Country Estates Construction Ltd v Oxfordshire County Council

A covenant to provide and maintain landscaping must be construed by reference to its words, the document as a whole, the relevant planning permission and the background known to both parties. Where planning permission requires land to be reserved solely for landscaping, constructing a cycle path or pedestrian link through that land may breach the covenant, even if only a small area of planting is removed. The obligation to maintain may include replacing trees and plants that have died, been removed or seriously damaged. A de minimis argument fails where the proposed works materially alter the continuous landscaped boundary and its protective environmental purpose.

Country Estates sought an injunction preventing Oxfordshire County Council from constructing a cycle path and pedestrian link through a landscaping strip adjoining its industrial estate. The strip was on the Council’s retained land. The Council had covenanted under a 1988 transfer to provide and maintain landscaping on that land in accordance with planning permission requiring a strip at least 10 metres wide to be reserved solely for landscaping.

A preliminary issue was ordered as to whether the proposed works, or the removal or destruction of any part of the strip, would breach the covenant. The issue determined the action because the Council undertook not to proceed if the issue were decided against it.

1. The preliminary issue was decided in favour of Country Estates. On the true construction of the transfer, constructing the proposed cycle path and pedestrian link between the Council’s retained land and Cromwell Park would breach clause 4.

2. The court applied the contextual approach to construction stated by Lord Hoffmann in ICS Ltd v West Bromwich BS [1998] 1 WLR 896. The words of clause 4 and the planning permission had to be read in the context of the transfer as a whole and the background circumstances reasonably known to both parties when the transfer was made.

3. The words “in accordance with” governed the basis on which the landscaping was to be provided. Clause 4 therefore had to be read with the planning permission, including the requirement that, apart from the access into the site, a strip at least 10 metres wide be reserved solely for landscaping along the boundaries.

4. The planning permission’s purpose was not merely to provide adequate landscaping. It also defined the boundary of the planning unit and protected the agricultural land to the south. The landscaping, trees, hedgerows and fencing were intended to create a continuous barrier around the industrial estate, subject to the recognised qualification for the land adjoining the Council depot.

5. The proposed path would constitute a material change to the environment and purpose of the landscaping. It would provide access to the south, whereas the planning permission contemplated access to the Banbury Road to the north. The court rejected the Council’s construction that “maintain” meant only generally maintaining landscaping as a feature.

6. The obligation was continuing. In the context of the planning permission, it required the Council to replace trees and plants which had died, been removed or been seriously damaged in the next planting season.

7. The factual matrix did not alter that construction. The planning brief, particulars of sale and correspondence reinforced the importance of maintaining the southern, south-eastern and eastern landscaping strips. The proposed removal of less than 2 per cent of the planting was not de minimis because it would breach the requirement for a continuous landscaped screen.

8. The separate question concerning removal or destruction of any part of the landscaping strip was hypothetical. The judge indicated that it would almost certainly receive the same answer, but did not finally determine it.

Not an appeal. The judgment decided a preliminary issue in the High Court proceedings.