceable covenants throughout the White Hart Estate, of which their properties and the application land form part.
6.	In the course of the hearing more than one of the objectors addressed me on one matter or another, but they all agreed that Mr Naylor-Perrott should act as spokesman for all, and that they would present a joint case.  No evidence was adduced other than various documents of title to which I must refer in detail.  It is therefore most convenient that I trace the relevant conveyancing history, without separate reference to the individual statements of case.

HISTORY OF WHITE HART ESTATE

7.	The Charges Register for the applicant’s land refers to a conveyance dated 5th June 1935 between Lord Sackville and various other parties including Land called in the conveyance “the company”.  I shall refer to this as “the Sackville conveyance”.  The conveyance sets out the title of each of the parties to convey to Land an area of 101.849 acres shown on a plan as being to the west of the Sevenoaks to Tonbridge road opposite to Knole Park, Lord Sackville’s residence.  The plan delimits different areas as being for “private dwelling houses only” costing not less than £800, £900 or £1,000 each according to area, and one area for houses costing not than £300 each and not more than 6 shops.  By clause 2 of the conveyance:

“The Company [that is Land] to the intent and so as to bind (so far as practicable) the      property hereby assured into whosesoever hands the same may come hereby covenant with Lord Sackville that the Company and its successors in title and assigns will observe and perform the stipulations restrictions and covenants specified in the second schedule.”

The second schedule then contained covenants not to erect properties of less value than shown on the plan or less than 40 foot frontage. There are also covenants as to user including:  

“(iv) not to do or suffer to be done upon the said land or any part thereof or in any buildings erected thereon anything which may be or become a nuisance or annoyance to Lord Sackville or any person claiming under him or to the owners or owner occupier or occupiers of adjoining premises”.

8.	There can be no doubt that Land took the 101 odd acres for development, and the objectors have obtained from the Land Registry a copy of a plan bearing the Registry’s stamp and the date 11/37, which reproduces the plan attached to the Sackville conveyance, with its indication of areas for particular value houses, upon which the area has been divided into lots and the original title numbers have been allocated.  The present title of no.30 incorporates two such plots (although one was not a building plot) and half of the mauve land, which is shown as a plot of which the other half is now included in the title to no.28, Mr and Mrs Fitzgerald’s property.  I find as a fact that such lotting was undertaken by or on behalf of Land before plots were sold on by Land to any of the predecessors in title of the objectors.

9.	The first such transfer is recorded on the title of 14 The Rise, being a transfer dated 22nd March 1938 from Land to Fred Jarvis, from whom Mr Smith derives his title by the conveyance of the house to him and his wife on 6th May 1992.  Such transfer is recorded in the Charges Register to have contained a covenant as follows:

“The purchaser to the intent to bind himself and his successors in title to the land hereby transferred and so that the covenant shall enure to the benefit of and protection of the land and every part of such land belonging to the Vendors being part of the White Hart Estate covenants [to] …observe .. the .. covenants referred to in the Charges Register [i.e. those in the Sackville conveyance] .. and also those contained in the First Schedule hereto .. and will indemnify the Vendors against all actions .. in respect thereof ..”

The First Schedule then contains restrictions including “(1) No house shall be built upon a plot having a frontage of less than sixty feet.  In each Lot not more than two thirds of a frontage may be built upon (excluding garage and outbuildings).”

10.	Mr and Mrs Naylor-Perrott derive the title to 37, The Rise, conveyed to them on 25th October 1999, from the transfer from Land to Mary Margaret Bett dated 2nd December 1938.  In that Transfer she covenanted “for the benefit and protection of the remainder of the land comprised in title No.K19919 and with the intent that the same shall be binding so far as may be on the owner for the time being of the property hereby assured .. that the Purchaser and her successors in title will ..observe .. the restrictions.. set forth in the Second Schedule” The land comprised in Title No.K19919 was the White Hart Estate as shown on the lotting plan dated November 1937.  The restrictions set forth in the Second Schedule included :

“1. Not more than one house shall be built on the land hereby transferred.”

The other covenants, although not identical to those imposed on the first transfer of no.14 are to the same effect and include restrictions upon use.  The stipulations in the Sackville conveyance were registered against the land and duly appear in the Charges Register, but were apparently not the subject of a separate covenant with or indemnity to Land in the conveyance to Betts as in case of 14 The Rise..

11.	Upon the transfer of no 28  by Land to Mr and Mrs Fitzgerald’s predecessor in title (one George Wayte Wood)  a covenant was given to observe and perform the stipulations in the Second Schedule, and the Schedule follows almost exactly the wording used for no.37.  Their title absolute was registered on 26th July 1988.  It is to be inferred that there was a First Schedule repeating the stipulations of the Sackville conveyance but we do not know what covenant Wood gave to Land either to observe those stipulations or indemnify Land in respect of breaches of them or both.  The covenant given in respect of the Second Schedule restrictions is however again different in form:

“ The purchaser to the intent that this covenant may so far as possible bind all persons who are now or shall hereafter become entitled to any estate or interest in the property hereby transferred or any part thereof and to the intent that this covenant shall enure for the benefit of and protection of the land and every part of the White Hart Estate at Sevenoaks aforesaid hereby covenants with the Vendors and the owners from time to time of the said White Hart Estate that.”

So far as the evidence adduced before the tribunal goes this is the only instance in which the covenant to observe such, effectively standard form restrictions is expressed to be given not only “for the protection of every part of the Estate” but also with not only the Vendors but also “the owners from time to time of the said White Hall Estate”.

12.	Although the evidence is sparse and no attempt has been made to discover the progress of development during those years, it may well be a proper inference from such evidence as has been adduced before the Tribunal, that upon the transfer of plots effected by Land before the outbreak of War in September 1939, Land took covenants expressed to be for the benefit and protection of the White Hart Estate, restrictive of the manner and density of building and the use of the land sold.  Such covenants however were in two cases out of three expressed to be with the Vendors only and in the case of the Wood conveyance “the owners from time to time of the White Hart Estate” may be construed as the owners from time to time of the remainder of the Estate, rather than the owners from time to time of the Estate and each part of it.

13.	The Tribunal has no evidence as to what happened to the Estate during the War, but Land resumed the sale of plots after the War.  Two of such sales were to the applicant’s predecessors in title.  The transfer to Gosling dated 26th June 1946 included a covenant to indemnify Land in respect of any breach of the covenants in the Sackville conveyance, and a separate covenant with Land to observe the restrictions in the Schedule to the transfer.  This Schedule includes a restriction to one house only on the land conveyed to Gosling, as well as similar, but more extensive restrictions than those contained in the pre-war transfers.  It is however expressly provided that “the Transferee shall not be entitled to any ..right of light or air or otherwise which would restrict or interfere with the free use of any adjoining or neighbouring land belonging to the Transferors for building or other purposes.”

Accordingly there is added to the schedule of restrictions paragraph 13 as follows:

“The Vendors reserve the right to alter the lotting of the remainder of their Estate … (i) and to sell any plot free from the stipulations and restrictions contained in the Second Schedule hereto or any of them (ii)  and to release any plot from the said stipulations and restrictions or any of them (iii) and no purchaser shall be under any obligation to any other purchaser in respect of the said stipulations and restrictions (iv) and shall not be entitled to have assigned to him the benefit of any other covenant by any purchaser whose plot shall have been previously conveyed (v)  and the Vendors shall not be bound to enforce the performance of the said  stipulations and restrictions or any of them. (vi)”

I have added numbers after each phrase of the paragraph to facilitate reference back.  The reference in (ii) to the Second Schedule appears to be a misreference: study of subsequent conveyances would indicate that in the standard form in use by Land these covenants were indeed in a second schedule whilst the stipulations contained in the Sackville conveyance were in a first schedule; but even without such material the reference is evidently a mere clerical error which does not mislead.  It must therefore be read as a reference to the only schedule in the Transfer.

14.	The Transfer of the mauve land by Land to Maxwell Stern, who appears to have been the owner of what is now 28, The Rise, is dated 4th September 1946.  He entered into a covenant “with  the Vendors for the benefit of the White Hart Estate .. belonging to the Vendors and every part thereof to observe and perform the stipulations and restrictions set out in the 3rd Schedule hereto”.  The 3rd Schedule includes a restriction that “1. Not more than one house shall be built upon the land hereby agreed to be sold the plot of land on which each house stands to have a frontage to the Rise of not less than 60 feet.”  Although the restriction as to frontage of “each house” on the transfer of a single plot is a little difficult to understand, the restriction preventing the building of more than one house on the whole of the mauve land is clear.  This schedule did not include a paragraph in the form of paragraph 13 of the Schedule to the Gosling conveyance, but the same exclusion of the grant to the purchaser, of any right “to restrict the free use of any adjoining or neighbouring property for building or otherwise” is found in the Second Schedule to the Stern transfer.  The only reference in this Transfer to the covenants in the Sackville conveyance is a covenant to perform them “so far as the same apply to the land hereby agreed to be sold and are still subsisting and capable of taking effect and to indemnify the Vendors..”  I guess that by this date the draftsman knew that Lord Sackville was dead, and for that reason doubted whether there was anyone left who was entitled to enforce these covenants.

15.	As I have already recorded half of the mauve land has been added to the title of the land conveyed to Gosling, which is now held by the applicant.  One would have expected that upon such a transfer, the parties would have entered into covenants as to the right to build a single house on the whole plot.  It may be that they thought it unnecessary because they each had only a 30 foot frontage.  In any case,  I have no evidence of any such covenant being entered into, and if it was, it has not been registered.  It follows that even if the then owner of no.28 took some restrictive covenant over the mauve land for the benefit of the retained land, now part of the property of Mr and Mrs Fitzgerald, it is not enforceable against the applicant and forms no part of the present application.

16.	Mr and Mrs Kemsley derive their title to 32, The Rise, which was registered with title absolute on 26th September 2001, from a transfer from Land to Edward James Tibbitts dated 17th December 1947.  This was expressed to be “subject to the stipulations and restrictions set out in the Second Schedule hereto”.   Part I of that Schedule is a covenant with Land to observe the restrictions in the Sackville conveyance and to keep Land indemnified.  Part II contains at paragraph 1 a restriction that “not more than one house shall be built upon the land edged pink”, although there may be room for confusion as to whether that is the same as the land conveyed which is said to be edged red.  There follow further restrictions in broadly the same form as were contained in all the other Transfers which I have reviewed.  Paragraph 13 of Part II of the Schedule is in the same terms as Paragraph 13  of the Gosling Transfer (see paragraph 13 of this Decision above).  The first paragraph of Part III of the Schedule contains the like exclusion of any right to restrict building on adjoining or neighbouring property, follows the provision of what appears to be a standard form of agreement in use by Land at that time that the Transfer would expressly exclude the implication of any such grant.

17.	Mr and Mrs Wells registered their title absolute to 41 The Rise on 4th April 1996.  It derives from the Transfer from Land to one Dye, dated 24th March 1948.  That contains a covenant to indemnify the Vendors in respect of any breach of the stipulations in the Sackville conveyance “so far as the same relate to the land hereby transferred and are still subsisting and capable of taking effect”.  Secondly there is a covenant to observe the covenants contained in the second schedule which again restrict the purchaser to one house on the plot and contain restrictions to the same effect as the other Transfers which I have reviewed.  Again however there is included paragraph (xiii)  which is in the same terms as I have set out from the Gosling Transfer in Paragraph 13 of this Decision.

THE ESSENTIALS OF A BUILDING SCHEME

18.	The classic statement of the essentials of what are commonly called building schemes is found in the judgment of Parker J. in Elliston v Reacher [1908] 2 Ch 374.  I will, in citing his judgment restrict myself to what I think are the elements in his rules relevant to this case.  He said at p.384:

“… it must be proved (1.) that both the plaintiffs and defendants derive title under a common vendor; (2.) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, .. for sale in lots subject to restrictions intended to be imposed on all lots ..; (3.)  that these restrictions were intended to be and were for the benefit of all the lots intended to be sold; and (4.) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors.”

19.	There is no issue that the applicant and the objectors derive their title from the common vendors, firstly the vendor under the Sackville conveyance and secondly Land.  Likewise I have already found that Land, previously to selling, laid out the estate for sale in lots, subject to restrictions at least as to the number of houses to be erected on each lot, which Land intended to impose upon all lots.  I am far less certain that the broad designation of areas where development was to be limited to private dwelling houses of different minimum cost, could properly be described as laying out the estate for sale in lots, but it, perhaps, does not matter as there is no covenant in the Sackville conveyance which is the subject of the applicant’s application to modify.  The critical issues in this case arise under rules (3) and (4), and I shall refer to the Sackville conveyance only in so far as it throws light on the satisfaction of these rules in regard to the original transfers from Land.

20.	Mr Naylor-Perrott placed great reliance upon the decision of Stamp J. in  In re Dolphin’s Conveyance Birmingham Corporation v. Boden[1970] 1 Ch 654, which he suggested was a “robust” decision which I should follow by acting equally robustly.  I am afraid that this approach betrays a misunderstanding of how the Courts seek to apply the law.  As Mr Naylor-Perrott acknowledged Stamp J. had indeed stated the law very trenchantly when he said at p.661 E :

“It is trite law that if you find conveyances of the several parts of an estate all containing the same or similar restrictive covenants with the vendor, that is not enough to impute an intention on the part of that vendor that the restrictions should be for the common benefit of the vendor and of the several purchasers inter se: for it is at least as likely that he imposed the for the benefit of himself and of the unsold part of the estate alone.”

As Mr Sefton pointed out in his argument the same point had been made two years earlier by Goff J. in In re Wembley Park Estate Co. Ltd’s Transfer [1968] 1Ch. 419 when he said at p.502 on the facts that had been proved in that case “If I were to decide this case in favour of the defendants it would come down …to implying a building scheme from no more than a common vendor and the existence of common covenants.  No case goes anything like so far as that and I think it would be going too far.”

21.	In order to understand the decision in Dolphin’s case, it is necessary to identify what more than the common vendor and common covenants justified his decision in that case.  The reason why Stamp J. held that the covenants in that case were mutually enforceable between the successors in title of the original covenantors was because, as he held, the conveyances themselves disclosed the necessary intention that they should have that effect.  He pointed at p. 661 to the vendors’ covenant that on the sale or lease of any part of the Estate 

“ ‘it shall be sold or leased subject to the stipulations above mentioned … and that the vendors their heirs or assigns will procure a covenant from each purchaser or lessee upon Selly Hill Estate to the effect of those ..stipulations’ What” Stamp J. asked, “was the point of it?  For what possible reason does a vendor of part of an estate who has extracted restrictive covenants from a purchaser covenant with that purchaser that the other parts of the estate, when sold, shall contain the same restrictions, unless it be with the intention that the purchaser with whom he covenants, as well as he himself, shall have the benefits of the restrictions when imposed.”

That is the reason why he found at p.662 that “As a matter of construction of the conveyances ..what was intended, as well by the vendors as the several purchasers , was to lay down what has been referred to as a local law for the estate for the common benefit of all the several purchasers of it.”

22.	In the Gosling Transfer dated 26th June 1946, paragraph 13 of the Schedule has precisely the opposite effect.  Phrase (ii) as I have identified it in Paragraph 13 of this Decision, entitles the Vendors to sell further plots on the estate free of any restriction.  Phrase (vi) makes clear that the Vendors are not bound to enforce any existing covenants which, in any case if they were so bound would indicate that the covenantors did not have the right between themselves.  Phrase (v) specifically excludes the covenantor from being entitled to the benefit of covenants taken on earlier sales.  The evidence of this Transfer, in contrast to the conveyances considered in Dolphin’s case not merely fails to support the relevant intention, it contradicts it.

23.	The objectors suggested that paragraph 13 had been added to the conveyances post-war in order, as they put it, “to liberate” the Estate from a building scheme which had already been established pre-war.  It can be observed that the conveyancing practice of the Estate was not consistent over the years.  Although paragraph 13 is found in the other post-war Transfers from Land to predecessors in title to objectors, it is not found in the Transfer of the mauve land to Stern dated 4th September 1946.  None the less, as I noted in paragraph 14 above, the Transfer excludes any grant to Stern of rights to enforce covenants.  Thus the transaction lacked the mutuality which is an essential ingredient of the concept of a “local law”.

24	I assume for the purposes of this Decision, although the matter was not argued before me, that if an effective  building Scheme had been established pre-war, such that any pre-war covenantor was entitled to have Land impose similar covenants on subsequent sales and would then themselves be entitled to enforce such covenants, that the sale of land on the estate without granting the like rights to the purchasers would not affect the rights already granted to those who did have the benefit of such a Scheme.  In other words “liberating” the post-war estate from a pre-war Scheme would not prevent the beneficiaries of such pre-war Scheme from enforcing covenants such as were envisaged in the Scheme against post-war covenantors.  It is therefore necessary to consider whether there is evidence to justify the finding of a pre-war Scheme.

25.	I return to Elliston v Reacher.  At p. 385 Parker J. gave the following further guidance:

“..if the first three points be established, the fourth point may readily be inferred, provided that the purchasers have notice of the facts involved in the three first points; but if the purchaser purchases in ignorance of any material part of those facts, it would be difficult, if not impossible, to establish the fourth point.”

In that case, he was able to recite facts at pp. 390-391 which led to the conclusion that the predecessors of both the plaintiffs and the defendants did have notice of the relevant intentions of the common vendor.  He referred to the form of advertisements, the availability of plans of the estate, conveyances by reference to plans of the whole estate and standard printed forms showing the restrictions.  There was also a copy of an unexecuted  engrossment which, none the less gave notice of the vendor’s intention that the covenants should enure for the benefit of all the lots offered for sale.

26.	Standard conveyancing practice would include in the transfers of lots, a recital of the vendor’s intention and that the purchaser purchases upon that understanding.  Mr Sefton relies on the decision of the Court of Appeal in Reid v Bickerstaff [1909] 2Ch 305 to dissuade me from doing what the objectors urge me to do, namely to infer a building scheme without there being any such evidence as Parker J. found in Elliston v Reacher.  The Court of Appeal came to the conclusion in that case, that Joyce J. had not been justified in drawing the relevant inference in the absence either of such recitals or other evidence.  Kennedy L. J. said at p.326 :

“It is not, I think, improbable that if we knew all the facts in regard to this case as they happened, the judgment under appeal would be justified.  The lapse of sixty and more years since the predecessors of the plaintiffs and the defendant respectively bought from the trustees of the Falkner estate has no doubt done its natural work in blurring or in part effacing the history of the material epoch.  From the evidence as it stands, I do not feel myself entitled to draw the inference which Joyce J. was obliged to draw in order to justify his conclusion in favour of the plaintiffs.”

In the present case the objectors have expressed their fervent belief that the facts of the original disposition of plots on the White Hart Estate, if known, would support their claim.  They have however not attempted any research beyond enquiry as to the documents of title, to establish whether the passage of time has effaced the history of the material epoch.  I was concerned at their presenting their case on this basis, and offered them the opportunity to apply for an adjournment in order to obtain legal advice.  They declined.  Accordingly I am, as Kennedy L.J. put it in Reid v Bickerstaff [1909] 2 Ch 305 at p.327 :

“bound to deal with the evidence as it stands, and shun conjecture, however plausible and attractive, by keeping carefully within the bounds of legal inference..”

27.	Mr Naylor-Perrott relied on the form of the covenant at paragraph (iv) of the 2nd Schedule to the Sackville conveyance as indicating an intention on Lord Sackville’s part that the residents of the estate should have the benefit of the covenants taken by him.  The covenant is, however, expressed in clause 2 of the Conveyance, to be with Lord Sackville and no reference is there made to his assigns or to persons claiming under him.  It is only the form of the restriction itself which prohibits nuisance or annoyance not only to Lord Sackville but also “or any person claiming under him or to the owners .. of adjoining premises.”    In the context of a conveyance of the whole 101 acres, owners of adjoining premises does not mean persons who become owners of adjoining parts of the estate once divided and sold.  It means Lord Sackville’s own neighbours.  Occupiers of the land conveyed would be persons claiming under Lord Sackville only if he assigned the benefit of the covenant taken for himself to others.  There is no evidence that he did so.  For these reasons I cannot construe the conveyance as being apt to have created a building Scheme before Land laid out the estate, or otherwise indicative of a scheme of mutual covenants.

28.	I have summarised the effect of the pre-war conveyances by Land in paragraph 12 above.  In only one case is there a form of words which might be construed as a covenant with other owners of plots on the Estate, and that is equally capable of being construed otherwise.  There is no evidence from any document produced to the Tribunal or otherwise that the pre-war purchases were on the footing that the restrictions were to enure for the benefit of other lots included in some general scheme, as opposed to merely for the benefit of other land retained by the Vendor .  There has been no such evidence of advertisements for plots or of what purchasers were told before the original purchases from Land as founded the conclusion which Parker J. reached in Elliston v Reacher.   I am therefore forced to the conclusion that I must reject the objectors’ claims to be legally entitled to the benefit of the two covenants affecting the applicant’s land, or either of them , by virtue of a building Scheme affecting the White Hart Estate.

ENTITLEMENT OF SUBSEQUENT PURCHASERS

29.	Transfer dated 4th September 1946 of the mauve land to Stern was expressed to be “with the Vendors for the benefit of the White Hart Estate.”.  Those words refer to an identifiable area and would be sufficient to annex the benefit of the covenant to plots within such area which were sold by the covenantee subsequently to the grant of the covenant, by virtue of s. 78 of the Law of Property Act 1925.  The properties of Mr and Mrs Kemsley (no. 32) and Mr and Mrs Wells (no.41) are on plots sold to their respective predecessors in title subsequently to the taking of the covenant over the mauve land “for the benefit of the White Hart Estate” from Stern.

30.	Mr Sefton however refers me to the decision of Mr Paul Baker QC,  sitting as a Judge of the Chancery Division, in Roake v Chadha [1984] 1WLR 40 where he held as set out in the headnote at p.41 “although under the provisions of section 78 no express terms were required for the benefit of a covenant relating to land to be annexed to the land, the section could not have effect irrespective of the terms of the covenant.”  By the same reasoning, the deeming provisions of s.78 must be subject to the terms of the conveyance of the land which is to be deemed to have the benefit of the covenant annexed.

31.	The Transfers of each of these plots include in each case that paragraph 13 which I have set out and annotated in paragraph 13 of this Decision.  Phrase (v) of this paragraph expressly excludes the transferee’s right to assignment of the benefit of any covenant, with the effect, in my judgement of  avoiding the deeming provision of s.78.  If it did not have that effect it would deprive the vendor of the right reserved under phrase (iii) to release any plot from restrictions.

32.	For these reasons I have concluded that those deriving title from Transfers subsequent to the Transfers from which the applicant derives its title are in no better position, for that reason, to claim entitlement to the benefit of the covenants affecting the applicant’ land.

CONCLUSION

33.	I must, for the above reasons, determine that none of the objectors is entitled to be admitted to oppose the applicant’s application for modification of covenants.

COSTS

34.	I heard argument as to costs contingent upon my decision.  The Objectors make no application, but the applicant has applied for an order as to costs to be made in its favour, if it is successful, as it has been, in resisting the Objectors’ claim to be admitted to oppose its application for modification.

35.	It is the practice of the Tribunal in dealing with the costs of applications under s.84 of the Law of Property Act 1925, to modify or discharge restrictive covenants, to have regard to the fact that the applicant is applying for the grant of a privilege, depriving the objector of a property right.  For this reason costs do not necessarily follow the event of a successful application, unless the objectors have behaved unreasonably.  Where however an objector lays claim to an entitlement which he fails to establish, and thereby puts an applicant to expense, the usual rule, namely  that costs should follow the event unless there are special reasons, in the conduct of either party, to justify a different course, should, in my judgement, apply.

36.	Mr Naylor-Perrott  pleads that to award costs to the applicant would be to penalise the objectors for trying to protect the status quo.  That might be a reason not to award costs on the determination of the applicant’s application, if the objectors had been entitled to appear on it, but what was being determined before me was the objectors’ mistaken claim to be entitled to the benefit of the covenants by which they hoped to protect the status quo.

37.	He makes the point also that the objectors abstained from incurring legal costs and do not ask for any even if they are successful.  It may be that if they had incurred costs on obtaining advice as to their entitlement they would not have put the applicant to the cost of resisting their application to be admitted to object.  Their position cannot, however, disentitle the applicants to an order for costs, to which it would otherwise be entitled.

38.	I am told that the objectors sought the advice of a clerk at the Tribunal as to their risk as to costs.  He either advised or, at the least was understood to have advised, that the position which I have described, as the usual approach on determination of an application for modification, was also the position on such a preliminary issue as I have determined.  The objectors however clearly understood that costs were a matter for the Tribunal’s discretion, and I am bound to exercise such discretion judicially.  I do not think that I can properly exercise such discretion against the applicant, because of such advice obtained from a clerk, who I am confident, was not thought to be entitled to commit the Tribunal in any way.

39.	The objectors claim to have been misled by paragraph 7 of the application (which I have set out at paragraph 2 of this Decision) into thinking that their claim to entitlement was admitted.  If they were so misled, they could not possibly have so understood, at any rate from the date when the Registrar ordered the preliminary issue, and the applicant’s application is for costs, confined to that issue, only from that date, namely 10th July 2003.

40.	Finally Mr Naylor-Perrott complained that he had received a skeleton argument together with copies of authorities and a bundle containing the relevant documents in paginated order only on the day of the hearing,  I do myself regret that I was not in a position to give the direction to the objectors asking them to set out their statements of case until 22nd December, 2003 for a hearing fixed for the 20th January 2004.  I did not in the circumstances think that it was fair to require litigants in person, who, so far as I knew, were acting individually, to prepare the kind of bundle whose preparation on behalf of the applicant, greatly assisted the hearing.   The objectors had not, I fear properly understood what would be needed to enable me to follow the conveyancing history of seven separate properties.  I am grateful that the applicants made up for their failure, and so should they be.  As to the delivery of the skeleton and authorities only on the day of the hearing, Mr Sefton rightly apologised, and I rose to allow time for the skeleton to be read and discussed by the objectors  Mr Naylor-Perrott for his part produced the Re Dolphin Case, without notice or a copy,  or any consciousness that he might owe the same consideration to Mr Sefton as he expected of him.  In the absence of any specific direction as to the preparation and exchange of skeleton arguments, I cannot say that the applicant has been guilty of such misconduct as to make it appropriate to deprive it of any part of its costs.

41.	Accordingly I would order that the objectors should pay the applicant’s costs of the preliminary issue from 10th July 2003 to be assessed on a standard basis if not agreed, and for the avoidance of doubt I declare that each objector should be jointly and severally liable for such costs.

							Dated 28 January 2004

							(signed)  His Honour Judge Michael Rich QC