ON APPEAL FROM CHANCERY DIVISION
(MR BERNARD LIVESEY QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT).
Royal Courts of Justice
Strand,
London, WC2A 2LL
Before :
LORD JUSTICE POTTER
LORD JUSTICE SEDLEY
and
LORD JUSTICE CARNWATH
Between :
Well Barn Shoot Limited And Well Barn Farming Limited | Appellants |
- and - | |
Gerald Henry Shackleton And Alan Michael Robert Shackleton | Respondents |
(Transcript of the Handed Down Judgment of
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Mr Anthony Mann QC and Miss Caroline Hutton (instructed by Morgan Cole) for the Appellants
Mr John Furber QC and Mr Rupert Reed (instructed by N.C. Brothers & Co) for the Respondents
Judgment
Lord Justice Carnwath:
Background
The claimants are the owners of the Well Barn Estate (“the Estate”) at Moulsford, Oxfordshire. Mr Osmond is their sole shareholder and managing director. The estate is predominantly a shooting estate and extends to approximately 1,500 acres. The defendants are the owners of Warren Farm, over which the Estate has shooting rights. The farm consists of a farmhouse, two barns and a number of outbuildings in a farmyard, together with an area of garden and grazing land amounting to about 13 acres.
Mr Shackleton (described by the judge as a forceful and “cantankerous” personality, but a straightforward witness) has occupied Warren Farm since 1947, when he took a tenancy from the Estate. It was then a mixed farm of some 300 acres, the sporting rights of which were reserved to the Estate, which was owned by the Vandervell Family. In 1989 the Vandervells sold the Estate to Mr Thomas Greenham and his wife. Their attempt to increase the rent on Warren Farm (unchanged since 1948) was greeted by “lack of amusement” on the part of Mr Shackleton, then 70 years of age. Subsequent negotiations led to him surrendering his tenancy of the farm, and acquiring the freehold of the area of the farm buildings and some adjoining land. His son had by then established an egg production business from the farm buildings, and that continued after the sale.
Warren Farm lies on the western edge of the estate. It is almost entirely enclosed by farmland, and is connected to a public highway called the Ridgeway by a track called Warren Farm Track (“the track”), the base of which is about 10 feet in width. On each side of the track is a grass verge of varying width bounded by a post and wire fence separating it from a field on each side. On the western side is a field of some 8 or 9 acres called Pond Field (or “the green field”). The track, the verges and the green field are in the title owned by the defendants. On the eastern side of the track is Warren Field (or “the blue field”), which is owned by the Estate.
During the tenancy the Estate had unrestricted access to all its lands directly through Warren Farm. Access to the blue field had prior to 1991 traditionally been gained from an entrance just inside the farmyard. It could also be gained from the Estate lands to the east but the trek to that field across those lands was long and convoluted.
At the time of the sale, the north west boundary of the blue field was adjusted, and the entrance into the blue field from the farmyard was lost in the redrawing of the boundary line. How it was to be replaced forms the subject of the first issue before us. As the judge found: “the one thing that the Shackletons were adamant about was that the Estate should not have vehicular access for agricultural purposes to or through the farmyard”.
The Transfer
The transfer of the freehold of Warren Farm to the Shackletons was dated 28th June 1991. Two aspects are relevant, the reservation of the sporting rights, and the right of way over the track. The sporting rights were reserved as follows:
“Excepting and reserving to the Vendors and their successors in title a full and exclusive right and privilege with all persons authorised by the Vendor and their successors in title at all times of driving shooting fowling sporting killing and carrying away for his or their own use all manner of game ground game and such snipe woodcock wildfowl and other birds as it shall be lawful to shoot kill or take in over and on the Property TOGETHER with:
(a) the right to enter upon the Property and
(b) the right in common with the Purchaser to kill by any lawful means rabbits hares vermin from time to time on the Property.”
Provision was made for the Estate to pay compensation in the event that the exercise of these rights caused damage.
The transfer also reserved in favour of the Estate a vehicular right of way along the track in the following terms:
“A right of way at all times and for all purposes with or without vehicles over and along the roadway shown coloured brown on the plan attached hereto PROVIDED THAT where the Vendors shall exercise this right of way with agricultural vehicles for agricultural purposes then the Vendors shall contribute a fair proportion according to user of the cost of repairing and maintaining the said roadway. Where, however, the Vendors use of the roadway is in connection with the exercise of their shooting rights or the care of the game or the like then no such contribution shall be payable.”
The extent of the access
Although the available copies of the plan are not very clear, the judge was satisfied, having inspected the original Office Copy Entries and the copy plan that was included in the Charge Certificate, that the brown colouring applied to the track alone, and did not cover either verge. However, as he also accepted, the plan attached to the travelling draft of the transfer had showed hatching in brown covering the verges as well as the track itself and the words “Hatching denotes right of way reserved (clause 11.3)”. There was no evidence of how this came to be changed in the final version; the transfer itself had been engrossed by Mr Shackleton’s solicitors, and sent direct to Mr Greenham and his wife for execution, which they did without reading the transfer or looking at the plan.
This left open the question how, if at all, access from the brown track was to be gained to the blue field, retained by the Estate. As the judge found, Mr Shackleton’s position (which he maintained until shortly before the trial) was:
“… that he knew that the transfer granted a right of way along the brown track, but there was no right to enter the farmyard at the top of the track (“point A”) and no express right to cross his verge at that or any other point; it was therefore a right of way going nowhere…”
The history of the dispute
A dispute about access arose almost immediately, as the judge explained:
“After the 1991 harvest the defendants either erected (or according to them, repaired) the fence on each side of the track so as to make it stock-proof and, in particular, left no point unfenced on its eastern side whereby access might be gained to the blue field. This was first noticed by Mr Lawrence Cull (the Estate’s gamekeeper)… When this fence was erected, Mr Cull spoke to Mr Shackleton pointing out that the Estate had a right of way along the track and was entitled to access from the track onto the field but was told that Mr Greenham should consult his solicitor and had no right to put a gate into the fence of the blue field and that was an end to the matter….”
Correspondence between the land agents on each side followed without resolution of the dispute. However, the dispute did not come to a head at that time, because Mr Greenham had no immediate need for access from the track, and he was considering selling the Estate. In 1993 he sold to a company called Bilton Agricultural Investments Limited, and in 1999 Bilton sold to the claimants.
By this time Mr Shackleton, who was nearly 81 years of age, was considering whether to sell, and was exploring the potential of the site. In September 1999 Mr Thomas, a local developer, offered £1 million for the site as a whole, subject to the granting of planning consent for re-planning the existing house and conversion of the two barns into two additional residential units. Mr Beales of Savills, who were advising the estate, became aware of the possibility of a sale, and thought there might be an opportunity to benefit the Estate. He was instructed to investigate.
The judge gave a vivid description of the state of Warren Farm at this time (drawing on Mr Beale’s account):
“The farmhouse was originally 3 cottages which had been ‘put together’; there were two quite ‘nice barns’ in roughly the centre of the farmyard. Around were a whole collection of ‘absolutely dreadful’ buildings interspersed with dozens and dozens of rusted agricultural machines and wrecked motor vehicles, boats and trailers and all manner of rubbish and junk. As regards the ‘dreadful buildings’ these comprised about half a dozen chicken houses where the eggs were produced. Inevitably a large quantity of manure and other detritus was produced; the manure was deposited in heaps along one side of the farm yard. Inevitably, the manure included food scraps. Inevitably the hens, eggs, feed stuffs, manure and detritus provided an attractive environment and breeding ground for rats and other vermin. Witnesses have testified to the abundance and vigour of the rat population. I have not heard of any steps taken by the Shackletons systematically to poison or otherwise control the vermin…. some steps were taken by Mr Cull and his colleagues, by shooting them at night, but that is all that seems to have been done.”
Following Mr Beales’ advice, Mr Osmond agreed to make an offer to Mr Shackleton. As the judge found, he had two main concerns:
“First of all he wanted to secure the integrity of the shoot; that was a reason why he might have been prepared to pay ‘over the odds’ for the Farm. He was apprehensive that the development of the barns might severely impair the commercial viability of his shoot, for reasons with which I will have to deal later in this judgment. Secondly, he wanted to be able to secure a proper access to the blue field.”
On 29th October 1999 Mr Beales wrote to the Shackleton’s agents, offering £800,000 for the Farm. The letter also drew attention in forcible terms to the possible effect of the sporting rights:
“My client has made it clear to me that it would be his intention to fully utilise the rights reserved to him. The sporting rights over Warren Farm have been exercised in the past and will continue to be exercised to the full in the future. When I drew the reservation to your attention you did not think this had any detrimental effect on the potential value of Warren Farm. I would totally disagree with this view point. ...
The only way to prevent any future problems arising would be to merge the interest my client has over Warren Farm with the freehold title. ....
If in the event our offer is unacceptable then I think it only fair that any other potential purchaser is made fully aware of the rights which have been reserved.”
This offer was rejected, and Mr Shackleton made clear that he would accept nothing less than £1m. There were no further negotiations.
In April 2000, Mr Shackleton applied for planning permission, which was eventually granted on 14th June 2001. It was a full permission (not “outline” as it has been described in some of the papers) for “change of use of redundant farm buildings to two residential units”, on a site of 0.3ha, excluding the drive. The conditions required submission for approval of details of landscaping, fences, hard surfaces and external lighting; and also precluded the provision of any “building or enclosure, swimming or other pool… within the curtilage of the dwelling house” without consent. It was subject to a section 106 agreement, which required, before commencement of residential occupation, cessation of the chicken farm use, and demolition of all the buildings on “the blue land”, which was thereafter to be used for grazing only. The attached plan defined the blue land to include everything except the immediate curtilage of the existing farmhouse (“the green land”), and that of the two barns (“the red land”). Comparing this with the photographs, one can see that this would involve removal of four substantial chicken-sheds, and associated clutter, to the south-west of the barns, and two to the north-west. The built area would then be confined to the existing farmhouse and garden, and the site of the two barns. The judge commented:
“The development envelope covers an area of under 2 acres. When constructed there would be a total of 3 separate dwellings on the site. The work of construction is expected to take a year in total, the first 8 or so weeks of which is likely to be extremely disruptive, because heavy machines would be needed to enter and clear the site and perform the essential ground works.”
Securing a proper access
Parallel with these events, disagreements over the access came to a head. Mr Osmond wished to improve the agricultural side of the business, and required proper access to his lands. The judge noted:
“This meant the ability to drive agricultural vehicles with implements or trailers attached along the brown track and, at the top, swinging the vehicle across the verge and through a sufficiently wide opening into the blue field. It was desirable to do this at the top of the track at ‘Point A’; it was the natural point of access for a number of reasons. There was not any turning circle there or at any other point along the track.”
He arranged to put in a gate at this point. Mr Shackleton challenged his right to do so. His solicitor in a letter dated 3rd December 1999 explained that the right of way was “restricted to the track coloured brown which stopped at the farmyard entrance”. Notwithstanding that, a 24ft gate was installed, after removal of some of the conifers, at point A at the top of the track. The gateway was of two galvanised tubular steel gates; each 12 foot in width and attached to a steel post. The gates and posts were on the blue land and opened inwards. Correspondence followed but, as the judge said, “petered out” at the end of January. After completion of the autumn cultivations in December 1999 the claimants had no further need to use the gateway for some time and the issue became quiescent.
The problem recurred in the Spring and culminated in what was described as the “stand off”. The detail is unnecessary for present purposes. It began on the evening of Friday 28th April 2000, when Mr Cull and Mr Osmond were attempting to pass from the blue field down the brown track and discovered that the 24 foot gate had been wired up. It concluded on the morning of Monday 1st May 2000, with a confrontation described by the judge:
“… an employee of the Estate called Barry Ryan was sent by Mr Cull to finish off the ploughing which had been started earlier in the week on land to the north of Warren Farm. His route would take him along the track from the Ridgeway towards the gate in order to enter the blue field and get from there to the lands to the north. At the same time, Mr Shackleton drove down the lane in the opposite direction. Neither could get past the other and neither would give way…. The stand-off was compromised only when the parties agreed that Mr Cull could proceed down the track to the farm yard where Mr Shackleton would allow him to turn the tractor round on condition that he took it straight back down the track. Mr Cull did this and noticed that Mr Shackleton Junior had parked his tractor and dung spreader in front of the 24 foot gate to prevent him entering the field if he attempted to do so.”
On 2nd May 2000 the claimants instituted proceedings in the Oxford County Court claiming appropriate declarations and an injunction. The defendants denied the allegations. They claimed initially that the right of way went nowhere, and counterclaimed for damages for the trespass. They also counterclaimed for a declaration relating to the effect of the proposed development on the Estate’s shooting, expressed in these terms:
“(i) no element of the proposed development (to be carried out in accordance with the Planning Agreement and the Planning Conditions) will necessarily cause (a) any unreasonable interference with the ordinary exercise of the sporting rights or (b) any other breach or derogation from the sporting rights: and
(ii) the Shackletons or their successors in title are accordingly entitled to carry out the Proposed Development (subject to the final grant of planning permission).”
The issues
Two issues remain live before us:
The claimants’ claim for declaratory relief as to the extent of their right of way over a farm track owned by the defendants, alternatively rectification of the transfer.
The defendants’ counterclaim for declaratory relief in respect of their entitlement to develop Warren Farm for residential purposes, notwithstanding the claimant’s sporting rights over it.
Right of way
On the first issue, as it has developed, the ground between the parties has narrowed, for practical purposes, almost to vanishing point. Both started from extreme positions from which they since have resiled. The defendants originally claimed that there was no right of access at all from the track to the blue field. However, by their defence they had accepted that there must be such a right, by necessary implication, the only question being its position and size. Before us, Mr Furber QC also accepted that, even if the right were confined to the brown track shown on the conveyance, that did not mean that there could be no incursion onto the adjoining verges; there was to be implied “some degree of tolerance” (see V. T. Engineering v R Borland Ltd (1968) 19 P&CR 890, 895)appropriate to a track of this nature, for example, occasional use of the verge for passing vehicles, or the overhang required for large agricultural machinery.
On the other side, the Estate in its defence originally sought a declaration that it was entitled to a right of way giving access onto the blue field at any point along the track. However, before us Mr Mann QC accepted that the access must be subject to the limits of reasonableness, and accordingly that the declaration should be limited to access at Point A and “such other points as shall from time to time be a reasonable exercise of the right of way”.He necessarily puts it in that general way, because there is no present need or wish for the Estate to have another access; nor is there any suggestion that the present access is other than “reasonable” for their present or currently foreseeable purposes. One can, of course, speculate as to circumstances in which they might want another access, for example, a subdivision of the blue field. However, once it is accepted that reasonableness is the guide, I am doubtful of the utility of considering in the abstract what might be reasonable in hypothetical events. In any event, I am satisfied that the judge was correct on this point for the reasons he gave.
The judge held, first, that on the true construction of the transfer, the right of way extended only to the edges of the track, as shown by the brown colouring. He considered that the plan was clear and it was not stated to be “for the purposes of identification only”; the extent of the right of way was defined by the limitation of the brown markings to the track alone. However, he held secondly that the express right of way along the track included a right of access to the blue field, as a necessary implication. Apart from the obvious point that it cannot have been intended to give an access to nowhere, he took into account the obligation imposed on the Estate to contribute to the maintenance of the track for its use by agricultural vehicles, thereby implying some purpose to that use. He thought that use of agricultural vehicles -
“…implies that there will be an entrance to the blue field at some point along the track, that the point is likely to be at the top of the track; an entrance at that point would make the most obvious agricultural sense for both the blue field and the remainder of the agricultural land of the claimants beyond it. It is closest to the point at which the old access, which was lost, had been. Furthermore, were it at any other point, any vehicle would have to travel unnecessarily over sown and/or growing crops.”
With regard to size, he rejected the defendants’ argument that, given the width of the track, a width of no more than 12 to 14 feet would be reasonable:
“The claimants point out that agricultural vehicles can have a long and wide wheelbase and in the ordinary course of events can have heavy and long equipment and trailers attached; that it cannot be assumed that they can turn into a field at right angles particularly if the right of way is in truth limited to 10 feet in width and there is not any space in which to manoeuvre; that a gate of 24 feet in width is standard and commonly found in the countryside and is, so far as one can tell, broadly comparable to the width of the old gateway observable in the aerial photographs.
In my judgment for the reasons advanced by the claimants, it cannot be said that the gate installed is of an unreasonable width.”
He held that the transfer should be rectified to give effect to this finding.
However, he rejected the case for more extensive rectification to show the right of way extending over the verges, based on the hatching shown in the travelling draft. The claim for rectification was based on either common mistake, or unilateral mistake on the part of Mr Greenham, known to the Shackletons. The judge rejected the first, on grounds which are not subject to appeal. He was satisfied that there was no common intention to that effect; he had no doubt that Mr Shackleton did not have it in his mind to grant either a right of way over the verges or unrestricted access to the blue field.
As to the issue of unilateral mistake, the judge accepted, both on the contemporary correspondence and from Mr Shackleton’s own evidence, that he was aware that the Estate had made a mistake, but he held that this was limited to whether or not there was an access to the field:
“I am sure that he did notice the omission in the draft Transfer prior to completion and that he believed that the vendors had made a mistake, in that they had not made provision for access to the blue land at the top of the track. He thought that he was legally entitled to take advantage of their mistake. I considered during the course of his evidence whether he had also believed that the vendors were intending to include the hatched land and were mistaken when the transfer did not include it, but I did not think that he had believed this. On this basis, it is clear that a claim for rectification to include the land hatched brown cannot succeed.”
On this finding, he would have allowed rectification to allow for an access at Point A, had it not been conceded that such access was implied.
Mr Mann challenged the judge’s conclusions, both as to the construction of the grant, and as to unilateral mistake. On the former, he argued that there was nothing in the grant to limit the access to any particular point, and that the only limitation should be that of reasonableness (for which proposition he relied on Pettey v Parsons [1914] 2 Ch 653, 669, per Pickford LJ). In my view, however, the judge was entirely correct. In the absence of any specific provision in the transfer, an access to the field was to be implied as a matter of necessary implication, since otherwise the grant would have been pointless. There was no necessity to imply more than one access. As to its position, since the right had been granted over the whole of the track, the natural assumption would be that the access into the field would be at its end, that is at point A. That view was reinforced by the other factors to which the judge referred. The size was determined by the agricultural use which was in contemplation. The passage in Pettey v Parsons does not help the argument. Pickford LJ explained “reasonable access” as “such access as will give reasonable opportunity for the exercise of the right of way, or… as will not be a derogation from the grant of the right of way.” The access presently provided meets both tests.
Equally, I think the judge was right to reject the case for more extensive rectification, based on unilateral mistake. There was no dispute that rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken (see the authorities discussed in Commission for New Towns v Cooper (GB) Ltd [1995] Ch 259, 278-80, per Stuart Smith LJ). The key is whether it would be unconscionable for the party who had knowledge of the other’s mistake to rely on it. On the judge’s findings, Mr Shackleton was aware of the Estate’s mistake in failing to provide an access, and it would have been unconscionable for him to take advantage of that mistake; but the mistake went no further than that.
Mr Mann argues that, once it is found that Mr Shackleton was aware of a mistake in relation to the colouring of the plan, he must take the full consequences of the mistake, and therefore accept the position as it would have been in law if the final plan had been coloured as intended. However, I see no basis in principle for the last step. In judging the “conscionability” of Mr Shackleton’s actions, what matters is what he believed, not how a lawyer would have interpreted the result.
In any event, it is far from clear that the hatching in the earlier draft was intended by the lawyers to have the effect for which Mr Mann argues; or, if it was, that it represented the wish of either party. Mr Shackleton’s position was quite clear. As the judge found:
“I have no doubt at all that Mr Shackleton did not have it in his mind to grant either a right of way over the verges or unrestricted access to the blue field.”
What he was willing to grant had been made clear in a letter from his agent (Mr Holland) dated 10th June 1991, in which he refused to consider any agricultural access through the farmyard, but proposed instead that, following the current harvest, provision would “have to be made for a new access to be built on the vendor’s retained land at the eastern side of the farm yard.” The judge accepted Mr Holland’s evidence that this meant that the vendor could construct an access at the top end of the track in the region of point A.
The evidence of Mr Greenham’s state of mind was less clear, as the judge observed:
“In his witness statement Mr Greenham says that so far as he was concerned the track included the verges that were on either side of it and wanted his rights preserved so that he could get into the blue field at any point along the track with farm machinery ‘as we always had’. However, in cross examination he said that he believed that there was something in the transfer that gave him a right of access at what he called ‘the bottom’ of the track, by which I understood him to mean in the vicinity of ‘Point A’. And the fact is, as he accepted, that prior to the surrender of the tenancy of the Warren farm acres in 1990, he did not have any agricultural activities for which any access by agricultural vehicles was required into the blue field at all. In the result, I am not satisfied that he gave the subtleties of this or any aspect of the conveyancing any thought at all - that was what he paid his advisers to attend to.”
Thus, even in Mr Greenham’s mind, it is far from clear that he expected more than a single access. There is certainly no evidence that a wish for more than one access was ever conveyed to Mr Shackleton.
In these circumstances, it was not unconscionable, in my view, for Mr Shackleton to hold to the position, which he had clearly and openly taken in the negotiations.
Shooting rights and development
Background to the pleadings
In order to set this part of the case in context, it is necessary to turn back for a moment to the history of the dispute. The proceedings were begun in May 2000. By then the Shackletons had applied for planning consent (on 3rd April 2000). On 27th September 2000, the planning authority resolved to grant permission, subject to a section 106 agreement, which was not concluded until May 2001 (the permission, as already noted was issued on 14th June 2001). On 21st December 2001, the Estate’s solicitors (Morgan Cole), writing in connection with preparations for trial, raised the question of conflict between the development and their clients’ shooting rights, expressing the view (said to be supported by Counsel) that:
“… your clients and their successors in title are prevented from developing Warren Farm and its surrounds, as any such development will, necessarily, interfere with our clients’ sporting rights and derogate from the grant of the profit reserved to our clients’ predecessors in title on the sale to your clients of the property.”
They put the defendants on notice that they would be undertaking such development “at their own risk”, and that the Estate reserved the right “to seek injunctive relief to prevent such activity.” In a further letter of 22 January 2001, in rejecting a proposal by the defendants for mediation, Morgan Cole reaffirmed their position on this issue:
“… it is manifest that the gap between our respective clients is really too wide for a mediation on the question of the nature and the extent of the sporting rights to be fruitful. It is just not a matter which is amenable to mediation.”
They acknowledged, however, that it was an issue of “grave importance” in financial terms to both parties, and for this reason they proposed that the matter should be transferred to the Chancery Division of the High Court. They added that the issue relating to the right of way might be “more amenable to mediation”, but it was the question of the nature and extent of the sporting rights that “needs to be resolved as a priority”.
The proposal to transfer to the High Court was agreed, and there followed further discussion on procedural points. This culminated in a discussion of the costs of the amendments raising the sporting rights issue, on which the Shackletons’ solicitors said:
“Both sides have expressed the very sensible view that it would be convenient and a good use of Court time for the issue of whether your clients shooting rights preclude our client’s proposed development of the Barns in accordance with the Planning Agreement (which may now be the central dispute between the parties) to be determined with the other issues in this action. It is therefore our view that the costs of the amendments in dealing with this new issue which has arisen since the drafting of the original statements of case should be costs in the case.”
This point was “noted” by Morgan Cole, who agreed that the costs should be “in the case”.
In the amended pleadings, the form of declaration claimed by the Shackletons (cited above) echoed Morgan Cole’s initial letter, by seeking a determination that “no element of the proposed development… will necessarily cause…” a breach of the sporting rights (emphasis added). The Estate’s amended reply (para 16B) said that the declaration should be refused, both because it was reasonably foreseeable that the development, if carried out, would involve a substantial interference with the shooting rights, and also because, as a matter principle, the grant of a declaration would not be proper exercise of the court’s discretion.
The judge’s decision on sporting rights
The judge approached the matter on the agreed basis, taken from the leading case of Peech v Best [1931] KB 2, 10 per Scrutton LJ:
“It appears to me that fundamentally changing the character of the land over which sporting rights are granted, … if it has the necessary effect of substantially injuring the rights of others is a derogation from grant, and is a substantial interference with the profit a prendre granted.”
He considered first whether the proposed development would constitute a “substantial interference” with the rights granted, since if this issue was decided in favour of the defendants, the question whether the change was “fundamental” would not arise. He treated this as one of “fact and degree”. He noted, however, that the only rights granted by the Shackletons were those over Warren Farm itself, as distinct from the shooting rights enjoyed by the Estate as a whole (some 1500 acres), and accordingly, what had to be considered was any derogation from the rights over Warren Farm itself. He accepted, however, that the effect of a substantial interference of sporting rights within the Farm boundary might “only become evident and measurable on the adjacent drives on the other side of the Farm boundary.”
In considering this issue he was assisted by detailed expert evidence on both sides, and an “Agreed Game Shooting Guide”. He was concerned with the five partridge drives, of which two were relevant to Warren Farm (“Shack’s Farm Drive” and the “Lowbury Drive”). He explained the significance of Warren Farm:
“Warren Farm lies on a plateau overlooking a valley which runs through the estate. There is a cover crop of maize some 40 yards to the north and north east; and a further area of cover across the valley to the north west. When Shack’s Farm Drive is being beaten, the guns are positioned on pegs in the valley at a distance of about 100 yards from Warren Farm and partridge are flushed out of the cover crop closest to Warren Farm across the valley; tiring quickly of flying those that survive the guns seek out and land in maize crops on the ‘Lowbury Drive’, from where they are driven back again once the guns have been repositioned up the northern side of the valley.
Warren Farm sits in the middle of ‘Shack’s Farm Drive’ and, as such, is regarded as a crucial area within it. The farmyard is not exactly an ideal habitat for partridges, but they will go into it to explore, pecking, eating weed seeds and eating any left over hen’s food. Many witnesses have spoken of partridges on the manure heaps and in the overgrown rough cover within the farmyard, being attracted by such foodstuffs as they may be able to scavenge there. On the days when Shack’s Barn Drive is shot, a team of beaters advancing in formation to blank-in the birds would converge on the farmyard from the edges of the green field and the edges of the blue field. A few birds would take to the air and continue to fly over the guns in the valley beyond; most would land in the cover crop to the north east of the farmyard; some would stay in the farmyard itself and have to be driven from there into the cover crop. The farmyard is presently so cluttered that it would be almost impossible to beat in a line or to drive birds in any one direction across it. It is a job for skilled beaters.”
The concerns of the Estate related both to physical changes, in that enclosure of the Farm would impede the ability of the beaters to drive the partridges; and also to a “social” issue, as explained by their expert:
“Any housing development brings with it all the accoutrements of domestic living and, even if the new occupants were people who understand country life, and all that happens as a part of it, it is unlikely that they would tolerate beaters entering their property, climbing over hedges, walls and fences twice a week and scaring their pets and children (and all of this at 8: 30 in the morning). It would put a great onus on the beaters themselves with regard to real or alleged damage in the course of carrying out their duties during this drive. Frankly, with regard to neighbourly relations it would be very difficult indeed.”
The judge concluded that there were only two activities which were relevant to the issue before him:-
“The first is the passage of the beaters on foot twice a week during the shooting season between September and the end of February each year for the purpose of driving birds over the guns. It is clear from the evidence and sketches which I have seen that the beaters converge from the edges of the green and blue fields, blanking in the partridge in their quest to drive them into the cover crop just beyond the farm yard, some of whom will pass into the farm yard instead of going direct to the cover crop. Some of the beaters will then have gone into the farmyard to drive the partridge further on. This form of access has not been entirely straightforward in the past because of the ramshackle nature of the buildings and the volume of the machinery in the way. The second activity is the recovery of shot birds which may have fallen back onto the Warren farm yard and lands.”
With regard to the “social” objection, he thought it as likely as not that purchasers of the houses would be sympathetic to country pursuits; and that there would in any event be a remedy if they wilfully obstructed beaters, or carried out activities designed to interfere with the exercise of the Estate of its sporting rights on its own land. The proposed declaration would not give future occupiers “carte blanche” to act in disregard of the rights of the estate. He also took into account the fact that existing use of the farmhouse was residential, and that the Estate had no control over future occupants.
He concluded that two matters had potential for giving rise to a “substantial interference”. The first was the construction work which would be “extremely noisy and disruptive” in the early stages, when there would be movements of heavy machinery required to clear the land. The second was the potential for obstruction by fences, the form of which was still subject to approval by the planning authority. He considered that, subject to appropriate undertakings, the two points should not preclude the grant of a declaration:-
“The point is this: as regards the disturbance from major works of construction, it seems to me that if this could be kept outside the shooting season and within the period March to July the potential for interference would be avoided. As regards the potential obstruction from walls and fences, it seems to me that if these were so constructed that they do not provide a barrier to beaters performing their duties of driving partridge from wherever they may land at all material points on Warren Farm, the potential for obstruction would also be removed. In this respect, I have heard evidence from Mr Thomas, a potential developer, who has told me that, subject to planning approval, he would envisage installing post and rail fencing about 1 metre in height. Boundary fencing of this nature would not obstruct beaters or interfere with the shooting rights. There are many other sorts of fencing which also would not be an obstruction.”
He accordingly indicated that he was minded to grant a declaration, but invited counsel to seek to agree a draft of suitable undertakings and a declaration, along the lines set out in the judgment, stating that, if they could not agree the terms, he would make a ruling himself.
At a further hearing, he was provided with draft orders prepared by both sides. He also had further submissions as to the appropriateness of granting a “negative declaration”. As to that he said:
“I am satisfied that, notwithstanding it is a negative declaration, it is appropriate to make one in this case, having regard particularly to the fact that the dispute which exists between the parties… is such as in effect to disentitle the claimants from what I believe to be (their) entitlement to carry out a development on the land in question.”
There appears to have been substantial agreement as to the general form of the order, including undertakings by the defendants, supported by restrictive covenants, and detailed declarations. Having heard argument on the detailed issues, and having resolved two matters in writing, he made the order, the relevant parts of which are set out in an appendix to this judgment.
The main points to note about the order are the following:
The Shackletons entered into covenants for themselves and their successors in title:
limiting to a height of 1 metre any fences or enclosures on the land edged blue on the S 106 agreement plan (that is the areas planned for clearance, outside the immediate curtilages of the farmhouse and the two barns);
within those curtilages, imposing a similar limit, save that enclosures above 1 metre in height are permitted if the estate is provided with “a means of access to the areas enclosed thereby including in the case of any means of access capable of being locked a key to the relevant lock”;
restricting substantial building activity to the period between 7th February and 1st July of any year;
limiting the use of Warren Farm to residential or agricultural use, and requiring nothing to be done or permitted “whereby the exercise of the sporting rights will be substantially interfered with”.
The Shackletons undertook to use best endeavours to procure the agreement of the mortgagee bank to such covenants, and to apply for registration of the covenants in the relevant title at the Land Registry;
Subject to compliance with these undertakings and covenants, and the terms imposed by the planning authority, it was declared that development in accordance with the planning consent “will not cause substantial interference” with the exercise of the sporting rights; and that the defendants or their successors are entitled to carry out the development in accordance with the permission.
In relation to the right of way, a declaration was made as to its extent in accordance with the judgment, and an undertaking given by the Shackletons not to interfere with the use of the right of way so declared.
The Appeal
The notice of appeal includes a wide-ranging challenge to the judge’s conclusions, both in principle and on the facts. Before us, however, Mr Mann QC has put the main emphasis on the issue of principle. In summary, he says that this is a “negative” declaration, in that it seeks to establish the boundaries of what is permissible and thereby pre-empt any application for an injunction in the future. He says that such an order should only be made in an exceptional case, where the facts are clear, and the present was not such a case.
I agree that this is the real issue raised by the appeal. I see no basis to question the judge’s factual conclusions, based on a careful appraisal of the evidence, as to the likely impact of the proposed development on the shooting activity; nor his view that, if limited in the way proposed, it need not in itself involve so substantial an interference as to amount to a derogation from the grant, within the principles laid down by Peech v Best. Like the judge, I regard it as significant that the development would not result in the introduction of a completely new residential use, in view of the existing residential use of the Farm House. Furthermore, although that use will be intensified if the development proceeds, the area of buildings and other impediments will at the same time be substantially reduced.
The more difficult issue is whether, having reached that conclusion, he was entitled to give effect to it by a “negative declaration” in the form adopted. Mr Mann says that it was inappropriate in this case. He relies on the inherent uncertainty about the form of the development, the nature and conduct of future occupiers, and the effect of both on sporting activity. These were issues which could not properly be determined to the requisite standard on the information available to the judge; the declaration would simply foster disputes with future owners, who would argue that it in effect gave unrestricted permission for residential use.
Mr Mann accepts that there is jurisdiction to grant such a declaration, but he says that it should be exercised only in exceptional circumstances. He is able to point to several statements to that effect in the older authorities. For example, in Guarantee Trust Co of New York –v-Hannay and Co [1915] 2KB 536, 564 Pickford LJ said:
“I think that a declaration that a person is not liable in an existing or possible action is one that will hardly ever be made, but that in practically every case the person asking it will be left to set up his defence in the action when it is brought.”
However, as Mr Mann accepts, recent cases have adopted a more flexible approach. Thus, in Camilla Cotton Oil Co –v-Granadex SA [1975] 1LLR 470, [1976] 2LLR 10, Lord Denning MR in the Court of Appeal and Lord Wilberforce in the House of Lords indicated, with varying degrees of emphasis, that the jurisdiction was not as confined as suggested by Pickford LJ, although Lord Wilberforce accepted that his words “warn us that we must apply some careful scrutiny” ([1976] 2LLR 10, 14).
In Messier-Dowty Ltd –v- SABENA SA [2001] WLR 2040, 2050, Lord Woolf MR summarised the modern approach as follows:
“41. The approach is pragmatic. It is not a matter of jurisdiction, it is matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the court should not be reluctant to grant such declarations. They can and do assist in achieving justice….
42. While negative declarations can perform a positive role they are an unusual remedy insofar as they reverse the more usual roles of the parties. The natural defendant becomes a claimant and vice-versa. This can result in procedural complications and possible injustice to an unwilling ‘defendant’. This in itself justifies caution in extending the circumstances where negative declarations are granted, but, subject to the exercise of appropriate circumspection, there should be no reluctance to their being granted when it is useful to do so.”
Both parties relied on the decision of Lightman J in Greenwich Healthcare NHS Trust –v- London and Quadrant Housing Trust [1998] 1WLR 1749, the subject-matter of which is closer to the present. The plaintiff had acquired land in order to build a hospital. The planning permission required the re-alignment of a link road, over which the defendants had rights of way, and the land was also subject to a restrictive covenant in favour of the defendants. None of the defendants had objected to the development, and the evidence was that the re-alignment of the right of way would improve the safety and convenience of access to the public highway. However, the plaintiffs were concerned to protect themselves against possible objections in the future to re-alignment of the right of way or change of use of the land. They accordingly applied for declarations that the defendants would not be entitled to an injunction to restrain the proposed re-alignment, and that their rights if any would be limited to an award of damages for interference with the right of way or compensation for breach of the restrictive covenant. The application was unopposed save for one of the defendants, who sought only to preserve a possible right to compensation, and with whom a formula for that purpose was agreed.
The judge held that there was no right in law to re-align the right of way, but that in the circumstances it was appropriate to grant the declaration. He took into account the fact that there was no reasonable objection to the re-alignment, that the defendants had had notice and made no objection, and that the re-alignment was necessary to achieve “an object of substantial public and local importance and value” in the provision of new hospital (p 1755-6). He concluded:
“In short the law is sufficiently adaptable and responsive to the needs of litigants in proper cases… to grant declarations which are necessary to dispel uncertainties and remove obstacles to progress and to legitimate activities.” (1756H)
As that case shows, and as Mr Mann accepts, the issues are ones of practicality and utility, rather than principle. However, he distinguishes the Greenwich case, because there the issue was clear-cut and the facts were not in dispute. As he submits:
“A declaration as to the future should only be granted where there can be no serious dispute about the facts (or future facts) and their impact on the legal right in question. This is particularly so where the disputed facts are of the ‘fact and degree’ variety.”
I agree that the declaration in this case goes further than that in the Greenwich case, in that the nature of the dispute is less clear-cut. As Mr Mann says, the balance between the use of Warren Farm and the exercise of the shooting rights, is one of “fact and degree”. It is also necessary to consider whether the maintenance of that balance is susceptible to a detailed regime, such as is contained in the judge’s order. However, subject to two points of detail, to which I will refer below, it does not appear to me that the workability of the order was seriously in dispute, either before the judge or before us. The objections to the declarations were ones of general principle, and were not based on the detailed working out of the order. Indeed, the order largely follows the draft prepared by counsel for the Estate.
Mr Mann also makes, what I think is a separate point, that a declaration is inappropriate, because the issue was “hypothetical”, in that there was no-one before the court currently able and willing to carry out the development. I find this point less easy to understand. It is true of course that no developer is ready to proceed at present. This, as the Estate acknowledged in the pre-trial correspondence, is because no developer is likely to purchase the site, so long as there is uncertainty about the right to do so in face of the Estate’s objection.
However, this does not make the issue “hypothetical”. In Zamir and Woolf, “the Declaratory Judgment”(3rd Ed.), the reluctance of the court to adjudicate on “hypothetical issues” is noted, with the following comment:
“…It should be observed that the fact that the claimant has an immediate practical interest in the declaration is not sufficient to render real an issue otherwise hypothetical. Nor is it sufficient that, additionally, the defendant has a real interest in opposing it. A substantial interest of both parties in disputing the issue is, indeed, important; but this is not in itself sufficient. If the issue in dispute is not based on concrete facts the issue can still be treated as hypothetical. The absence of a dispute based on concrete facts is critical. This is the missing element which makes the case hypothetical.” (para 4.055, emphasis added)
In this case, as the pre-trial correspondence recognised, both parties had a substantial practical interest in resolving a genuine dispute, and there was no suggestion at that time that the facts were not sufficiently “concrete”. In my view, this was correct. The permission defined the form of the development sufficiently to enable the respective experts to express clear views on its likely effect on shooting activity, and for the judge to form a view on them. Obviously it was not possible to predict precisely how future occupants would use their houses and gardens, but there was no reason for the court to assume anything unusual about the residential use.
Two points of detail were made by Mr Mann. The first related to the potential for conflict between the declaration as to permitted residential use, and covenant (d) which prohibits uses which would “substantially interfere with sporting rights”. He suggests that occupants might seek to argue that the “permission” for residential development means that “normal residential use” cannot be an infringement. I do not see this as a practical problem. It is indeed implicit in the judge’s decision that ordinary residential use, subject to the restrictions in the order, would not involve a derogation from the sporting rights. Otherwise he would have refused the declaration. On the other hand, covenant (d) makes clear that this does not give “carte blanche” for any residential activity, regardless of its impact on the estate. The limits of what is acceptable cannot be precisely defined; they will depend upon reasonableness, as indeed they do now.
The other point of detail relates to covenant (b), which allows enclosures higher than one metre within the immediate curtilage, if a gate and key are provided. Mr Mann submits that the judge was wrong to think that a high wall would cease to be an infringement if there were gates, since the walls would still interfere with free access by beaters across the area. It is necessary to keep in mind that this part of the covenant relates simply to what will be the gardens of the new converted barns. I would agree with Mr Mann, that if unimpeded access through the gardens were essential to the drive, then simply providing a gate with a key would not remove the impediment. However, the mere fact that the beaters would not have unimpeded access over this limited area does not mean that there would be substantial interference with the shooting rights over the farm as a whole, particularly when one bears in mind the increased access allowed by the demolition of buildings outside the immediate curtilage. Indeed I find it a little surprising that the judge thought it necessary or desirable to include this provision. As the Shackletons’ expert observed, it would be unusual for beaters to need or wish to “blank in” a small garden attached to a house, partly because game is unlikely to be attracted to such areas, in proximity to humans. However, this was a matter for the judge’s discretion having heard the evidence.
Conclusion
Once it is accepted that the judge had jurisdiction to make the order, the question becomes one of discretion. As the recent authority shows this is to be judged by issues of practicality and utility. Against the background that the parties had identified the resolution of this dispute as one suitable for determination by the court, I do not think the exercise of the judge’s discretion in this case can be faulted. Clearly great care is needed in adopting such a course, in a case where the facts are in dispute. However, having reached the view that the two uses were in principle compatible, the judge was right in my view to seek a solution which would enable the residential development to proceed, rather than being frustrated by legal uncertainty. Of course, he should only have done so, if he were satisfied that the regime established by his declaration was practical and would not be a recipe for substantial disputes in the future. However, with the assistance of counsel, he clearly satisfied himself on those points.
In my view the order was one which he was entitled to make and I would dismiss this appeal.
Lord Justice Sedley
I agree with both the reasoning and the conclusions of Carnwath LJ. If I add a few words, it is out of deference to the very good arguments addressed to us.
The appeal concerns a conflict between residential development of rural land and the valuable sporting rights reserved over it (though to an uninstructed listener the procedure described by Mr Mann QC of driving low-flying birds down a hollow of land over a battery of waiting guns might have sounded more like execution by firing squad). In the court below, it was apparent that while the development could take place in accordance with the outline planning permission which had been granted, without substantially interfering with the appellants’ sporting rights, there was no way of being sure that it would not do so. It is this doubt which was resolved by the fourth undertaking given as a condition of the second and third declarations: an undertaking, in effect, to do and to permit nothing which substantially interferes with the appellants’ sporting rights.
But Mr Mann contends that the combined effect of the undertaking and the declaration is in reality to settle nothing; indeed, it is to invite strife. He asks us to consider what will happen if the new residents have cats which, in disregard of the season, wreak their own carnage on the bird population. It would constitute from the appellants’ point of view a clear breach of the fourth undertaking; but the residents might well contend that nothing was a more normal incident of residence than cats, and that they were therefore protected by the declaration.
Mr Furber QC for the respondent points out, first, that it was at the appellants’ instigation that clarification by declaration was first sought by way of counterclaim, and that the judge had before him at trial two competing drafts from which, after further submissions, the appellants derived the final form of the undertakings which they were prepared to accept and the judge derived the consequent declaration. Secondly, and arising out of this history, Mr Furber submits that it is a mistake to start by looking for possible conflicts between the undertakings and the declaration. They are intended to be mutually supportive and should be so read. Read in this light, he submits, the second declaration records that to implement the outline planning permission will not infringe the appellants’ sporting rights, and the fourth undertaking contains a binding assurance that it will not do so.
For the reasons spelt out by Carnwath LJ, I accept that Mr Furber’s approach is the right one and that, taking it, one finds neither vacuity nor contradiction in the judge’s order. It might have been more accurate to declare that the permitted development would not necessarily infringe the sporting rights, leaving it to the undertaking to ensure that it would not do so. But that is the net effect of the undertakings and declarations, and together they serve the proper purpose of preventing further strife.
Even so, in the ordinary case – that is one which lacks the peculiar history of this one – a judge should not readily set out to anticipate trouble. The risk is that such an enterprise, rather than head off trouble, will provoke or aggravate it. To make declarations predicated upon undertakings which are proleptic in form and proactive in effect, but are made in necessary ignorance of the situations in which they will be invoked, is more often than not to court trouble. Such cases stand in contrast to those where some identifiable step can be forbidden because it either has violated or inevitably will violate one party’s rights, or can be declared lawful because it can have no such effect. In the peculiar circumstances of the present case I accept that the judge’s order, sensibly read as a whole, falls into the second of these classes.
Accordingly I too would dismiss this appeal.
Lord Justice Potter
I also agree.
Order: Appeal Dismissed; order as agreed between the parties.
(Order not part of approved judgment)
Appendix
Extracts from Order of High Court (12th April 2002)
… UPON THE DEFENDANTS UNDERTAKING BY THEIR COUNSEL as follows:
to use their best endeavours to procure that Barclays Bank Plc, as registered proprietor of the first legal charge over the Defendants’ freehold land registered at H M Land Registry under Title Number BK297019 (“Warren Farm”), do forthwith:
give its written consent to the execution of the deed of covenant referred to in the undertaking numbered 3 below, and
deliver up to the Chief Land Registrar the Charge Certificate in respect of the said Title to enable the issue by the Land Registry of a new Charge Certificate reflecting the rectification of the Charges Register for the said Title in accordance with the Orders and directions hereinafter contained
not themselves or either of them or by their employees or any other person interfere with or obstruct or permit or suffer to be interfered with or obstructed in any way whatsoever the exercise of the right of way reserved to the Claimants’ predecessors in title by paragraph 2 of the Second Schedule of the Transfer of Warren Farm dated 28 June 1991 made between Thomas Brian Greenham and Sarah Greenham of the one part and the Defendants of the other part the full extent of which is declared in the declaration numbered 1 below
if a scheme of development is pursued either in accordance with the planning consent granted by the West Berkshire District Council on 14 June 2001 or a similar scheme forthwith and in any event prior to any disposal of any legal or beneficial interest in the whole or any part of Warren Farm to enter into express covenants by deed and apply for registration of the same in the Charges Register and Schedule of Restrictive Covenants for the Title to Warren Farm being Title Number BK297019 at H M Land Registry as follows:
“Gerald Henry Shackleton and Alan Michael Robert Shackleton (“the Covenantors”) and each of them for themselves and for their assigns and successors in title as owners and occupiers of the whole or any part of the land known as Warren Farm freehold title to which is registered at H M Land Registry under Title Number BK297019 (“Warren Farm”) hereby covenant with Well Barn Shoot Limited and Well Barn Farming Limited and each of them and their assigns and successor in title as owners and occupiers of and for the benefit of the whole and each and every part of the land known as the Well Barn Estate registered at H M Land Registry under Title Numbers ON 213406 and ON 213408 (“the Estate”):
(a) at no timeto construct plant or erect or to permit to be constructed planted or erected in the areas edged in blue on the plan attached to the Agreement dated 4May 2001 made in pursuance of Section 106 of the Town and Country Planning Act 1990 and affecting land at Warren Farm (“the Section 106 Agreement”) any wall, fence, hedge, or other form of barrier or enclosure other than (i) a fence of no more than one metre in height or (ii) a fence of post and rail construction with no more than three rails or (iii) a wall fence or hedge of such dimensions and materials as shall be approved by the owners of the Estate at the date of construction planting or erection
(b) at no time to construct plant or erect or permit to be constructed planted or erected in the areas edged green and red on the plan attached to the Section 106 Agreement any external wall fence hedge or other form of barrier or enclosure of a height above the ground in excess of one metre without providing to Well Barn Shoot Limited and Well Barn Farming Limited or their assigns and successors in title a means of access to the areas enclosed thereby including in the case of any means of access capable of being locked a key to the relevant lock
(c) not to carry out or permit to carried out any substantial works of demolition excavation clearance landscaping or construction by the use of heavy machinery (being of a weight in excess of 7.5 tonnes) on Warren Farm or any part thereof in pursuance of the Proposed Development save during the period between 7th February and 1st July of any year and in any event without first giving at least one week’s written notice to the owner or owners for the time being of the Estate having the benefit of the sporting rights reserved under paragraph 3 of the Second Schedule to the Transfer of Warren Farm then registered under Title Number BK146642 dated 28 June 1991
(d) at no time will anything be done or permitted or suffered to be done or any use made of or other circumstance permitted or suffered to arise on Warren Farm or any part of it whereby the exercise of the sporting rights will be substantially interfered with and the use of Warren Farm shall be restricted to use for residential or agricultural purposes only
IT IS DECLARED that:
upon the true construction of the Transfer dated 28 June 1991 made between Thomas Brian Greenham and Sarah Greenham of the one part and the Defendants of the other part the Claimants and their successors in title and all persons duly authorised by them, as successors in title to Thomas Brian Greenham and Sarah Greenham as registered proprietors of the freehold interest in the land registered at H M Land Registry under Title Numbers ON 213406 and ON 213408, are entitled to a right of way at all times and for all purposes including gaining access to and egress from the said land with or without vehicles over and along the roadway shown coloured brown and the land shown cross-hatched brown (Footnote: 1) for identification only on the plan annexed hereto PROVIDED THAT where they shall exercise this right of way with agricultural vehicles for agricultural purposes then they shall contribute a fair proportion according to user of the cost of repairing and maintaining the said roadway and the said land hatched brown. Where, however, their use of the roadway is in connection with the exercise of their shooting rights or the care of the game or the like then no such contribution shall be payable
the development of the land registered at H M Land Registry under Title Number BK 297019 (“Warren Farm”) in accordance with the planning consent granted by the West Berkshire District Council on 14 June 2001 (“the Outline Planning Consent”) will not cause substantial interference with the exercise by the Claimants or their successors in title to the land registered at H M Land Registry under Title Numbers ON 213406 and ON 213408 of the sporting rights reserved over Warren Farm to Thomas Brian Greenham and Sarah Greenham and their successors in title by the third paragraph of the Second Schedule to the Transfer dated 28 June 1991 made between the said Mr and Mrs Greenham of the one part and the Defendants of the other part PROVIDED THAT the said physical development is carried out in accordance with (i) the terms and conditions imposed by the Outline Planning Consent (ii) the agreements made between the Defendants and the West Berkshire District Council pursuant to section 106 of the Town and Country Planning Act 1990 dated 4 May 2001 (iii) the undertakings given by the Defendants herein and (iv) the covenants referred to in the Defendants’ undertaking numbered 3 above
the Defendants or their successors in title to Warren Farm are entitled to carry out the development described in the Outline Planning Consent subject to full compliance with (i) the terms and conditions imposed by the Outline Planning Consent (ii) the agreements made between the Defendants and the West Berkshire District Council pursuant to section 106 of the Town and Country Planning Act 1990 dated 4 May 2001 (iii) the undertakings given by the Defendants herein and (iv) the covenants referred to in the Defendants’ undertaking numbered 3 above