The Recreation Ground, Bath (the “Rec”)
We act on behalf of Bath Rugby Ltd and Arena 1865 Ltd.
As you may be aware the Stadium for Bath project team of Bath Rugby, Arena 1865 and Bath Rugby Foundation are progressing plans to develop a new stadium at the Rec. Our clients’ project team feel a great sense of opportunity and responsibility with the project in terms of the stadium design, the opportunity for riverside regeneration, and also in terms of the significant contribution to be made to the community through the long term social legacy this project will create.
We are writing to you as a homeowner located close to the Rec. On 6 April 1922 a Deed was made between Francis William Forester, Brinsley John Hamilton FitzGerald and Arthur Brinsley FitzGerald and The Bath and County Recreation Ground Company Limited which imposed covenants on the Rec which could, if valid, affect development of any part of the Rec that our clients or anyone else might carry out.
Our clients have taken advice from specialist Counsel and have been advised that the covenants imposed in 1922 are not enforceable. Further information is set out in the attached “Q&A” which should be read with this letter. Due to the importance of the proposed development for our clients and for the City, Bath Rugby intends to ask the court to determine whether or not the covenants are enforceable. The application will be made in January 2019 under the Law of Property Act 1925, s 84(2) for a declaration that the covenants are not enforceable.
We attach a transcript of the Deed for your information so that you can decide, with legal advice if you wish, whether you agree with our clients’ application for the declaration. If you wish to oppose the application you will be asked to give legal reasons for this to the court.
To ensure your reasons are properly heard by the court, you would need to become a party to the court application.
We would therefore be grateful if you could confirm your position by Friday 25 January 2019 by completing the attached response form and returning it in the enclosed pre-paid envelope.
If you are not the owner of the property this letter is addressed to, please can you let us have their name and address on the response form so we can contact them directly.
For your information Bath Recreation Ltd, which is the sole trustee of Bath Recreation Ground Trust who hold the freehold title of the Rec, are aware of the contents of this letter. Furthermore, they have indicated to our clients that they welcome any steps which will provide further clarity for the site.
Royds Withy King
Transcript of the Conveyance dated 6 April 1922 of the Bath and County Recreation Ground from Captain Francis W.Forester to The Bath and County Recreation Ground Company Limited
This Indenture made the Sixth day of April, One thousand nine hundred and twenty-two Between Francis William Forester of Saxelbye Park, Melton Mowbray in the County of Leicester formerly a Captain in Her late Majesty’s Army (hereinafter called “the Vendor”) of the first part Brinsley John Hamilton FitzGerald of 63 Duke Street, Grosvenor Square in the County of London Esquire a Companion of the Most Honourable Order of the Bath and Arthur Henry Brinsley FitzGerald of Thorpe Satchville, Melton Mowbray in the County of Leicester Esquire (hereinafter called “the Trustees”) of the second part and The Bath and County Recreation Ground Company Limited whose registered Office is at 22 Milsom Street in the City of Bath (hereinafter called “the Purchasers”) of the third part. Whereas under an Indenture of Settlement (hereinafter called “the Settlement”) dated the Nineteenth day of July One thousand nine hundred and twenty and made between the Vendor and Henry William Forester of the one part and the Trustees of the other part the Bathwick Estate in the County of Somerset of which the hereditaments hereinafter described form part was assured subject to certain family charges affecting part of the said estate (but which part did not include any of the said hereditaments hereinafter described) to uses under which the Vendor is tenant for life in possession thereof And by the Settlement Trustees were appointed to be the Trustees thereof for the purposes of the Settled Land Acts 1882 to 1890. And whereas the joint power of appointment given by the Settlement to the said Francis William Forester and Henry William Forester has never been exercised so far as concerns the hereditaments hereinafter described. And whereas the Vendor as tenant for life in possession under the Settlement has agreed with the Purchasers for the sale to the Purchasers of the said hereditaments hereinafter described and the fee simple thereof in possession free from incumbrances at the price of Six thousand and fifty pounds. Now this Indenture made in the pursuance of the said agreement and in consideration of the sum of Six thousand and fifty pounds paid by the Purchasers by the direction of the Vendor to the Trustees as such Trustees as aforesaid (the receipt whereof the Trustees hereby acknowledge) witnesseth and it is hereby agreed and declared as follows that is to say:-
- The Vendor in exercise of the power of this purpose conferred by the Settled Land Acts 1882 to 1890 and of every other power enabling him and as beneficial owner hereby conveys unto the Purchasers All that piece or parcel of ground situate in the City of Bath and containing an area of Sixteen acres two roods and eleven perches or thereabouts and known as The Bath and County Recreation Ground Together with the building erected thereon near the North Parade Road formerly used as a Skating Rink and now in the occupation of Artcraft Limited and The Pavilion near to the Pulteney Mews now in the occupation of the Purchasers as Lessees thereof under an Indenture of Lease dated the Twenty fifth day of March One thousand nine hundred and eight and made between the Vendor of of [sic] the one part and Charles Henry Simpson and others of the other part and also the two buildings formerly used as two Cottages adjoining and on the South side of Pulteney Mews now in the occupation of the Purchasers and The Bath and County Croquet Club respectively Except and reserving unto the Vendor and his successors in title and his and their heirs and assigns the free and uninterrupted passage and running of water and soil from the other buildings and land of the Vendor and his tenants adjoining or near to the said hereditaments hereinbefore described through the sewers drains and water courses which are now or may hereafter be in or under the said premises To hold unto and to the use of the Purchasers their successors and assigns in fee simple discharged from all the limitations trusts powers and provisions of the said Settlement and from all estates interests and charges subsisting or to arise thereunder Subject to and with the benefit of an Indenture of Lease dated the Twenty fifth day of March One thousand nine hundred and eight and made between the Vendor of the one part and Charles Henry Simpson, James Edward Henshaw, Egbert Lewis, Alfred George Derwent Moger, William Morgan, and William Frederick Cooling of the other part Whereby the said hereditaments hereinbefore described were demised for a term of Twenty one years from the Twenty fifth day of March One thousand nine hundred and eight at the yearly rent of One hundred pounds.
- The Purchasers for themselves their successors and assigns hereby covenant with the Vendor his successors in title and assigns and to the intent and so that this covenant shall run with and be binding on such portions of the hereditaments and premises hereby conveyed as are respectively affected thereby into whosoever hands the same may come but so that the Purchasers shall not be personally liable in damages for any breach thereof after they shall have parted with the same hereditaments and premises that no workshops warehouses factories or other buildings for the purpose of any trade or business which may be or grow to be a nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining
premises or the neighbourhood shall at any time hereinafter be erected upon the said hereditaments and premises except the part thereof now in the occupation of Artcraft Limited and that nothing shall be hereafter erected placed built or done upon the said hereditaments and premises including such part thereof as last aforesaid which may be or grow to be a
nuisance annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood Provided always that no factory chimney shall be erected on the portion of the said hereditaments now in the occupation of Artcraft Limited.
- Provided always that so far as regards the reversion or remainder expectant on the life estate of the Vendor in the premises hereby conveyed and the title thereto and further assurance thereof after his death the statutory covenant by him implied in these presents shall not extend to the acts of defaults of any person other than and besides himself and persons deriving title under him.
- The Vendor hereby acknowledges the right of the Purchasers to production of the documents mentioned in the Schedule hereto and delivery of copies thereof and hereby undertakes for the safe custody thereof.
What are restrictive covenants?
Restrictive covenants are conditions that are written into a property’s deeds, which may restrict what a landowner or tenant can do with the land. The covenants can be enforced by a neighbour who has the right (called the “benefit” of the covenant) to do so.
What are the 1922 Covenants?
On 6 April 1922 a Deed was made between Francis William Forester, Brinsley John Hamilton FitzGerald and Arthur Brinsley FitzGerald and The Bath and County Recreation Ground Company Limited, which imposed covenants on the Rec relating to development on the site.
Why are Bath Rugby advised that no one has the benefit of the 1922 covenants?
Bath Rugby have taken advice from specialist Counsel and have been advised that the covenants imposed in 1922 are not enforceable. In legal terms there are only a limited number of ways in which a neighbour can claim to have the benefit or the right to enforce a covenant. These are:
- Annexation. It must be clear that the particular piece of land was intended to be benefitted by the covenant. There is no clear wording in the 1922 Deed that says which land should be benefitted.
- Assignment. If an original owner of benefitted land back in 1922 assigned in writing the benefit of the covenant to his successor in title, who in turn specifically assigned the benefit to his/her successor in title through a complete chain of assignments to the current owner then that current owner would, potentially, be able to enforce the covenant. No evidence of a chain of assignment in respect of any property has been identified.
- A scheme of development. The determination of whether a scheme of development dating from the Eighteenth or Nineteenth century exists is complex. In summary, the key criteria which should be met are as follows:
- both those with the benefit and burden of the covenant derived ownership of their land from a common seller; and
- prior to the first sale of the land the seller laid out the Estate for sale in lots and imposed restrictions on all of the lots; and
- the restrictions imposed must be consistent with a scheme of development; and
- the seller intended that the restrictions imposed were for the benefit of all the lots intended to be sold; and
- the lots were purchased from the original seller on the basis that the restrictions, subject to which the purchases were made, were to benefit the other lots.
No evidence that a scheme of development exists has been found and none was produced when Bath Rugby wrote previously to residents in 2013.
Bath Rugby and their legal advisers have thoroughly researched the position and have not found any evidence that the properties located in the vicinity of the Rec have the benefit of the covenant.
Your solicitor will be able to advise you further but if you think you have evidence that your property has the benefit of the 1922 Covenants please let us know.
Why does it matter what was said in 1922 and why are Bath Rugby doing this now?
If the 1922 Covenants were determined to be enforceable it could mean that development on the Rec can be prevented.
The matter of the 1922 Covenants has been public knowledge for some time, and obtaining clarity is an important step as part of the Stadium for Bath project. The Stadium for Bath project team felt that it was appropriate to address this matter at the same time as consulting on clear design proposals for redevelopment at the Rec.
What happens next?
Bath Rugby’s lawyers Royds Withy King sent letters to near neighbours of The Rec on 1December 2018. The period for a response is until 25 January 2019.
Bath Rugby and their legal advisors will consider any documentation or evidence that the local residents or their solicitors produce, which may show whether an area or property has the benefit of the covenants. An application will be made to the Court early next year for a declaration as to whether the covenants are enforceable. Any person who considers that they have legal reasons to claim the benefit of the covenant will be able to intervene in those court proceedings.
What is the position of Bath Recreation Ltd?
Bath Rugby have been liaising with Bath Recreation Ltd, which is the sole trustee of Bath Recreation Ground Trust who hold the freehold title of the Recreation Ground. They have also sought independent legal counsel opinion, which confirms the advice given to Bath Rugby. They also welcome any steps, which will provide further clarity for the Rec.