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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith & Anor v Royce Properties Ltd  EWCA Civ 949 (13 June 2001)
Cite as:  2 P & CR 5,  EWCA Civ 949,  25 EGCS 156
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE LADDIE)
Wednesday 13 June 2001
B e f o r e :
(The Lord Woolf of Barnes)
LORD JUSTICE TUCKEY
LADY JUSTICE ARDEN
|(1) JOHN MICHAEL SMITH|
|(2) MARC PHILLIPE ANGST|
|RATHBONE TRUST CO (BVI) LTD||Appellants/Claimants|
|ROYCE PROPERTIES LIMITED||Respondent/Defendant|
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 0201 7421 4040
Official Shorthand Writers to the Court)
MR PATRICK CLARKSON QC and MR RICHARD LANGHAM (instructed by Messrs Knowles Benning, Beds SG17 5DG) appeared on behalf of THE RESPONDENT
Crown Copyright ©
Wednesday 13 June 2001
"If within twenty years from the date hereof planning permission shall be granted in respect of the whole or any part of 0062 (25.60 acres) part of the land hereby agreed to be sold and shown hatched black on the said plan, the purchaser shall offer to the vendor the opportunity of repurchasing such part in manner and on the terms following."
Did the option include 0052?
"Someone appears to have taken the original and re-drawn it as the file plan."
"The land hatched black referred to .... so far as it affects the land in this title is tinted pink in the file plan."
"The conveyance, having defined the option land with precision, said that it is 'shown hatched black on the said plan'. The word 'shown' can have a number of meanings from 'define precisely' at one end to 'indicate generally' at the other. There is nothing on the register to suggest that this clause should be construed as meaning any more than that the plan illustrates, but does not qualify, the wording in the text. For this reason as well  is outside the scope of the option."
"Whether a plan controls a verbal description or a verbal description controls a plan is a question of construction of the particular conveyance. There is no presumption either way."
Did the planning permission trigger the option?
"It seems to me that, so far as one knows what is done on allotments, that could quite easily be said to be horticulture, fruit growing, perhaps even seed growing, and one has known people to keep goats, and so on, on allotments. They might fall into various other categories of description set out in that definition section. They might be said to be market gardens or nursery grounds. All these terms seem to me to be apt to cover the use of land as allotments. It is true that there is no mention of allotments in the definition, but I cannot see that it would be wrong to take the view that I have just taken, namely that these descriptions of uses like horticulture, fruit growing and so on cover the use of land for allotments. I would say, therefore, that allotments as such are included within the definition of 'agriculture' ...."
"The words of the option must be construed so as to give effect to the presumed intention of the parties. It appears to me that their intention was to allow the trustees to secure the increased value of the land as a result of that land being the subject of, or potentially the subject of, development. When the option refers to planning permission being granted 'in respect of' the whole or a part of 0062, it does not cover everything within the application site. It only refers to those parts of 0062 in relation to which there is permission for relevant development. For the purpose of such relevant development, the .... planning permission is not given 'in respect of' a piece of land on which development is not being permitted. Here no development is being permitted in respect of any part of  or most of . [Counsel] puts it succinctly in respect of . He says that that plot was part of the planning permission but permission was not given in respect of it. I agree."