Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

4.The developer

[34.19] A fully mutual scheme binds the developer just as much as individual plot purchasers114 because he is not allowed to derogate from his own grants. This inflexibility may lock a builder into a development plan that proves to be uneconomic. Proper practice is to reserve an express115 right for the builder to alter the details of the scheme,116 whilst leaving individual purchasers mutually bound.117

F. RESTRICTIVE COVENANTS: NEIGHBOUR OBLIGATIONS

[34.20] Neighbour obligations are those imposed by covenanting with specific neighbours. A claimant seeking to enforce the restriction must show that he was the person originally benefitted (the covenantee) or that the benefit has passed to him from such a person.

1.Original benefits

[34.21] A covenant is a promise by deed, which can be enforced as a contract against the original covenantor.118 An original party can obtain damages or an injunction so long as he retains land which is benefitted. After he has sold it all, no injunction will be granted because he has no interest in actual performance, and his contractual damages will be nominal.119 The covenant can be enforced by120 or against121 personal representatives or a trustee in bankruptcy.122

2.Original benefit: existing neighbours – land registry transfers

[34.22] If a builder sells plot 2 on a building estate, the builder takes the benefit for plots 3 onwards, but it is also necessary to benefit the existing purchaser of plot 1. A deed poll is a deed made by one party which is viewed a quasi-public statement, and which have always been allowed to confer benefits on people who are non-parties.

114Spicer v. Martin (1888) 14 App Cas 12, HL; and many other cases.

115This may be implied: Re Birmingham & District Land Co v. Allday [1893] 1 Ch 342.

116Elliston v. Reacher [1908] 2 Ch 665, CA; Re Beechwood Homes’s Applic [1994] 2 EGLR 178, CA; and many other cases.

117Re Wembley Park Estate Co’s Transfer [1968] Ch 491, Goff J; Re Elm Avenue (Nos 6–12), New Milton ex p New Forest DC [1984] 1 WLR 1398, Scott J.

118Assignable: (1) at law if notice is given: LPA 1925 s 136; or (2) in equity without notice: Tailby v. Official Receiver (1888) 13 App Cas 523, 546.

119Stokes v. Russell (1790) 3 Term Rep 678, 100 ER 799; London CC v. Allen [1914] 3 KB 642, 660.

120Formby v. Baker [1903] 2 Ch 539, 554, Romer LJ, 556–557, Stirling LJ; South Eastern Rly v.

Associated Portland Cement Manufacturers (1900) [1910] 1 Ch 12; Law Reform (MP) Act 1934 s 1(1);

Beswick v. Beswick [1968] AC 58, HL.

121Youngmin v. Heath [1974] 1 WLR 135. Liability is attracted by entry under a lease, unless avoiding action is taken.

122Beckham v. Drake (1849) 2 HLC 579, 627; Jennings Trustees v. King [1952] Ch 899; see above

[27.19ff].

Land registry transfers are a form of deed poll, so benefits can be given to those outside the transfer.123

3.Original benefit: existing neighbours – conveyances of unregistered land

[34.23] An unregistered conveyance is an indenture, that is a private arrangement between two parties. Outsiders had to be joined as parties at common law,124 but this archaic rule was amended in 1845,125 and again by section 56 of the Law of Property Act 1925. An immediate benefit is now allowed to a person who is not a party to the deed.126 People named take as original covenantees.127 If a husband conveys the matrimonial home to his wife on terms that she covenants with the mortgage lender to pay mortgage instalments, the lender is able to enforce that covenant without being joined in the conveyance.128 A buyer of plot 2 can covenant with the existing buyer of plot

1.129

Non-parties are included only if an attempt is made to covenant with them.130 In Beswick v. Beswick, a covenant between nephew and uncle did not purport to confer a pension directly on the plaintiff widow, so she was not able to enforce the promise in a personal capacity.131 In Lyus v. Prowsa Developments132 a sale of a building estate subject to an contract to sell one plot to Lyus gave him no rights against the buyer of the whole development. Wiles v. Banks133 was a successful case in which sale of land subject to a new access for the owner or occupier of the vicarage did confer a right of way on the vicar.

People to benefit may be identified by being named individually, by reference to the owners of particular land,134 or by defining a class, such as “existing plot owners”.135 Rights granted under the modern wording include options,136 contracts,137 easements138 and future rights. Restrictive covenants have been in since 1845,139 but the

123Chelsea & Waltham Green BS v. Armstrong [1951] Ch 853, Vaisey J.

124Beswick v. Beswick [1968] AC 56, 102–103, Lord Upjohn; G Treitel (1967) 30 MLR 687, 688.

125Real Property Act 1845 s 5; G Treitel (1967) 30 MLR 687, 690.

126White v. Bijou Mansions [1937] Ch 610, 623, Simonds J; on appeal [1938] Ch 351, CA. Not other documents despite the last word; Beswick v. Beswick [1968] AC 56, 106G, 107A; JA Andrews (1959) 23 Conv (NS) 179; G Treitel (1967) 30 MLR 687, 690 (not ratio?).

127DW Elliott (1956) 20 Conv (NS) 43, 114 (excellent review of the land cases before Beswick).

128Re Windle [1975] 1 WLR 1628, Goff J.

129Re Selwyn’s Conveyance [1967] Ch 674, Goff J.

130White v. Bijou Mansions [1937] Ch 610, 624, Simonds J; on appeal [1938] Ch 351, 365, Lord Greene MR; Smith & Snipes Hall Farm v. River Douglas Catchment Board [1949] 2 KB 500, 517, Denning LJ; Amsprop Trading v. Harris Distribution [1997] 1 WLR 1025, Neuberger J.

131[1968] AC 56, HL; G Treitel (1967) 30 MLR 687, 690.

132[1982] 1 WLR 1044, Dillon J.

133(1985) 50 P & CR 80, Megarry V-C at first instance; Beswick [1968] AC 56, 75D, Lord Reid.

134Kelsey v. Dodd (1881) 52 LJ Ch 34, 39, Jessel MR; Westhoughton UDC v. Wigan Coal & Iron Co

[1919] 1 Ch 159; Pinemain v. Welbeck International [1984] 2 EGLR 91.

135Dyson v. Forster [1909] AC 98, HL; Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch 430; DW Elliott (1956) 20 Conv (NS) 43, 48–49; Re Shaw’s Applic (1995) 68 P & CR 591, L Tr.

136White v. Bijou Mansions [1937] Ch 610, 624, Simonds J; Stromdale & Ball v. Burden [1952] Ch 223, Danckwerts J.

137Lyus as above.

138Wiles v. Banks as above.

139Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch 430; LPA 1925 s 56(1): Re Selwyn’s Conveyance [1967] Ch 674, Goff J.

1925 wording extends to covenants not touching and concerning the land.140 The 1845 Act covered freehold land141 but was extended in 1925 to include leases.142 However, Beswick v. Beswick decided143 that the historical context requires restriction to land, excluding for example ordinary contracts and insurance policies.144 In these contexts the Contracts (Rights of Third Parties) Act 1999 now permits the assignment of benefits but in relation to land it does not add much to section 56.

G. RESTRICTIVE COVENANTS: ANNEXATION

[34.24] Annexation is a process undertaken at the time of creation of the covenant to affix its benefit to particular land.145 Once done:

“[T]he benefit will pass automatically on a conveyance of the land, without express mention, because it is annexed to the land and runs with it.”146

This treasure may lie hidden, awaiting discovery in the hour of need.147

1.Post-1925 statutory annexation

[34.25] Section 78 of the Law of Property Act 1925 effects annexation for any restrictive covenant made after 1925 unless its effect is excluded. Brightman LJ’s judgment in Federated Homes v. Mill Lodge Properties148 settled this point, at least as far as the Court of Appeal.149 Section 78(1) of the Law of Property Act 1925 provides for a restrictive150 covenant relating to any land of the covenantee to include:

(1)the covenantee;

(2)his successors in title;151

140 Beswick v. Beswick [1968] AC 58, 79C, Lord Hodson; G Treitel (1967) 30 MLR 687, 689–690; Wolstenholme & Cherry, Conveyancing Statutes (13th ed), 133; Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch 430, 438, Luxmoore LJ. Old law: Grant v. Edmondson [1931] 1 Ch 1, CA; Foster v. Elvet Colliery Co [1908] 1 KB 629, CA; despite [1909] AC 98, 102, Lord Macnaghten.

141Real Property Act 1845 s 5.

142Stromdale & Ball v. Burden [1952] Ch 223, Danckwerts J.

143[1968] AC 58, 77C, 79H–80A, 85D–E; but see to the contrary at 94, 106–107.

144Re Sinclair’s LP [1938] 3 All ER 124; Re Foster [1938] 3 All ER 357; Re Distributors and Warehousing

[1986] 1 EGLR 90, 94.

145Rogers v. Hosegood [1900] 2 Ch 388, 407, Collins LJ; Formby v. Barker [1903] 2 Ch 539, 551, Vaughan Williams LJ; Re Heywood’s Conv [1938] 2 All ER 236.

146Federated Homes v. Mill Lodge Property [1980] 1 WLR 594, 603C, Brightman LJ; Miles v. Easter

[1933] Ch 611, 628, Romer LJ.

147Lawrence v. South Counties Freeholds [1939] Ch 656, 680; R v. Westminster CC ex p Leicester Square Coventry Street Association (1989) 59 P & CR 51, 57, Simon Brown J; Rogers v. Hosegood [1900] 2 Ch 388, 408, Collins LJ; Reid v. Bickerstaff [1909] 2 Ch 305, 320, Cozens-Hardy MR.

148[1980] 1 WLR 594, CA; DJ Hayton (1980) 43 MLR 445; A Sydenham [1980] Conv 216; Smith & Snipes Hall Farm v. River Douglas River Catchment Board [1949] 2 KB 500, CA; Williams v. Unit Construction Co (1951) 19 Conv (NS) 262.

149[1980] 1 WLR 594, 603C Brightman LJ (obiter); Roake v. Chadha [1984] 1 WLR 40, 45A–E (ratio);

Shropshire CC v. Edwards (1982) 46 P & CR 270; J Sainsbury v. Enfield LBC [1989] 1 WLR 590; Robins v.

Berkeley Homes (Kent) [1996] EGCS 75; Whitgift Homes v. Stocks [2001] EWCA Civ 1732, [2001] 48 EG 130 (CS).

150Category (3) does not apply to positive covenants.

151Ie those who take on his death.

(3)the owners or occupiers for the time being of the land of the covenantee intended to be benefitted; and

(4)persons deriving title under the earlier categories.152

Category (3) implies by statute the Drake v. Gray153 formula for express annexation – “and the owners and occupiers for the time being”. Professor Radcliffe154 first suggested that statutory annexation must follow. Despite the numerous cases which had ignored the section,155 Radcliffe’s argument was finally accepted (many years late) in Federated Homes. Action was taken against the original covenanting party (Mill Lodge)156 to enforce a covenant not to build more than 300 houses on its blue land, Mill Lodge obtained planning permission for a further 32 houses which, if built, would have reduced the density permitted on the land protected by the covenant. The red part was sold several times, on the last occasion by a registered transfer to Federated Homes which omitted any direct mention of the covenant. There was neither words of annexation nor a complete chain of assignments, but the covenant had passed to Federated Homes by statutory annexation.157

A minimum requirement for statutory annexation is that the benefitted land should be described in the conveyance158 or indicated by necessary implication:159 a bald covenant by “A with B” would not effect annexation.

2.Pre-1926 covenants

[34.26] Express annexation is required if the covenant was created before 1926.160 The Conveyancing Act 1881 applied to covenants entered into between 1882 and 1925 but it refers to specific persons161 rather than to successive owners of the benefitted land. This is “insufficient without more” to effect annexation.”162

Classic Rogers v. Hosegood163 formulae for express annexation were:

(1)a covenant with the covenantee “and the owners for the time being of the benefitted land”164; or

152LPA 1925 s 79 is similar for burdens but they are not annexed without registration: Tophams v. Earl of Sefton [1967] 1 AC 50, HL (Aintree racecourse); PB Fairest [1966] CLJ 169; Federated Homes, at 606B, Brightman LJ (s 79 involves “quite different considerations”).

153[1936] Ch 451, CA; Rogers v. Hosegood [1900] 2 Ch 388, CA; Kelly v. Barrett [1924] 2 Ch 379, 403, Pollock MR; Miles v. Easter [1933] Ch 611, CA; see below [34.26].

154GRY Radcliffe (1941) 57 LQR 203, 204–207; HWR Wade [1972B] CLJ 157; PV Baker (1968) 84 LQR 22; DJ Hayton (1971) 87 LQR 339.

155Eg Zetland v. Driver [1939] Ch 1, CA; Re Jeff’s Transfer [1966] 1 WLR 841.

156Ie enforcement was contractual rather than proprietary.

157At 607C, Brightman LJ.

158Federated Homes at 604.

159Bridges v. Harrow LBC [1981] 1 EGLR 143, 146H–147A, Stuart-Smith J; F Webb [1984] Conv 313;

Re Hextall’s Application (2000) 79 P & CR 382, L Tr.

160Newton Abbot Co-operative Society v. Williamson & Treadgold [1952] Ch 286, Upjohn J; L Elphinstone (1952) 68 LQR 353.

161Conveyancing Act 1881 s 58 – basically the covenanting party and his successors on death.

162J Sainsbury v. Enfield LBC [1989] 1 WLR 590, 601E, Morritt J; see: Renals v. Cowlishaw (1878) 9 Ch D 125; Reid v. Bickerstaff [1909] 2 Ch 305; Ives v. Brown [1919] 2 Ch 314; Miles v. Easter [1933] Ch 611;

Shropshire CC v. Edwards (1982) 46 P & CR 270.

163[1900] 2 Ch 388, CA (home of Sir John Everett Millais).

164See above [34.25].

(2)a covenant “for the benefit of the benefitted land”165; or

(3)equivalent phrases identifying the land.166

Annexation may be implied where there is no express formula167 but an intention to annex can be collected from the surrounding circumstances.168 Such a case was Shropshire County Council v. Edwards.169 The site of Nobold House was sold in 1908 with a covenant that the seller was to use his remaining land only for agriculture. Since the intention was to secure a supply of water and to protect Nobold House from building, the benefit was clearly intended to pass to successive land owners.170 The current owners could prevent the County Council from turning the land into a site for gypsy caravans. It is questionable whether implied annexation will survive scrutiny at appellate level.

3.Annexation to parts

[34.27] A covenant is attached to each part of the benefitted land by annexation, whether the process if express171 or statutory,172 and a covenant also passes to a leaseholder.173 Hence a covenant does not fail in its entirety merely because the benefit is defined to include land incapable of benefit.174 Specific wording may limit this effect, for example limiting the benefit to the purchaser of the entire development site as opposed to the buyers of individual plots.175

4.Assignable covenants

[34.28] Statutory annexation is not in fact “Automatic Annexation”,176 since it can be excluded,177 for example by indicating that the benefit requires express assignment.178

165Russell v. Archdale [1964] Ch 38; Re Jeff’s Transfer [1966] 1 WLR 841; Stilwell v. Blackman [1968] Ch 508; Wrotham Park Estate Co v. Parkside Homes [1974] 1 WLR 798.

166[1900] 2 Ch 388, 406, Collins MR; Renals v. Cowlishaw (1879) 11 Ch D 866, 868; Reid v. Bickerstaff [1909] 2 Ch 305, 321, 325; Ives v. Brown [1919] 2 Ch 314; Re Sunnyfield [1932] 1 Ch 79; Miles v. Easter [1933] Ch 611, 634–636.

167At 638A, Harman LJ.

168McLean v. McKay (1873) LR 5 PC 327; Rogers v. Hosegood [1900] 2 Ch 388, 408, Collins LJ;

Westhoughton UDC v. Wigan Coal & Iron Co [1919] 1 Ch 159, Swinfen Eady MR; Marten v. Flight Refuelling

[1962] Ch 115; EC Ryder (1972) 36 Conv (NS) 20; Re Hextall’s Applic (2000) 79 P & CR 382, L Tr.

169(1983) 46 P & CR 270.

170Contrast J Sainsbury v. Enfield LBC [1989] 1 WLR 590; S Goulding [1989] Conv 52; JE Martin [1989]

Conv 358; Re Jeff’s Transfer (No 2) [1966] 1 WLR 841, Stamp J.

171Drake v. Gray [1936] Ch 451, 465, Romer LJ; Zetland v. Driver [1939] Ch 1, CA. There are a number of contrary dicta.

172Federated Homes [1980] 1 WLR 594, 606G–607D, Brightman LJ, 607H–608D, Megaw LJ; Williams

v.Unit Construction Co (1961) 19 Conv (NS) 262.

173Taite v. Gosling (1879) 11 Ch D 273; Holoway v. Hill [1902] 2 Ch 612; Westhoughton UDC v. Wigan Coal & Iron Co [1919] 1 Ch 159; Long v. Gray (1913) 58 SJ 46, CA.

174Re Ballard’s Conveyance [1937] Ch 473, Clauson J; but see Zetland v. Driver [1939] Ch 1, CA.

175Miles v. Easter [1933] Ch 611, 628, Romer LJ; Drake v. Gray [1936] Ch 451, 459–461, Slesser LJ; Re Selwyn’s Conveyance [1967] Ch 674, 686–689, Goff J; Re Jeff’s Transfer (No 2) [1966] 1 WLR 841, Stamp J; Wrotham Park Estate Co v. Parkside Estate [1974] 1 WLR 798; Everett v. Remington [1892] 3 Ch 148; Robins v. Berkeley Homes (Kent) [1996] EGCS 75.

176Despite GH Newsom’s counterblast, (1981) 97 LQR 32, against the monstrous regiment of annexers.

177At 46; Federated Homes [1980] 1 WLR 594, 606, Brightman LJ; L Elphinstone, Covenants Affecting Land (Solicitors’ Law Stationery Society, 1946), 17; contrast s 79 on burdens.

178Roake v. Chadha [1984] 1 WLR 40, Ch D; PN Todd [1984] Conv 68; PN Todd [1985] Conv 177.

Assignable covenants were created before 1926 by (1) including reference to “assigns”179 but (2) omitting any reference to future landowners.180 This achieved assignability without annexation. 181

A restrictive covenant cannot be assigned in isolation from the land, so that the seller must own land before the sale182 and the buyer afterwards.183 Unregistered land is usually sold “together with” the benefit of existing covenants “so far as the same are still subsisting”.184 The chain of assignments must be complete.185 In Federated Homes v. Mill Lodge the green land was sold by Mackenzie Hill to Brandts to Federated Homes with a complete series of express assignments,186 but the chain broke in relation to the red land after compulsory registration of title and a transfer that did not refer to the covenant.

5.Personal covenants

[34.29] It is of course possible to go further and to make clear that the covenant is personal between the original landowners187 but since 1881188 assignability is assumed and explicit words have been required to exclude it.189

H. RESTRICTIVE COVENANTS: FAILURE OF BENEFIT

[34.30] The court has power to declare whether or not a restrictive covenant applies in any given event190 on the application of any person interested.191 Restrictive covenants are declared to be moribund once there is no person in existence able to enforce them. Successful applicants must prove (1) the absence of original covenantees, (2) the failure of annexation, assignment and building schemes and (3) sale of the benefitted land by the original covenantees precluding the possibility of future

179Between 1882 and 1925 “assigns” were included by statute: Conveyancing Act 1881 s 56; Ives v. Brown [1919] 2 Ch 314; Miles v. Easter [1933] Ch 611; Forster v. Elvet Colliery Co [1908] 1 KB 629, CA; Re Pinewood Estate, Farnborough [1958] Ch 280; J Sainsbury v. Enfield LBC [1989] 1 WLR 590, Morritt J.

180Kelsey v. Dodd (1881) 52 LJ Ch 34, Jessel MR; Renals v. Cowlishaw (1879) 11 Ch D 866, CA; Reid v. Bickerstaff [1909] 2 Ch 305, CA.

181Newton Abbot Co-operative Society v. Williamson & Treadgold [1952] Ch 286, Upjohn J (covenant made in 1925); L Elphinstone (1952) 68 LQR 353; Marten v. Flight Refuelling [1962] Ch 115, 130, Wilberforce J.

182Chambers v. Randall [1923] 1 Ch 149, Sargant J; Miles v. Easter [1933] Ch 611, 636, Romer LJ; Re Sunnyfield [1932] 1 Ch 79.

183Formby v. Barker [1903] 2 Ch 539, 554, Romer LJ.

184Stilwell v. Blackman [1968] Ch 508, Ungoed-Thomas J.

185Some cases suggest the possibility of delayed annexation ie that occurring on a first (or later?) assignment: Rogers v. Hosegood [1900] 2 Ch 388, 408, Collins LJ; Stilwell v. Blackman [1968] Ch 508, 522–523; Federated Homes [1980] 1 WLR 594, 603–604, Brightman LJ. This is surely dubious.

186[1980] 1 WLR 594, 603B.

187Osborne v. Bradley [1903] 2 Ch 446, 450, Farwell J.

188Conveyancing Act 1881 s 56; Stilwell at 525; LPA 1925 s 78; Caerns Motor Services v. Texaco [1994]

1WLR 1249.

189Federated Homes at 601E–603A.

190LPA 1925 s 84(2); Re MCA (East) [2002] EWHC 1684 (Ch); modification is left to the L Tr under ss (1); Griffiths v. Band (1974) 29 P & CR 243, Goulding J.

191Costs are payable while potential objectors consider their position: Re Jeff’s Transfer [1965] 1 WLR 972; (No 2) [1966] 1 All ER 937; Re Wembley Park Estate Co’s Transfer [1968] 1 All ER 457, Goff J.

assignment.192 Many cases fall short,193 but in a successful case the court will declare that the covenant is unenforceable,194 binding the land, extinguishing the covenant, and leading to cancellation of protective entries.195

I.RESTRICTIVE COVENANTS: REMEDIES

1.Remedies for breach of an easement

[34.31] There are two remedies for infringement of an easement. Abatement is physical obstruction or removal of an offending item Thus if a right of way is blocked up or a locked gate erected, it can be torn down. It is closely controlled: force used must be reasonable with no injury to others or the public, and no breach of the peace. Service of a notice is wise but not essential.196 An action may seek damages – recoverable in trespass without proof of actual damage – but other appropriate remedies include an injunction to prevent future interference, a mandatory injunction to require removal of an obstruction, or a declaration. There is power to refuse an injunction, as in a parking case where the dominant tenement had been extended, and award damages in lieu.197

2.Injunctions for breach of a covenant

[34.32] Equity usually enforces restrictions. A full injunction follows as of course after proof of any deliberate violation198 since Doherty v. Allman removes any general discretion to balance the convenience of the parties.199 Seriousness of the injury suffered is only relevant, when deciding whether to substitute an award of damages.200 Mandatory injunctions are issued more sparingly,201 and it will probably be too late to obtain an injunction if demolition is required.202

192 Or that the benefitted attached to a whole estate which no longer exists: Re Freeman-Thomas Indenture [1957] 1 All ER 532.

193Shropshire CC v. Edwards (1983) 46 P & CR 270 (implied annexation); Re 6–12 Elm Avenue, New Milton ex p New Forest DC [1984] 1 WLR 1398, Scott J.

194Re Sunnyfield [1932] 1 Ch 79; Re Pinewood Estate, Farnborough [1958] Ch 280; Re Wembley Park Estate Co’s T [1968] 1 All ER 457.

195Re Sunnyfield [1932] 1 Ch 79. For land registry mechanics see above at [20.12].

196Lane v. Capsey [1891] 3 Ch 411, Chitty J (pulling down house); Hill v. Cock (1872) 26 LT 185 (limited to least act needed); Roberts v. Rose (1865) LR 1 Ex 82 (block watercourse); Davies v. Williams (1851) 16 QB 546, 117 ER 988; Perry v. Fitzhow (1846) 8 QB 757, 115 ER 1057 (cannot pull down house in occupation); Lagan Navigation Co v. Lambeg Bleaching etc Co [1927] AC 226, 244, Lord Atkinson (liable without notice).

197Das v. Linden [2002] EWCA Civ 590, [2002] 2 EGLR 76.

198Mann v. Stephens (1846) 15 Sim 377, 60 ER 665.

199(1878) 3 App Cas 709, 720, Lord Cairns; Osborne v. Bradley [1903] 2 Ch 446, 450–451, Farwell J; Re Lancaster Gate (No 108) [1933] Ch 419.

200Western v. Macdermott (1866) LR 2 Ch App 72; Leech v. Schweder (1874) LR 9 Ch App 463; Manners v. Johnson (1875) 1 Ch D 673; Richards v. Revitt (1877) 7 Ch D 224.

201Morris v. Redland Bricks [1970] AC 652, 665.

202JE Martin [1996] Conv 329, 330–335.

Interlocutory injunctions are also obtainable as of right.203 Megarry J refused an interim injunction in Shepherd Homes v. Sandham204 which would have required the removal of fencing on an open-plan estate at Caerphilly, despite repeated incursions by Welsh mountain sheep. Enforceability of the covenant was left for consideration at full trial.

3.Damages in lieu of injunction

[34.33] Lord Cairns’ Act 1858205 created the power to award “equitable damages” when there is power to grant an injunction, but damages would be more appropriate.206 In Wrotham Park Estate Co v. Parkside Homes207 a mandatory injunction to knock down houses was refused, but the case was tailor-made for the award of damages in place of an equitable remedy. If all benefitted land has been sold, the covenant is no longer enforceable in equity and this removes the power to award equitable damages.208 Damages are a particularly appropriate remedy where the covenanting party has been lulled into a false sense of security.209

Quantification is governed by Shelfer v. City of London Electric Lighting Co.210 The injury must be small, translatable to money, and capable of compensation by a small payment. Compensation for a past one-off breach is identical at law and in equity, and may possibly be zero.211 If covenants are enforced against buyers, who are not liable at law, new compensation rights are created. Awards of damages give a forced licence for the future wrong, so the neighbour must be compensated for the continuing loss,212 and the neighbour necessarily receives more than common law damages as in Wrotham Park Estate Co v. Parkside Homes213 and Jaggard v. Sawyer.214 The measure is what the sum reasonable parties would reach by negotiation.215 Further development of the concept of restitutionary damages216 may result in a developer being required to account for the profit he makes from breaking his contract: traditional damages compensate for loss, but there is also a role for punishment of a flagrant breach of covenant for commercial reasons.217

203Hampstead & Suburban Properties v. Diomedous [1969] 1 Ch 248; Shepherd Homes v. Sandham [1971] Ch 340, Megarry J; JE Martin [1996] Conv 329, 332–334.

204[1971] Ch 340, Megarry J.

205Chancery Amendment Act 1858 s 2; the jurisdiction survives repeal of the Act.

206Jaggard v. Sawyer [1995] 1 WLR 269, CA; Gafford v. Graham (1999) 77 P & CR 73, CA.

207[1974] 1 WLR 798, 811D–816C, Brightman J.

208Surrey CC v. Bredero Homes [1993] 1 WLR 1361, CA.

209Shaw v. Applegate [1977] 1 WLR 970, CA; Gafford v. Graham (1999) 77 P & CR 73, CA.

210[1895] 1 Ch 287, 322–323, AL Smith LJ; Ketley v. Gooden (1997) 73 P & CR 305, CA; P Jolowictz [1975] CLJ 224.

211Johnson v. Agnew [1980] AC 367, 400C, Lord Wilberforce.

212Jaggard v. Sawyer [1995] 1 WLR 269, 285G–H, Millett LJ; Leeds Industrial Co-Operative Society v. Slack [1921] AC 851, HL; Amec Developments v. Jury’s Hotel Management (UK) [2001] 1 EGLR 81, Ch D.

213[1974] 1 WLR 798, Brightman J; Baxter v. Four Oaks Property [1965] Ch 816; Surrey CC v. Bredero Homes [1993] 1 WLR 1361, 1369F, Steyn LJ. (contrary to Dillon LJ at 1366–1367); T Ingram [1994] Conv 110; P McDermott (1991) 107 LQR 652.

214[1995] 1 WLR 269, CA; JE Martin [1996] Conv 329, 339.

215Amec Developments v. Jury’s Hotel Management (UK) [2001] 1 EGLR 81, Ch D.

216PBH Birks (1993) 109 LQR 518; Att-Gen v. Blake [1998] Ch 439, 455–459, Lord Woolf MR; on appeal [2001] 1 AC 268, HL; M Chen-Wishart (1998) 114 LQR 363.

217Wrotham Park SE v. Hertsmere BC (1993) 33 RVR 56, CA; Jaggard v. Sawyer [1995] 1 WLR 269, 281, Bingham MR, 291D, Millett LJ.

4.Defences – where unconscionable to enforce

[34.34] A court of equity is bound to enforce the covenant unless the plaintiff has become disentitled to sue, either by his own acts or those of his predecessors.218 A contractual release is a defence.219 However in most cases the issue is whether there has been an equitable release on one of two grounds:

(1) Acquiescence or delay

[34.35] What is required220 is conduct by the claimant or his predecessors constituting an estoppel, so that it is now inequitable to allow him to take action, though it is not necessary to find all the probanda of passive inducement.221 Acquiescence in minor breaches does not affect the right of action on a more serious breach222 or one which is different in character.223 One claimant224 failed in his attempt to close down an off-licence from which he himself had bought beer.

Acquiescence slips seamlessly into delay. A building obviously should not be demolished after it has been allowed to remain for five years.225 Five months was sufficient to bar one old claim,226 but more recent cases have allowed enforcement after significant delays.227 Interim or mandatory remedies may be lost after very short periods,228 for example in Shaw v. Applegate229 where an amusement arcade was allowed to run in breach of covenant between 1971 and 1976 before an action was instituted. Where it is unconscionable to enforce the covenant, damages may be awarded in lieu.

(2) Change in neighbourhood

[34.36] A covenant may become obsolete because of changes in the character of the neighbourhood it protects. Bedford v. British Museum Trustees230 concerned a covenant imposed in 1675 restricting development round Montagu House, now a constituent part of the British Museum. A proposal to build additional space to house the Elgin marbles infringed the wording of the 1675 covenant, but the covenants were no longer binding. Bloomsbury had been engulfed by urban London, to such an extent that earlier restrictions had ceased to have any relevance. This same change of local-

218Osborne v. Bradley [1903] 2 Ch 443, 450–451.

219Elliston v. Reacher [1908] 2 Ch 374, Parker J; Re Pinewood Estate, Farnborough [1958] Ch 280.

220German v. Chapman (1877) 7 Ch D 271, CA; Knight v. Simmonds [1896] 2 Ch 294, 298, Lindley LJ.

221Osborne v. Bradley [1903] 2 Ch 443, Farwell J; Shaw v. Applegate [1977] 1 WLR 970, Goff LJ.

222Western v. MacDermott (1866) LR 2 Ch App 72; Meredith v. Wilson (1893) 69 LT 336.

223Chatsworth Estates Co v. Fewell [1931] 1 Ch 224.

224Sayers v. Collyer (1884) 28 Ch D 103; Goddard v. Midland Rly Co (1891) 8 TLR 126 (plaintiff also in breach).

225Gaskin v. Balls (1879) 13 Ch D 324 (5 years); Gafford v. Graham (1998) 77 P & CR 73, CA.

226Roper v. Williams (1822) Turn & R 18, 22, 37 ER 999, Eldon LC.

227Northumberland v. Bowman (1887) 56 LT 773 (14 months); Elliston v. Reacher [1908] 2 Ch 374, Parker J.

228Shepherd Homes v. Sandham [1971] Ch 340.

229[1978] 1 All ER 123, CA.

230(1822) 2 My & K 552, 39 ER 1055.

ity defence has succeeded in a few later cases,231 but there are many more that have failed.232 The defence applies where the change in the neighbourhood is attributable to the claimant, his predecessors,233 or (probably) anyone else.234

J.RESTRICTIVE COVENANTS: MODIFICATION

1.Application to modify to Lands Tribunal

[34.37] The Lands Tribunal235 has jurisdiction to discharge or modify restrictions236 on the application of any person interested in the land affected. Application to the Lands Tribunal can be used as a temporary defence,237 justifying a stay of enforcement proceedings until the Tribunal ruling,238 though a cross-undertaking is required for damages.239 The status quo is maintained pending a hearing.240

2.Covenants affected

[34.38] Most applications are to vary freehold restrictions, whether or not in the form of covenants, whether pre-1926 or post-1925 in origin, and whether or not title is registered.241 Different schemes apply to covenants imposed on the enfranchisement of long residential leases and in the public sector,242 but positive covenants are beyond the reach of the Tribunal.243 An alternative power is to discharge or modify restrictive covenants in long leases – meaning a term over 40 years244 – after 25 years of the lease have run.245 Estate management schemes created on the enfranchisement of long

231Peek v. Matthews (1867) LR 3 Eq 515 (same if defendant buys after breaches); Kelsey v. Dodd (1881) 52 LJ Ch 34; Sobey v. Sainsbury [1913] 2 Ch 513 (Boscombe Manor Estate of the Shelley family); Att-Gen for Hong Kong v. Fairfax [1997] 1 WLR 149, PC (“clearest possible case”).

232Eg Tulk v. Moxhay at first instance (1848) 18 LJ Ch 83; Elliston v. Reacher [1908] 2 Ch 374, Parker J (no appeal on this point); Robins v. Berkeley Homes (Kent) [1996] EGCS 75.

233Bedford v. British Museum; Sayers v. Collyer (1884) 28 Ch D 103, CA; Osborne v. Bradley [1903] 2 Ch 443; Pulleyne v. France (No 1) (1912) 57 SJ 173, CA.

234German v. Chapman (1877) 7 Ch D 271, 279, James LJ; Knight v. Simonds [1896] 2 Ch 294, CA; Sobey

v.Sainsbury [1913] 2 Ch 513, Sargant J; Chatsworth Estates Co v. Fewell [1931] 1 Ch 224.

235LPA 1969 s 28(1).

236LPA 1925 s 84(1); P Polden (1986) 49 MLR 195.

237Forfeiture proceedings (leasehold land) will not be stayed: Iveagh v. Harris [1929] 2 Ch 142, Eve J; query whether this is logical.

238LPA 1925 s 84(9); Fielden v. Byrne [1926] Ch 620; Richardson v. Jackson [1954] 1 WLR 447 (not if the application will clearly fail); Shepherd Homes v. Sandham [1971] Ch 341, 352F, Megarry J.

239Hanning v. Gable-Jeffreys Properties [1965] 1 WLR 1390; Shepherd Homes at 353.

240Holdom v. Kidd [1991] 1 EGLR 57, CA (agricultural purposes; gypsy site).

241LPA 1925 s 84(7)–(8); the wording is varied by LRA 2002 sch 11; Langevad v. Chiswick Quay Freeholds [1999] 1 EGLR 61, CA.

242L Ref A 1967 s 19 as amended; TCPA 1990 s 106A (inserted in 1991); Re Milius’ Applic (1995) 70 P

&CR 427; Re Willis’ Applic [1997] 2 EGLR 185.

243Westminster CC v. Duke of Westminster (1992) 24 HLR 572, CA (covenant to use for the working classes); Re Bedwell Park Quarry Co v. Hertfordshire CC [1993] JPL 349, CA (infilling).

244LPA 1925 s 84 (as amended; originally 50 years); Ridley v. Taylor [1965] 1 WLR 611, CA; Re St Mary Magdalene, Stoke Bishop (1969) 20 P & CR 508, L Tr (1000 year leases).

245LPA 1925 s 84(12); mining leases are excluded; Ridley v. Taylor [1965] 1 WLR 611, CA (25 years from latest modification); Cadogan v. Guinness [1936] Ch 515, Clauson J (reckon from the date of grant of lease).