The claimant was the owner of land on which stood three houses, in relation to which it had obtained planning permission to demolish the houses and build a residential care home in their place. The claimant admitted that the building of any such care home would be a breach of certain restrictive covenants relating to the land, dating back to 1910, if they continued to affect its land or to be enforceable. The restrictive covenants, in essence and in relevant part, purported to restrict the use of the land to residential use and to limit the number of houses to be built on the land. The defendants, the owners of various plots of land adjoining the claimant’s land in whose favour those restrictive covenants had been given (and whose predecessors in title had also entered into similar restrictive covenants benefitting the claimant’s land), argued that the restrictive covenants continued to affect the claimant’s land and were enforceable against the claimant. The claimant brought a Part 8 claim for declarations relating to the restrictive covenants under section 84(2) of the Law of Property Act 1925 and/or the court’s inherent jurisdiction, arguing that (1) the defendants could not enforce the restrictive covenants against it because the predecessors in title of some of the defendants and other owners of adjoining plots of land not parties to the proceedings had themselves breached the density covenants relating to their own land, which provided that “not more than two—or three, depending on the land in question—detached dwelling houses shall at any time be erected upon any one of the said plots”, by building too many houses on it, which deprived the defendants of the right to enforce against the claimant and (2) by building such additional houses, they had made or permitted such changes in the character of the neighbourhood that the restrictive covenants had ceased to have practical effect.
On the claimant’s claim—
Held, claim dismissed. (1) Whilst some of the predecessors in title of the defendants and other adjoining landowners not parties to the proceedings had breached the restrictive covenants binding their land in building too many houses, on construction of the covenant itself, the wording “shall at any time be erected upon” was a “once and for all” breach and, no injunction proceedings having been brought against the landowner who caused the surplus house or houses to be built at the time, the successors in title could not be required to remove the surplus houses. A covenantee not itself in breach could not be disentitled from obtaining an injunction for breach of a negative covenant by the covenantor by reason of a breach by a collateral successor in title to the original covenantee. Accordingly, the defendants who had themselves not breached the density covenants affecting their land, or who had only committed trivial breaches, were not precluded from bringing injunction proceedings by reason of breach of such covenant by others subject to the same covenant. Nor could the doctrine of benefit and burden assist the claimant, since it applied only to positive covenants (paras 42–46, 48, 49–50, 57, 63–67, 68, 69–74, 75–77, 86).
(2) When considering the question as to whether there had been such change in the character of a neighbourhood that restrictive covenants originally seeking to protect that character ceased to have effect, the same standard of a complete change in the character of the neighbourhood, such that the covenants had lost all value, applied to everyone, except only to an applicant who had (or whose predecessors had) in effect represented that the covenants were no longer enforceable and others had relied on that representation to their detriment, that is where an estoppel argument could be raised against the applicant for an injunction. In the instant case there was therefore no reason to depart from applying the usual standard. Since the land belonging to the claimant and defendants and adjoining land taken as a whole remained high-quality and low-density residential housing, the restrictive covenants had not been deprived of substantial value. The 1910 covenants therefore continued to affect the claimant’s land and were in principle enforceable by injunction by any or all of the defendants against the claimant (paras 96, 98, 99, 100).
Jonathan Gaunt QC (instructed by Hill Dickinson llp) for the claimant.
Patrick Rolfe (instructed by Child & Child llp) for the defendants.