Country Estates Construction Ltd v Oxfordshire County Council, Court of Appeal - Chancery Division, March 27, 2009, [2009] EWHC 642 (Ch)

Resolution Date:March 27, 2009
Issuing Organization:Chancery Division
Actores:Country Estates Construction Ltd v Oxfordshire County Council

Neutral Citation Number: [2009] EWHC 642 (Ch)Case No: HC06C02791IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 27/03/2009Before :HH JUDGE JOHN TOULMIN CMG, QC(Sitting as a Judge of the High Court)- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Gary Cowen (instructed by Clifton Ingram LLP) for the ClaimantWayne Clark (instructed by Oxfordshire County Council Legal Services) for the DefendantHearing dates: 16 February 2009- - - - - - - - - - - - - - - - - - - - -JudgmentHH JUDGE TOULMIN CMG, QC : 1. This Action concerns a claim by Country Estates Construction Ltd (Country Estates) against Oxfordshire County Council (OCC) for an injunction to prevent OCC from carrying out its proposal to construct a cycle path and pedestrian access from the Claimant's industrial estate known as Cromwell Park to a proposed new development to the south of Country Estates' land in breach (so the Claimant says) of a covenant to maintain the landscaping scheme imposed by the local Planning Authority in its entirety. 2. By Clause 4 of the Transfer dated 22 August 1988 under which OCC sold the land, OCC covenanted with Country Estates and its successors in title that OCC ``will provide and maintain landscaping on the Council's Retained Land in accordance with the Planning Permission Numbered O321/87 issued by West Oxfordshire County (sic) Council on 22 May 1987''.3. The Planning Permission provided that, apart from the means of access into the Claimant's development, a strip of land with a minimum width of 10m was to be reserved for landscaping along all the boundaries of the Application area (the landscaping strip). 4. OCC's original plan to create an access road through the landscaping strip has been abandoned but the proposal to create a cycle path and pedestrian link through the landscaping strip has been maintained. 5. On 3 July 2008 Master Bragge ordered the following to be tried as a preliminary issue namely:``Whether on the true construction of the terms of the Transfer dated 22 August 1988 (``The Transfer'') made between the Claimant and the Defendant, the creation of a cycle path and pedestrian link between the Defendant's retained land (``the Retained Land'') at Rockhill Farm, London Road, Chipping Norton, to the highway situated within the Claimant's land known as Cromwell Park registered at HM Land Registry title Nº. ON119815 or the removal or destruction of any part of the landscaping strip on the Defendant's Retained Land constitutes a breach of the terms of Clause 4 of the Transfer.''6. I am assured by OCC that if I find against them on the preliminary issue, they will give an undertaking not to proceed with the plan to create the cycle path and pedestrian link. Clearly, if I find in OCC's favour, the cycle path and pedestrian link will be able to proceed. Either way the outcome of the preliminary issue will determine the outcome of the Action. 7. I heard oral evidence from Mr Smith, Managing Director of Country Estates from 1987; Mr Kirkby, Contracts Manager of Country Estates from 1986 and subsequently Director of Construction; Mr Weitzel, chartered engineer of Warner Nugent from 1986-1992, Country Estates' consulting engineer; and Mr Day, an independent architect, on behalf of the Claimant. Mrs Sheppard gave evidence on behalf of the Defendant. She was employed by OCC from February 1987 to November 1992. In November 1992 she took up her employment with Atkins Ltd and has been employed by them since then. In the circumstances I have found their evidence to be of relatively little assistance since the answer to the preliminary issue is derived primarily from the documents. 8. The Law This is a dispute between the parties which requires me to construe a clause in a document. The correct approach to construction of documents was set out by Lord Hoffmann in ICS Ltd v West Bromwich BS [1998] 1WLR 896 at 912.9. The principles were be summarised by Lord Hoffmann as follows:``(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably been available to the parties in the situation in which they were at the time of the contract.(2) The background most famously referred to by Lord Wilberforce as the "matrix of fact" but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of the exception are in some respects unclear...(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax...(5) The `rule' that words should be given their `natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language the law does not require judges to attribute to the parties an intention which they plainly could not have had....''10. I have been referred to various legal authorities to support the competing contentions of the parties but these are of limited assistance since I must construe Clause 4 of the Transfer, and the Planning Permission to which it refers according to the words used and in their relevant contexts. The Facts11. On 27 February 1987 OCC made a planning application to the Planning Authority (West Oxfordshire District Council (WODC)) for outline planning permission before selling off the parcel of land adjoining the A361 Banbury Road near Chipping Norton in Oxfordshire. The Application was granted on 22 May 1987. (It is referred to subsequently both as 0321/87 and 321/87).12. The area to the south of the parcel was occupied by a tenant farmer. The area to the west of the parcel was the site of a large council depot. A little further to the west, occupying a triangle of land from the junction of the Banbury Road Crossing and the London Road to the south of the tenant's farm, was Cotshill Hospital. 13. The stated purpose of the Application was to provide for a new access to the A361, a footway to Cotshill Hospital on the SE verge and adequate landscaping and screening of the new development. Condition 3 was concerned with ensuring pedestrian access to the site and the existing footpath adjoining Cotshill Hospital. This relates to a different access to the one currently proposed and this condition is not relevant to this case. 14. Condition 5 is particularly relevant. It says ``apart from the means of access into the site a strip of land with a minimum width of 10m be reserved solely for landscaping along all boundaries of the application area.''15. The purpose of the condition is stated to be:``5. To ensure that the development is complimented by adequate landscaping''16. The Defendants contend that if its proposed cycle path and pedestrian link proceed, the development would still be complimented by adequate landscaping. 17. The concern to protect the environment is reinforced by Conditions 6, 7, 8 and 9. Condition 6 and 7 relate to trees and hedgerows. Conditions 8 and 9 relate to fencing. 18. Condition 8 provides:``8. A new post and rail fence be constructed to a height of 1.5m in accordance with a design and specification first submitted to and approved by the Local Planning Authority and along the whole of the lines coloured blue in the attached plan Ref W.321/87A and that such fence shall be erected immediately upon commencement of the development of...

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