Phillips & Ors, Re: Holiday Chalets at Point Curlew, Court of Appeal - Lands Tribunal, September 05, 2011, [2011] UKUT 346 (LC)

Resolution Date:September 05, 2011
Issuing Organization:Lands Tribunal
Actores:Phillips & Ors, Re: Holiday Chalets at Point Curlew





UT Neutral citation number: [2011] UKUT 346 (LC)

UTLC Case Number: LP/18/2009


RESTRICTIVE COVENANT - modification - leasehold interest - holiday chalet park - restriction in leases of chalets - use restricted to 10 months of year - chalet lessees seeking modification to permit 12-month use - lessors objecting - application refused - Law of Property Act 1925 s 84(1)(a), (aa) and (c)







Re: Holiday Chalets at Point Curlew

St Merryn



Before: The President

Sitting at Plymouth District Magistrate Court,

St Andrew Street, Plymouth, Devon PL1 2DP

on 10 and 11 May 2011

Rawdon Crozier instructed by Wolferstons, solicitors of Plymouth, for the applicants

Ewan Paton instructed by Meade King, solicitors of Bristol, for the objectors

The following cases are referred to in this decision:

Re Truman, Hanbury Buxton & Co Ltd [1956] 1 QB 261

The following further cases were referred to in argument

Phillips v Francis [2010] 24 EG 118

Re Bass Ltd (1973) 26 P & CR 95

Stockport MBC v Alwiyah Developments (1986) 56 P & CR 278

Re Bennett and Tamarlin Ltd(1987) 54 P & CR 578

Cadogan v Guinness [1936] Ch 515

Re Abbey Homesteads (Developments) Ltd 53 P & CR 1

Re Martin (1988) 57 P & CR 119

Re SJC Construction Co Ltd (1974) 28 P & CR 200

Re Quartley (1989) 58 P & CR 518

Re Lloyds Bank Ltd (1976) 35 P & CR 128

Ridley v Taylor [1965] 1 WLR 611



  1. This is an application made by a group of lessees of holiday chalets at Atlantic Bays Holiday Park (formerly called Point Curlew Holiday Park and, before that, Wardles Leisure Estate), near St Merryn, Padstow, Cornwall, under section 84(1) of the Law of Property Act 1925 for the modification or discharge of the following restrictive covenant contained in each of their leases:

    ``(o) Not to use the demised premises nor the Estate for any purpose other than that of a holiday chalet and not to occupy or permit the demised premises to be lived in or occupied between the Second Day of January and the Twenty Eighth day or Twenty Ninth day of February in each year PROVIDED HOWEVER that nothing herein contained shall preclude the Lessee from leaving furniture and other effects therein during the period aforesaid''

    The application seeks the deletion of the words after ``holiday chalet'', removing therefore the exclusion of occupation during January and February. The objectors are Martin Francis and Rebekah Katherine Francis, who acquired the freehold of the park on 22 April 2008.

  2. There were 85 applicants, claiming to be the lessees of 93 chalets that were listed in a schedule to the application. The objectors asserted that 20 of these applicants (the lessees of 26 chalets) did not have the requisite interest to apply to the Tribunal under section 84, and, following an order of the Tribunal that their entitlement to apply should be determined as a preliminary issue, these 20 applicants withdrew, leaving 64 applicants in relation to 66 chalets. These are listed in the schedule to this decision. The objectors had asked for proof of title of these remaining applicants, and the Tribunal ordered that each of these applicants should provide the objectors with proof of their title. It appears that this was not done, or was not done to the satisfaction of the objectors, so that at the hearing there was no agreement between the parties as to who should be treated as applicants. At the hearing I directed the applicants, to the extent that they had not already done so, to provide the objectors with proof of title. Following the hearing correspondence between the parties between 16 May 2011 and 16 June 2011 failed to resolve the differences. In the event, because I have decided that the application must fail, it is not necessary for me to determine which of the applicants, if any, are not entitled to apply or to order that they should not be admitted.

  3. On 28 June 2011 the applicants wrote asking me to postpone my decision until after judgment had been given and the transcript of the judgment approved in a county court action between certain of the applicants and the objectors. As it appeared that this request was not opposed by the objectors I agreed to it, but on 4 August 2011 the objectors wrote saying that they had not been informed of the request of the applicants and asking that my decision should not be further postponed.

  4. I inspected the holiday park during the course of the hearing. On the basis of that and the evidence before me, I find the following facts. The park (or estate as it is otherwise referred to) extends to about 25 acres. Mr and Mrs Francis acquired it from the former owner St Merryn Holiday Estate Management Company Limited (which I will refer to as the company), in which each chalet owner had a share. The park includes:

    (a) A chalet park area of about 12 acres. There are now 160 chalets, 7 of which have been constructed since the objectors acquired the site. The applicants own 67 of the chalets. The objectors own 16 chalets, including the 7 constructed since they acquired the site.

    (b) A 5 acre touring caravan park.

    (c) A large amenity building that is currently closed, except for a temporary bar situated in a conservatory.

    (d) A central area, in which there are two recently constructed buildings, one an office/reception/shop and the other a launderette and staff building.

    (e) An area where some holiday lodges have been constructed and the bases of others have been laid.

    At the time the applicants' leases were granted, the park comprised the first four of these areas, which together constitute the ``estate'' for the purpose of the restrictive covenant. Area (e) was added after the leases had been granted. The area on which the chalets stand is grassed, and the park contains internal roadways, car parking areas, pathways and drains and (among other features) a sewage pumphouse and a children's play area.

  5. The standard form lease under which all of the applicants hold their chalets is for 999 years at a yearly rent of £10. Rights of way and easements of passage for services across the estate are granted, together with car parking rights and the right to use areas of the estate designated by the lessor for purposes in connection with the use and enjoyment of the chalet. The lease contains at clause 2 the usual tenant's covenants. Covenant (q) is to pay a service rent, defined in clause 4 as a fair and equitable proportion of the sums actually incurred by the lessor in connection with the management and maintenance of the estate and the provision of services, including but not limited to the matters referred to in Schedule 3. Schedule 3 specifies the services that the...

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