The Wildernesse Estate
Wildernesse Estate Covenants
Original Restrictions & Further Aspects
So began the introduction to the original 1925 sales brochure of the Estate's developers, Percy Harvey Estates Limited. These “moderate restrictions”, imposed by way of Covenants, have been, and still are, crucial to the preservation of the unique character of the Wildernesse Estate.
The most important of these was to stipulate that there should essentially be only one house per plot, though some original owners bought several plots, thus allowing two or more houses to be built on the combined plot.
A building line not less than 75 feet from the edge of the road next to each plot was imposed, and the use of any property tor any business purposes and the erection of temporary buildings etc. was also prohibited.
From the outset these Covenants were clearly designed to be mutually enforceable between all house owners on the Estate, and that still remains the legal position.
Other stipulations provided for the planting of hedges on boundaries, for purchasers to contribute a proportion of the cost of maintaining the road etc. and for building plans to be submitted and approved.
Over the years there have been challenges to the important “one house per plot” covenant, often misinterpreted as a one house per acre provision. In 1984 and in 1995 applications were made to the Lands Tribunal to modify this building covenant to allow a second house on the plot. These applications were rejected on the basis that the Covenants were still enforceable to prevent higher densities and ensure continuation of an outstandingly successful scheme of Covenants.
Apart from the Westwood Case in 1995 perhaps the most important challenge was fought in the High Court in 1988. The case of Allen v. Veranne Builders Limited established that the Covenants as a whole were imposed and created to operate as a "building scheme”. Notwithstanding the fact that there had been isolated breaches of` the Covenants, the then Vice Chancellor of the High Court, Mr. Justice Browne-Wilkinson, the senior Law Lord at the time, held that there had been no acquiescence. This allowed anyone living on the Estate who “benefited” from the restrictions to enforce any of` the Covenants against any other resident.
In summary then, in respect of the restrictive Covenants the position is simple. Every property on the Estate is bound by the same Covenants, which are all written in substantially identical terms. There are a few examples of breaches across the Estate, but most of these occurred many years ago before the general awareness of residents had become a significant consideration.
The question then arises as to their continuing validity. Are they out of date? Have they been invalidated by the breaches? Are they no longer relevant to the times? The answer to these questions is clear. Three legal challenges between 1984 and 1995 all upheld the Covenants, and they remain enforceable.
The Wildemesse Residents' Association has taken the opinion of Counsel on a number of issues to ensure the continued protection of these important Covenants. In particular, the following points need to be borne in mind;
(i) replacement homes raise issues under the Estate Covenants about which appropriate advice should be taken;
(ii) if any development involves a detached garage with self-contained accommodation, this could be a breach of the “one house per plot” covenant, even if a planning agreement is entered into with the Sevenoaks District Council requiring the separate accommodation to be used as part of the main residence;
(iii) the “one house per plot” restriction bears no relation to the size of the plot;
(iv) any breach of the 75 feet building line covenant or other restrictive Covenants would be enforceable at the instigation of any resident.
The Wildemesse Residents' Association monitors all planning applications received by the Council and, where appropriate, discusses them with residents affected.
The Association can recommend a local planning adviser to act as a sounding board before plans are submitted to the District Council, which may help to avoid rejection by the Council and disagreements between neighbours.
Restrictive Covenants ( 1925 )
Below is a full list of the restrictive Covenants for the Wildemesse Estate. They are to be found, with slight variations, in the deeds of each property on the Estate.
l. No caravan or house on wheels other than poultry houses or other structures to be used in connection with the industries of poultry farming horticulture fruit growing or agriculture shall be placed on the property nor shall any temporary building or erection be placed or built thereon without the Vendors` consent in writing first obtained.
2. The property to be used for residential purposes only; only one house may be erected upon each plot and no act, deed or thing shall be done or permitted to be done thereon or in any building erected thereon which may be or grow to be an annoyance, nuisance, damage or disturbance to the Vendors or the owner or tenant of any other portion of the Wildemesse Estate.
3, No roads shall be formed or laid out upon any portion of the Estate except with the Special Licence and consent of the Vendors. No building or erection shall be set up less than seventy-live feet from the edge of a road next to any plot.
4s Before the erection of any house or building upon any plot plans with specifications of the materials to be used of the walls and roof of such house or building shall be submitted to and approved by the Vendors or their Surveyor and on submission a fee of twenty-one shillings shall be paid.
5, The Purchaser shall, within one month after being called upon, plant and for ever after maintain along the side or sides of the property where the same are marked with a T on the Plan drawn hereon a live hedge to form a permanent fence or such other fence as may be approved by the Vendor or his Surveyor in writing.
6. A proportion of the cost of repairing and maintaining any roadway and footpaths and any water mains and of constructing repairing and maintaining any gas mains electric light cables sewers drains gutters or other work in connection therewith as the Vendors may think fit or the Local Authority may require shall be borne and contributed by the Purchaser concerned such proportion and the fact of the Purchasers' concern to be certified in writing by the Vendors' Surveyor whose certificate shall be final and binding on all parties. Such proportion as aforesaid may be calculated or estimated and certified by the said Surveyor at any time either prior to the commencement or during the progress of or after the completion of any work in connection with any such matter as in this stipulation are mentioned or referred to and the amounts due from the Purchaser shall be payable on demand whether or not any such works shall have been begun in process or completed.
7. Notwithstanding the provisions of the preceding clause any damage done by the Purchaser or by his servants or agents to any of the Estate roadways shall forthwith be made good by the Purchaser at his own expense to the satisfaction of the Vendors Surveyor. A certificate in writing by such Surveyor that any of the said roadways has or have been damaged by the Purchaser or by his servants or agents and of the extent of the damage so done shall be conclusive evidence of such facts. In the event of the Purchaser making default in making good any such damage within one calendar month after notice of the making of such certificate the Vendor shall be at liberty to make good the said damage and execute all necessary repairs and to recover the costs of and incidental thereto from the Purchaser so in default. A notice hereunder shall be sufficient served if sent by registered post to the last known address of the Purchaser.
8. Until the property is fenced in by the Purchaser the Vendor shall have the rights to cultivate and depasture the same and to remove anything therefrom.
9, Every portion (if any) of the property which shall lie within a distance of 25 feet from the centre of a road in front thereof is reserved and dedicated for the roadway and footpaths and shall be left open and unobstructed and the Vendor shall have the right at any time to enter thereon without further license from the Purchaser for the purpose of constructing repairing and maintaining such roadway and footpaths and any sewers drains gutters or other works in connection therewith as the Vendor may think tit or the local authority may require.
l().The materials used in construction of houses on the Wildernesse Estate shall consist (a) as to the walls of bricks stone or rough cast or any approved type (b) as to the roofs of tiles made from natural clay slates or stone.
[Provisions specifying minimum values for new houses ranging from £500 to £l,450]
ll. During three years from the date of the Conveyance to the Purchaser no growing timber on the property shall be cut or felled except so far as necessary for the erection of a house or the layout of a garden thereon without the Vendor's permission in writing first obtained. The Purchaser shall make good (or at the Vendor's opinion reimburse to the Vendor the cost of making good) all damage arising at any time out of the cutting felling or removal of timber from the property such damage or cost to be assessed ` in each case by the Vendor's Surveyor whose certificate thereof shall be conclusive.
12. The Vendor reserves the exclusive right to release waive or alter all or any of the foregoing stipulations and restrictions in respect of any hereditaments or property whatsoever and also the rights to deal with any part or parts of his Wildernesse Estate independently of and free from the said stipulations and restrictions or any of them and the Vendor shall not be bound to impose or enforce the same in any manner or on any occasion.
Restrictive Covenants ( Further Aspects )
When the Wildernesse Estate was originally plotted the developer (Percy Portway Harvey) issued a sales brochure indicating that the Estate was being developed from (approximately) 1924, although the final property was not constructed until the early 1970s. However, the brochure indicated that it was intended to impose identical covenants upon each plot owner, which would, then, be binding upon each other house owner with similar covenants.
Over the years similar covenants have been imposed on all the properties, although there are one or two minor differences which do not affect the advice in this note.
Nearly all the plots on the Estate have covenants which are stated to bind the “Purchaser for himself/herself his/her heirs and assigns ….. to bind the said hereditaments ….. the owner or owners for the time being of the Wildernesse Estate”.
The two principal covenants confirm that:
Only one house may be erected on each plot; and
No building or erection shall be set up less than 75 feet from the edge of the road next to any plot.
There are one or two properties which have the benefit of a two-house per plot and one or two houses have a building line which is less than 75 feet. However, the overwhelming majority have covenants as stated above.
Over the years there have been a number of challenges to the key building covenant as follows:
The case of Allen v Veranne Builders 1986 A.4269 relating to Tulip Tree Cottage, Blackhall Lane, confirmed that the original developer intended there to be a “building scheme” with the result that each and every homeowner on the Wildernesse Estate was able to enforce the covenants from all homeowners living on the Estate;
There have been two applications to the former Lands Tribunal, namely Brambles’ application in 1985 and Reed Snaith and Doldings’ application (reference no. LP/43/1994) and (1996) P&C.R. in 1995 relating to Westwood, Blackhall Lane.
Both cases sought a modification of the covenants under the Law of Property Act 1925, Section 84, and the most recent case reaffirmed the position of the building scheme and that on the basis of the important and new “thin edge of the wedge” principle, the covenants were still appropriate and should not be modified.
When the covenants were first drawn up peoples’ views as to the size of their houses and any adjoining buildings somewhat differed from current expectations. Accordingly, from time to time houses on the Estate have been demolished and redeveloped with much larger properties and many residents seek to enlarge their homes and/or construct separate garages. Thus, concerns have been raised as to whether and, if so when, a breach might occur in the erection of such a garage or the conversion of an existing building. Accordingly, there are probably four circumstances, which are set out below, where a breach might be committed and, if so, how these could be mitigated:
Nature of Construction
Does such construction amount to a breach of covenant?
New separate house erected on plot
If the new structure is integral with or substantially attached to the main house the breach will have been eliminated unless one part is let or sold separately.
New separate garage erected with self-contained accommodation over
May not be a breach unless let or sold separately.
Conversion of existing separate garage, either wholly or partly, with self-contained accommodation
Would be a breach on whole conversion and otherwise may not be a breach unless let or sold separately.
Principal house subdivided into two separate semi-detached homes
Will not be a breach unless one half of the semi is let or sold separately.
DEED OF COVENANT
The WRA has, in addition to relying upon the general covenants, adopted a policy of contacting residents who may be contemplating a development of the nature referred to above, with a view to ascertaining their proposals so far as any new construction or conversion is concerned, and requiring residents to enter into a Deed of Covenant, much along the lines of the comments made above and making it entirely clear that any self-contained garage with accommodation over should neither be let nor sold separately from the main house. A number of queries have been raised concerning such Deeds and the most appropriate way to proceed to avoid any potential breaches, both at the time the new building is erected or thereafter. The Deed of Covenant effectively sets out the legal position relating to any new or renovated building. The following issues have been raised by way of queries:
We have received advice from Counsel to the effect that a potential breach would be mitigated if the new structure was physically integrated or attached to the main house. This will require more than either a boundary wall / courtyard or even a covered passage. The link has to be of a permanent nature in brick or other material to match the two buildings.
Sevenoaks District Council occasionally incorporate a condition in their planning consents stipulating that any new building should be treated as “ancillary to the principal building and used in conjunction with the latter and shall not be used as a self-contained unit of accommodation”. Whilst such a condition is useful the District Council are less willing to enforce breaches of such conditions and, thus, the Deed of Covenant will incorporate any planning consent and such condition.
The Deed of Covenant would be entered into by the owner of the property concerned, together with (ideally) trustees of the relevant private road (in the case of Wildernesse Avenue and Seal Drive, and Parkfield) or in the case of Woodland Rise and the public roads (Blackhall Lane, Seal Hollow Road and Park Lane) by three or four residents in such roads. All the latter parties are entering into the document on the basis that they hold the benefit of the covenants as “trustees” for all persons on the Wildernesse Estate entitled to benefit under the so-called building scheme. The individual Deed of Covenant will be registered against the property owners’ Land Registry title and, thus, any purchaser would be made aware of the obligations thereunder. It is suggested that the individual road trustees could enter into the Deed of Covenant, principally upon the basis that they, not only, own the relevant Estate road but, also, have homes in the road which unequivocally provides them with the benefit of the general covenants.
There is no liability upon those assigning the Deed and, as mentioned above, the only obligation upon them (however slight) is to ensure (with others) that the house owner undertaking work keeps to his/her/their obligations. If any enforcement is required following a breach of the covenant, it would then be a matter for a number of residents to form an action group with a view to challenging the owner and (perhaps) pursuing the matter through the Courts, as was done in the 1995 Westwood Case.