|The Rushden Echo and Argus, 4th July 1952, transcribed by Gill Hollis
Hall Avenue resident loses road action
Photographs of Hall Avenue, Rushden, were shown to Mr. Justice Vaisey in the Chancery Division yesterday, when one of the residents, Mr. William Frederick Cook, claimed an order that the road outside his house should be made up by the previous owner of the land to the satisfaction of the local authority.
Mr. Cook asked for specific performance by the defendant, Mr. Alfred Morris Wheeler, of Horton Kirby, Kent, of a covenant entered into in 1939 or, alternatively, damages. Mr. Cook alleged that the defendant had persistently refused to make up the road.
Defendant denied the claim and contended that the undue delay in bringing proceedings disentitled the plaintiff to any relief.
In evidence Mr. Cook said that there were about 100 houses in Hall Avenue and he was president of the Residents’ Committee formed to deal with the making-up of the road. Nearly all the residents belonged to the committee and were supporting his action.
Giving evidence for defendant, Mr. Ranald Leask Fordyce, director of Messrs. Fordyce Bros., Ltd., public works contractors, of St. Paul’s, Foots Cray, Kent, said he supervised the road work in Hall Avenue before the war. The concrete part of the road was laid in 1937 and the tarmac part in 1939, and the surveyor to Rushden Rural Council was satisfied with the job.
Questioned by Mr. Strangman about the potholes in the road and striking of parts of the concrete portion, Mr. Fordyce said that any road which had not been maintained for 13 years could be in that condition, or even worse. Mr. Strangman submitted that by the covenant defendant was to make up the stretch of road fronting plaintiff’s house in accordance with the local council’s byelaws and the standard of a domestic road, which had been done.
The true purpose of the action, however, was to throw upon the defendant the obligation of rehabilitating the deterioration of the past 13 to 15 years, so that the local authority would be willing to adopt the road.
His Lordship: “All these residents have the same covenant and, apparently, the only way they can get anything done is to serve 100 writs upon the defendant. I should have thought that something could be done to satisfy these unfortunate people.”
Mr. Raymond Jennings, Q.C., for plaintiff, said that if the road was not made up to the local authority’s satisfaction there might be later litigation on the question of indemnity to the residents. It should be possible to agree to some proportion of the cost “to stop this warfare going on.”
Mr. Strangman said defendant wished to be conciliatory but thought it unfair that he should have to bear the “ruinous” cost of making up the whole road to the council’s specification. Thirty-ton tanks had caused wear and tear and the council wanted the road to carry a volume of through traffic much heavier than that of a domestic road.
His Lordship said that the free conveyance by which Mr. Cook obtained his property was “a terrible and awful document” and it was to be hoped that the people in Rushden would be chary of accepting such conveyances in future.
Dismissing the action, his Lordship said that according to the covenant in the conveyance the defendant had to make up the stretch of road in front of the plaintiff’s house to domestic road standards and to the satisfaction of the local authority.
It was a ridiculous covenant and if specifically performed would produce a ludicrous position, because the local authority would never approve isolated plots of the road being made up in that way and the defendant had not tried to do it.
The conveyance could not be re-drafted, and as it was contrary to the whole principle of the court to order something which would be quite useless, it was impossible to grant specific performance of the covenant or to award damages. While there might be other remedies for the plaintiff and the 100 residents in a similar position, his Lordship said he would have “regretfully” to dismiss the action.
“I am sure that those responsible for this conveyance must deeply regret having led the purchasers of these plots into the snare and delusion where they now find themselves,” he said. “Inasmuch as this offending document originated from the defendant, I shall dismiss the action without costs.”