Smith v Garrard

J U D G M E N T

1. LORD JUSTICE JUDGE: I will ask Lord Justice Chadwick to give the first judgment.

2. LORD JUSTICE CHADWICK: This is an appeal from an order made on 7th July 2004 by His Honour Judge Norris QC sitting in the Birmingham County Court in proceedings brought by the appellant, Mr Martin Smith, against his neighbour, Mrs Jeanne Garrard.

3. Mr Smith is the owner of a dwelling house known as The Hall, 56 High Street East, Uppingham. The Hall is a substantial Grade II* listed building, dating from the 17th and 18th centuries. It has a fine Queen Anne front, facing south over an enclosed garden. Immediately to the north there is a gravel forecourt with parking and turning space.

4. The Hall stands some way back from, and to the south of, High Street East in the town of Uppingham. It is approached from the street along a metalled driveway, flanked on either sides by verges on which, until 1999, there were trees. At the northern end of the driveway, where it meets High Street East, there are a fine pair of stone ashlar pillars. At the southern end the driveway opens out, in the form of a trumpet mouth, on to the gravelled forecourt. The distance along the driveway from High Street East to The Hall is about 90 metres.

5. Mr Smith purchased The Hall from Uppingham School -- or, more accurately, from the Official Custodian of Charities acting by the trustees of Uppingham School -- in August 1998. Until then The Hall had been used by the school as a boarding house for its pupils.

6. Until 14th February 1997 The Hall, the driveway and verges, and certain adjoining land and buildings to the north and west of The Hall, were all comprised in the same title, Title LT288071, registered at Her Majesty's Land Registry. By a transfer of 14th February 1997 the land and buildings, other than The Hall, its garden and forecourt, were transferred to Park Portfolio Ltd for development. On the plan annexed to that transfer, the land transferred is shown edged red, the land retained is shown edged blue, and the metalled driveway crossing the red land is shown coloured brown. Those parcels of land are defined in the transfer as, respectively, "the Property", "the Transferor's Retained Land" and "the Roadway". As might be expected, there is reserved to the transferor for the benefit of the retained land a right of way with or without vehicles at all times and for all purposes over and along the roadway. That right is reserved by clause 2 of the transfer; and is found in paragraph 1 of the Third Schedule to the transfer. It is a right exercisable in common with all others having the like right.

7. Clause 3 of the 1997 transfer contains covenants by the transferee, Park Portfolio Ltd, with the transferor and with the trustees of Uppingham School for the benefit of the retained land and of the school's other estate and so as to bind the property into whosesoever hands the same may come, to observe and perform the restrictions and stipulations set out in the Fourth Schedule to the transfer. Those restrictions and stipulations include the following:

"5. At all times to keep in good order and properly maintained the curtilage of the Property and to maintain and if necessary replace all trees shrubs and landscaping planted in accordance with any landscaping scheme affecting the Property.

6. Not to do or permit or suffer to be done on or about the Property anything which may be or become a damage disturbance nuisance or annoyance to the Trustees or the owners lessees or occupiers for the time being of any other parts of the Transferor's Retained Land or the Estate.

...

10. Not at any time to park vehicles upon or place any articles upon or in any way obstruct the free passage of any part of the Roadway over which other persons have rights of way.

11. Not to place upon nor cause to be erected upon the Property or on any part or parts thereof so as to be visible from the Transferor's Retained Land any aerial or other device used or intended to be used for the reception of Satellite Television."

In that context the Estate means the entirety of the estate of Uppingham School vested in the transferor (that is the official custodian) or in the trustees of Uppingham School.

8. The development of the property transferred in 1997, as proposed at the time, is indicated on a plan (designated as drawing AL1/1). That shows the erection or conversion of five dwellings, all having access over the common roadway to High Street East. In particular, the development included the renovation and conversion of a former stable block, which lay immediately to the north of the forecourt fronting The Hall, and to the west of the driveway. The eastern half of that former stable block -- that is to say, that part of the former stable block which was on the corner where the driveway opened out into the gravel forecourt of The Hall -- became known as No 4 Hall Gardens. That property, which was still under construction or renovation at the time, was transferred by Park Portfolio Ltd to the defendant, Mrs Jeanne Garrard, by a transfer dated 3rd June 1999. She has lived in the property since that date with her husband.

9. The 1999 transfer to Mrs Garrard included not only the eastern half of the former stable block, which was or was to become the dwelling house known as No 4 Hall Gardens, but also the whole of the driveway, including the metal road and the verges, leading from the forecourt of The Hall to High Street East. As I have said, that driveway provided access to The Hall, to No 4 Hall Gardens and to the other four houses forming part of the development on the land transferred to Park Portfolio Ltd in 1997.

10. It is not in dispute that the property transferred to Mrs Garrard in 1999 was subject to the easement reserved by the 1997 transfer; nor that she and her successors were bound by restrictions imposed by, or in, the Fourth Schedule to the 1997 transfer. The property transferred to her in 1999 was registered under Title No LT313087. The restrictions are noted in the Charges Register on the title.

11. There has been some history of dispute between Mr Smith and Mr and Mrs Garrard. In particular disputes arose out of their differing views as to the proper management of verges on either side of the metalled roadway. Put shortly, the Garrards thought that the verges would be improved by clearing a number of trees and planting shrubs. In effect, by turning those verges into herbaceous borders. Mr Smith took the view that he preferred the appearance of unkept woodland, which formed (as he put it) a green tunnel through which to approach The Hall.

12. Those disputes led to proceedings being commenced in the High Court in or about September 2001. The relief claimed in those proceedings included, at paragraphs 2 and 3 of the prayer for relief, an injunction restraining the defendant, Mrs Garrard, together with her husband and their respective visitors, from breaching the restriction contained in paragraph 5 of the schedule by using the verges of the roadway as a shrub garden and as a bench or patio area, constituting an annoyance in breach of the restriction contained in paragraph 6 of the schedule; and an injunction restraining the defendant, together with her husband and their respective visitors, from parking in breach of the restriction contained in paragraph 10 or as constituting an annoyance in breach of the restriction contained in paragraph 6. The relief included, at paragraph 5 of the prayer for relief, a claim for damages in the sum of £25,000 for loss of privity and amenity said to result in diminution of value to the claimant's property, The Hall.

13. The scope of the dispute - which had included other matters, in particular a declaration that the register should be rectified by showing Mr Smith as the owner of the driveway and its verges - was reduced following service of a notice of discontinuance on 23rd July 2002. So it was that the issues to which I have referred - set out in paragraphs 2, 3 and 5 of the prayer for relief - came before His Honour Judge Norris QC for trial in April 2004. The proceedings had been transferred from the High Court to Leicester County Court; and from Leicester County Court back to Birmingham, so as to be heard in Birmingham County Court by a specialist Circuit Judge with Chancery experience.

14. Judge Norris handed down his judgment in writing on 21st June 2004. By his order, dated 7th July 2004, he awarded the claimant damages of £100 in respect of the breach of the covenant in paragraph 6 of the Fourth Schedule. In that context it is to be remembered that the claim for damages for breach of the covenant against causing annoyance - contained in paragraph 6 - encompassed, not only the use of the verges as a shrub garden and bench and patio area, as set out in paragraph 2 of the prayer for relief but also parking; that being said to be an annoyance contrary to the restriction in paragraph 6 - see paragraph 3 of the prayer for relief.

15. The judge dismissed the remainder of the claim. He directed that Mr Smith should pay 90 per cent of Mrs Garrard's costs. The judge gave permission to appeal in relation to the issues considered at paragraphs 18 to 21 and 32 to 35 of his judgment.

16. In paragraphs 18 to 21 of his judgment the judge had considered whether the obligation imposed by paragraph 5 in the Fourth Schedule to the 1997 transfer was enforceable by Mr Smith, as successor in title to the original transferor, against Mrs Garrard, as successor in title to the original transferee. He directed himself that, there being no direct covenant between Mrs Garrard and Mr Smith, the obligation was enforceable only if and to the extent that imposed a restriction. He concluded that paragraph 5 contained a positive and not a restrictive covenant; so that Mr Smith could not succeed in his claim based on the obligation in that paragraph. There is no appeal from that finding. This appeal is limited - as appears from section 5 in the appellant's notice - to so much of the judge's order as refused an injunction in relation to the breaches of restrictive covenant imposed by paragraph 10 of the Fourth Schedule to the 1997 transfer; that is to say, the covenant not to park vehicles upon or in any way obstruct the roadway, and the consequential order as to costs, whereby the appellant was ordered to pay 90% of the costs of the defendant.

17. There is not, as I understand the position and as has been confirmed by Mr Smith's counsel, a freestanding appeal from the order as to costs. The appellant would not have permission to appeal on costs alone. The appeal against costs depends upon success on the substantive issue: whether the judge was wrong to refuse to grant an injunction restraining parking. That was the issue which the judge addressed at paragraphs 32 to 35 of his judgment; and in respect of which he gave permission to appeal.

18. The judge described the circumstances in which this issue arose at paragraph 32 of his judgment:

"The final issue to be determined relates to parking. Mrs Garrard parks her car alongside No 4 Hall Gardens. When visitors come, they too park there. They park roughly in the position shown as the parking space on the approved development plan AL1/1. Other visitors to Hall Gardens park in the same area (rather than driving on into the courtyard). All of this area forms part of the Roadway. Cars so parked are visible from the first floor landing of The Hall and from the ground floor hallway and cloakroom. They are also visible from the kitchen wing, but this has only one window which lights the boiler room."

19. The plan AL1/1 is the plan to which I have already referred, prepared in March 1997 at or about the same time as the February 1997 transfer. It shows, adjacent to No 4 Hall Gardens, a hatched area denoting visitors' parking space. It is plain from that plan, and indeed from the transfer plan, that it is possible to park cars in that parking space and alongside the eastern flank wall of No 4 without obstructing the access along the metalled road from the street to the forecourt of The Hall. Further, cars parked in that position would not obstruct access to the other dwelling houses erected on the development land. There is access to the other houses over a roadway which joins the metalled roadway about three-quarters of the way down its length.

20. A further word of explanation is needed as to the judge's comments in paragraph 32. The Hall, as I have said, faces south; that is to say, its main rooms and its principal façade are on the south side. The rooms on the north side - from which the roadway and cars parked on it would be visible - faces onto the gravelled forecourt. They comprise the hallway, cloakroom and kitchen wing. The judge went on say this, at paragraph 33 of his judgment:

"The covenant in paragraph 10 of the Fourth Schedule is set out above. The issue is as to its true construction; and the arguments were succinct. Mr Dutton [who then appeared for Mr Smith] submits that it imposes three obligations:

(a) Not to park vehicles upon the Roadway;

(b) Not to place articles upon the Roadway; [and]

(c) Not in any way to obstruct the free passage of any part of the Roadway.

Parking on the Roadway is therefore absolutely forbidden even if it does not (as is conceded here) obstruct or interfere with the use of the Roadway or inconvenience the Claimant. [Mr Dutton] submits that the object of the covenant is to enlarge the rights that the Claimant would otherwise have by virtue of owning the benefit of an easement."

21. The alternative construction, advanced before the judge on behalf of Mrs Garrard, was that the covenant only restricted parking which was such as to obstruct the free passage over the roadway; so that the covenant must be read as if the words "obstruct the free passage of any part of the Roadway" qualified the restriction on parking vehicles upon the roadway and the restriction on placing articles upon the roadway, as well as the restriction against any other obstruction of the free passage of the roadway.

22. The judge indicated, in paragraph 32, that initially he had favoured what he described as the literal reading advanced on behalf of Mr Smith - that is to say, a construction of the restriction against parking as an absolute restriction, not linked to any question of obstruction of rights of way. But, as the judge said, he had come round to the other view, which he described as a purposive reading, which did qualify the restriction on parking by linking it to obstruction of the free passage over the roadway.

23. The judge explained the reasoning which had led him to that conclusion at paragraph 34 of his judgment:

"Paragraph 10 imposes an obligation not at any time to park vehicles upon any part of the roadway 'over which other persons have rights of way'. Since rights of way are granted over the whole Roadway, Mr Dutton's reading of the covenant makes the words in italics redundant. But it is trite law that the grant of a right of way does not confer a right to pass over each and every square inch of the servient land. Provided that sufficient is left for the convenient and unimpeded use of the way, parts of the surface can be obstructed. Given that the context of the transaction was a sale for development purposes, and the provision of parking spaces in residential developments is a familiar requirement, the italicised words [over which other persons have rights of way] might well have been addressed to such an issue - although more widely expressed. That is [counsel for Mrs Garrard's] position. In my judgment it is correct because it recognises the true nature of a right of way and avoids the absurdity of the owner of The Hall being able to assert that it is an actionable breach of covenant for an occupier of Hall Gardens to park in a parking place approved by the planning authority (on the basis of plans submitted with the approval of his predecessor in title) when his proprietary rights are not impeded."

24. The judge emphasised that he was referring there to a hypothetical situation. He was not suggesting that Mr Smith's predecessors did, in fact, approve the parking space that was allotted by the planning authority in the present case. But, in the context of what had gone before in his judgment, the judge plainly had in mind plan AL1/1, which showed an allotted parking place on the roadway in a position which, as Mr Harry who has appeared for Mr Smith in this court accepts, would be prohibited by the covenant in the transfer if that covenant has the absolute effect for which he contends. Mr Harry has to say, in effect, that whoever prepared plan AL1/1 in March 1997 did not appreciate the effect of the bargain that had been made a few weeks earlier and embodied in the schedule to the transfer.

25. The issue between the parties turns on a short point of construction. What meaning is to be given to the words used in paragraph 10 of the Fourth Schedule, when read in the context of the transfer as a whole and in the light of the circumstances which the parties to that transfer must be taken to have had in mind - that is to say, the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time when the transfer was executed. The principles are set out in See the first and second numbered paragraphs in the speech of Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896, at 912H to 913A.

26. As a matter of syntactical analysis, the restriction in paragraph 10 of the Fourth Schedule to the 1997 transfer comprises three elements: (1) not at any time to park vehicles upon any part of the roadway over which other persons have rights of way; (2) not at any time to place articles upon any part of the roadway over which other persons have rights of way; and (3) not at any time to obstruct the free passage of any part of the roadway over which other persons have rights of way. The phrase "over which other persons have rights of way" - if it serves any purpose in paragraph 10 - qualifies "any part of the Roadway". That is to say, the phrase defines and identifies that part or those parts of the Roadway to which each of the three restrictions is to apply. In the present context that phrase defines and identifies that part of the Roadway upon which vehicles are not to be parked. It identifies that part of the Roadway upon which vehicles are not to be parked, in the same way as it identifies that part of the Roadway free passage over which is not to be obstructed. There is no distinction between the first and third elements of the restriction in this respect.

27. But, of course, it has to be kept in mind, first, that the Roadway is a defined term in the transfer. It means the road and footpath serving the property from and to High Street East, Uppingham, showed coloured brown on the plan. And, second, that the transfer confers rights of way, in common with all others having such right, over and along the Roadway. So that, if paragraph 10 of the Fourth Schedule is read in the context of the transfer alone, the words "over which other persons have rights of way" adds nothing to the words "any part of the Roadway". Under the transfer, rights of way extend over all the Roadway.

28. Nevertheless, before rejecting the words "over which other persons have rights of way" as mere surplusage, it is important to recognise that the persons entitled to enforce the restrictions imposed by the covenants in the Fourth Schedule may not be the same persons (or all the same persons) as are entitled to rely on the easement reserved by the Third Schedule; nor may the rights of those entitled to easements or rights of way granted or reserved otherwise than in the Third Schedule extend over the whole of the Roadway. They may, for historic reasons, extend only over part of the Roadway.

29. The point is illustrated by comparing the terms in which the easement is reserved and those by which the restrictions are imposed. The easement is reserved to the transferor "for the benefit of the transferor's retained property". The persons entitled to the easement from time to time are the owners of the dominant tenement for the benefit of which the easement has been reserved. In practice, they are the persons who are owners of the retained property. On the other hand, the restrictions are imposed by clause 3 for the benefit and protection of each and every part of the transferor's retained land and of the estate. It is (at least) possible that those entitled to the benefit of the restrictions may not always be the same as the persons who are owners of the dominant tenement entitled to the benefit of the easement. Paragraph 10 in the Fourth Schedule may enable obligations to be enforced by persons who are not able to bring actions for trespass or nuisance in relation to violations of the easement.

30. Further it must kept in mind that paragraph 10 is imposed in a transfer to a developer; in the context of proposals to build or convert, on the land transferred, a number of dwelling houses, each of which will need access over the roadway to be granted to them on the conveyance off of the various parts of the development land. So it must have been appreciated that there would be other persons, acquiring properties after 1997, who would be the owners of land which is not the dominant land for the purposes of the 1997 transfer. They, too, will be persons having rights of way over the roadway to which paragraph 10 relates.

31. Mr Harry rightly warns against construing paragraph 10 on the basis that surplusage has to be avoided at all costs. He reminded us of the observations of Hoffmann J in Tea Trade Properties Ltd v CIN Properties Ltd [1991] EGLR 155, 158A, to the effect that surplusage is not a safe guide to construction of documents. It is not unusual to find that a draftsman has inserted into a document more words than are needed in the belief that the point is being made more firmly and less obscurely. But the danger of inserting additional words into a document when they are not needed is that it may be thought that they were placed there for a purpose.

32. In the context of the 1997 transfer, I take the view that the words "over which other persons have rights of way" have been included in paragraph 10 of that Fourth Schedule for a purpose. The words are there to indicate that the parts of the roadway on which vehicles are not to be parked are those parts upon which the parking of vehicles would obstruct the exercise of rights of way. The parking of vehicles, and the placing of articles, upon the roadway are illustrations of ways in which free passage may be obstructed. So read, as the judge held, the purpose of paragraph 10 is to secure the use and enjoyment of rights of way. They are not there to impose an absolute obligation against parking vehicles which do not interfere with the rights of way, but which may be regarded as aesthetically unattractive or an annoyance.

33. It is, I think, significant that the draftsman has already introduced restrictions in paragraph 6 as to the doing or suffering to be done of anything causing annoyance to the owners and occupiers of the transferor's retained land; and has expressly, in paragraph 11, dealt with the erection or placing upon the property visible from the transferor's retained land of any aerial or other device used or intended to be used for the reception of satellite television. Had the draftsman intended, by a restriction on the parking of vehicles, to prevent annoyance or to preserve an aesthetically pleasing outlook, it seems to me that he would have imposed that restriction in conjunction with paragraph 6 or 11; or, at the least, would have done so in absolute terms without the additional (and, in that context, unnecessary) qualification "over which other persons have rights of way".

34. As with many questions of construction, the answer is to be found from the words used in the context in which they were used. It is to be found in the impression which the words make on the mind of an informed reader. To my mind, in this context, the restriction against parking vehicles was not intended to be an absolute restriction, but was to be construed as a restriction against parking vehicles which would interfere with the exercise of rights of way, whether granted in this conveyance or granted in some earlier conveyance or, indeed, granted subsequently.

35. For those reasons, I would dismiss this appeal. The appeal against the costs order falls with the substantive appeal.

36. LORD JUSTICE JUDGE: I agree with and cannot usefully add anything to Lord Justice Chadwick's analysis of the ambit of paragraph 10 of the Fourth Schedule to the transfer dated 14th February 1997.

37. Accordingly, the appeal will be dismissed.

ORDER: Appeal dismissed with costs assessed in the sum of £4,817.50 plus VAT.

(Order not part of approved judgment)

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