[2024] UKUT 112 (LC)

In the early 1960s the Savill family owned Forest House; on 13 September 1966 the Savill family trustees sold the house and land in two conveyances, each using the same plan (shown below). The first conveyance was of the land shaded green to Deanley Properties Limited. We refer to this as “the 1966 conveyance”. It imposed covenants for the benefit of “the Pink Land and every part thereof”, of which the following are the subject of this application:

“(b)

That no building will be erected upon the Green Land save with the consent in writing of the owner or owners for the time being of the Pink Land and that neither the external plan nor the elevation of any building so erected shall at any time be altered save with the like consent.

(c)

That nothing shall be done upon the Green Land which may be or become a nuisance annoyance or danger to the owners or occupiers for the time being of the Pink Land or which may tend to depreciate the value of the Pink Land or any part thereof as residential property”

Later that day, whether immediately or after a congenial pause, the Savill trustees sold the Pink Land to Charles and Elizabeth Morley, who then lived in Forest House for many years. We know that that was the later conveyance because the Pink Land was expressed to be conveyed with the benefit of the rights reserved to it in the conveyance of the Green Land.

On the Green Land were built numbers 1 to 12 High Elms in the years that followed. On 12 December 1967 Deanley Properties Limited, which had by then changed its name to High Elms Properties Limited, conveyed number 12 to John Wooton; the plan depicts a simple rectangular house with a detached garage, connected by a wall. This is the only one of the houses on the Green Land that physically adjoins the Pink Land; its north and east boundaries are separated from it by a tall and quite conspicuous brick wall, part of a larger structure that formerly contained an orchard. According to Mr Mackenzie the wall is Grade II listed along with Forest House; Mr Mackenzie says he owns it, and Mr Medley says he owns it.

Leaving that aside for now, in the 1967 conveyance the purchaser entered into restrictive covenants with the company “For the benefit and protection of the remainder of the Company’s High Elms Estate …or any part or parts thereof the owner of the adjoining property known as Forest House Vicarage Lane Chigwell aforesaid or any part or parts thereof”. It is curious that as well as being for the benefit of the vendor and its estate, which of course was the Green Land, the covenants were said to be for the benefit also of Forest House, which the company did not own; whether that provision was effective we do not have to decide, but the explanation for it is said to be that the company was owned and controlled by the Morley family.

The following covenants in the 1967 conveyance are the subject of the present application:

“3(b) not to erect any wall hedge fence or structure (whether in the form of a boundary wall hedge fence or structure or not) around or within any part of the land hereby transferred lying between the line of the said dwelling and any road or footpath on to which the said land abuts PROVIDED ALWAYS that this covenant shall not relate to any wall or fence erected by the Company and marked “T” on the said plan

3(c) not to erect any building or other structure whether of a permanent or temporary nature on the land hereby transferred without the prior written approval of the Company to a sufficiently detailed drawing thereof

3(d) not to use the said dwelling for any purpose other than as a private dwelling or to carry on any trade business or manufacture whatsoever on the land hereby transferred.”

At the hearing Mrs Fuchs-Khakhar confirmed that her own property was subject to the same covenants and it is likely that that is true of all the houses on the Green Land.

In the 1970s more houses were built on the Pink Land; numbers 13 to 15 in the north-west along with numbers 1 and 2 Forest House Fields, and numbers 16 to 18 in the south east. Number 18 is known as ‘High Elms’ and is accessed from Vicarage Lane.

Here is a plan of the High Elms area today:

On the plan can be seen the Green Land, entered from Manor Road on the small estate road flanked by the two bungalows, with the detached house at number 2 and the nine town houses in a row. Their front gardens are open and unfenced. A number of them have been extended to the rear to create more ground floor living space but they have pleasant gardens and a splendid view over London. There is a pair of ornate wrought iron gates across the road where the Green Land ends, and the road is adopted up to a point a few metres south of the gates.

The application site is broadly rectangular in shape and is adjacent to the listed brick wall which is some 3 metres in height, and forms its northern and eastern boundaries. The site contains three buildings, an ‘L’ shaped bungalow constructed in the 1960s, a brick built, flat roofed double garage and a structure described by the applicant as an ‘arbour’. The bungalow is conventionally constructed with rendered block elevations under a shallow pitched roof covered in grey, concrete interlocking tiles. It has a wide, flat roofed portico supported on four pairs of Doric columns. The garage is next to the north facing part of the listed wall and orientated east/west. The ‘arbour’ is a three-sided, single storey structure of rendered brick or block with a canopied fabric roof. It forms the western boundary of the garden. The roof has a metal frame and, when in repair (which it is not), could be folded back not unlike a folding roof on a car. The positioning of these buildings is such that a grassed margin about 2.5 metres deep has been left all around the site. The western elevation of the bungalow is concealed behind a mature hedge. The site itself has a distinct slope, so that the ground level at the northern boundary is about 1.5 metres higher than at its southern equivalent.

The second bungalow (number 1 High Elms, not the subject of this application) is broadly similar in construction, style and scale. It occupies a larger ‘L’ shaped site next to the entrance to High Elms. Its entrance faces east, and consequently the rear garden has a westerly aspect. It too has a wide portico feature but unlike number 12 the columns are Corinthian in style. It also has a double garage and a sloping site such that the garage is built into the slope with its floor level being well below the ground level immediately to the north. The garden contains a single storey annex next to the Manor Road frontage.

The row of town houses are conventionally built with pale brick elevations and clay tiled mansard roofs at second floor level. The upper-most surface of the roof is flat and the mansards are equipped with a pairs of sash framed dormer windows in each elevation. The entire row is oriented north/south with the rear elevations and gardens facing to the west. The front elevations look towards the two bungalows. The slope of the site means that from number 3 onwards, each consecutive house is about 0.5 metres higher than its neighbour.

The last house on the Green Land is number 2 which is a two storey, detached house. It is brick built under a hipped, clay tiled roof and occupies a site between the town houses and Manor Road. It appears to have been built after the initial development of High Elms.

Forest House is an imposing three-storey house dating from the turn of the 19^th century. A two-storey extension was added to the eastern elevation in the same century. The entrance faces north-west and the gardens slope away to the south east. Its design, thought to be by the popular Regency architect John Papworth, is typical of the period with stock brick elevations, double hung sash windows and a shallow pitched roof concealed behind a parapet with a stucco string course. The grounds contain a range of brick out buildings including an octagonal dairy. The rear garden is laid to lawn and the house enjoys long reaching views over London and as far as Kent. The orientation is such that number 12 is to an extent concealed behind the listed wall and some mature trees. The townhouses are only visible from the second floor windows. Forest House has a Grade II listing which was applied in 1954. It is of a different scale to every other dwelling built on the Green or Pink Land, most of which could be described as modest in comparison.