Covenant restraining erection of buildings except as defined — Planning permission granted for community centre and mosque in 1988 — Plaintiffs having benefit of restrictive covenant — Proceedings issued in August 1989 — Whether plaintiffs aware of proposed development — Whether restrictive covenant overridden by statutory powers — Whether doctrine of laches applies — Claim for injunction dismissed
The first defendant trust acquired a site at Belvue Road, Northolt, Middlesex, from the local authority to develop as a community centre and mosque for which it had obtained planning permission; the second and third defendants are the trustees. The site cost £1,425,000 and the defendants commenced development shortly after permission was granted in November 1988. The plaintiff company, the owner of land in the same locality, sought to restrain the construction of the mosque on the grounds that it had the benefit of a restrictive covenant in a conveyance made on December 8 1937 that no building other than a factory, warehouse, workshop or office should be erected on any part of the burdened land; this included the defendants’ site.
Held The claim for an injunction was dismissed. The defendant’s planning application had been well known in the area since 1987 and long before the present proceedings were commenced. The plaintiffs delayed seven months after discovering the restrictive covenant and before filing the writ. The plaintiffs were barred by laches because of the delay of seven months; the defendants were allowed to believe that their land was free of restriction and had incurred by the date of the commencement of the proceedings substantial expenditure exceeding £2m.
However, section 127 of the Town and Country Planning Act 1971 [section 237 of the 1990 Act] did not apply to authorise the development and override the restrictive covenant, because looking at the reports to and resolutions of the local authority and their committees there had not been a conscious decision to appropriate the land to planning purposes and there was no clear reference to section 127.
Guy Roots QC and Nigel Davis (instructed by Simmons & Simmons) appeared for the plaintiffs; and Robert Carnwath QC and Edward Davidson (instructed by Bates Wells & Braithwaite) appeared for the defendants.
