Restrictive covenant — Restriction of use of land to agricultural purposes — Land subject to covenant used to provide accommodation for caravans or mobile homes occupied by gypsies — Interlocutory injunction sought by person entitled to benefit of covenant to restrain use in breach of it — Prospect of obtaining planning permission for the forbidden use followed by application to Lands Tribunal under section 84 of the Law of Property Act 1925 to discharge or modify restriction — Whether judge in exercise of his discretion should have granted the injunction or should have refused it in order to keep the gypsies and their families on the site pending the result of proceedings before the planning authority and the Lands Tribunal — Judge held to have been entitled to grant the injunction
at the centre of these proceedings restricted the use of the subject land to
agricultural purposes only and forbade the erection of residential buildings on
any part of it — The defendants (present appellants) were assignees of the
original covenantor’s land and thus bound by the covenant — The plaintiff
(present respondent) was entitled to the benefit of the covenant — The
defendants had placed on their land concrete slabs for the placement of
caravans or mobile homes belonging to gypsies; and gypsies and their families
were living in the accommodation thus provided — There was an established
breach of the covenant on which the plaintiff had the right to rely — The
county court judge had granted him an interlocutory injunction enforcing the
restriction until judgment or further order — The defendants appealed
point in the appeal was the possible effect on the exercise of the judge’s
discretion of the proceedings taken by the appellants with a view to obtaining planning
permission for the gypsies’ residential caravans and then, if such permission
was obtained, to apply to the Lands Tribunal under section 84 of the Law of
Property Act 1925 for the discharge or modification of the restrictive covenant
— The judge had said that if he granted the interlocutory injunction there
would be nothing to prevent the appellants from going forward with the planning
appeal and, if so advised, the application to the tribunal — The appellants
submitted that this was a misdirection — They argued that the judge should have
refused the injunction so as to keep the gypsies and their families on the site
for the hearing of the planning appeal — The appellants should be allowed to
present their case from the advantageous ground of present occupation
Appeal rejected this submission — It was the wrong approach — The judge was
entitled to take the view that the matter to be decided on planning
considerations was whether the land should or should not be used for the
residential accommodation of gypsies, not whether particular gypsy families who
happened to be there should be preserved from disturbance — The grant of the
injunction would not prevent the appellants from going through with the
planning appeal or the application to the tribunal, if so advised — The judge
had exercised his discretion correctly — Appeal dismissed
The following
case is referred to in this report.
Richardson
v Jackson [1954] 1 WLR 447; [1954] 1 All ER
437; (1954) 7 P&CR 345
This was an
appeal by the second, third and fourth defendants, Anthony Gaskin, Horace
Gaskin and Charles Randall, from the decision of Judge Mellor, at Norwich
County Court, granting the plaintiff, John Holdom, an interlocutory injunction
against the breach of a restrictive covenant affecting an area of land at
Attleborough, Norfolk. The first defendant in the action, Andrew Peter Kidd,
was not represented and took no part in the proceedings.
Barry Payton
(instructed by Cunningham John & Co, of Thetford, Norfolk) appeared on
behalf of the appellants; John Holt (instructed by Greenland Houchen, of
Attleborough, Norfolk) represented the respondent.
Giving
judgment, DILLON LJ said: This is an appeal by the second, third and
fourth defendants in this action against an order of Judge Mellor made in the
Norwich County Court on June 26 1990 whereby the judge granted the plaintiff,
Mr Holdom, an interlocutory injunction until judgment or further order,
enforcing against the second, third and fourth defendants a restrictive
covenant in a conveyance of certain land.
The conveyance
in question is dated March 27 1980 and was a conveyance by the plaintiff, Mr
Holdom, and his then wife (whose interest he has apparently acquired) to a Mr
Bartholomew (called the purchaser), who was the predecessor in title of the
second, third and fourth defendants. The covenant is in clause 3 of the
conveyance. The conveyance is of an area of land near Attleborough in Norfolk,
comprising 2 1/2 acres as delineated on a plan, and by clause 3 the then
purchaser, Mr Bartholomew, covenanted as follows:
3. For the
benefit and protection of the adjoining and neighbouring property retained by
the Vendors known as Potmere Cottages Hargham Road Attleborough aforesaid or
any part or parts thereof and so as to bind so far as may be the property
hereby conveyed into whosoever hands the same may come the Purchaser hereof
covenants with the Vendors that the purchaser and the persons deriving title
under him will at all times hereafter observe and perform the restrictions and
stipulations set out hereunder
(a) To use the land hereby conveyed for
agricultural purposes only such agricultural purposes to be defined as in
section 290(1) of the Town and Country Planning Act 1971 . . .
(b) Not to erect any residential building upon
the land hereby conveyed or any part thereof.
That
restrictive covenant was duly registered and it is not in doubt that it binds
the defendants as purchasers of part of the land conveyed. The words used were
effective to annexe the benefit of the covenant to the then vendor’s retained
land, known as Potmere Cottages, and every part thereof. Consequently it
matters not that part of the retained land had been sold off, because the
plaintiff retains a part, and in fact the part nearest to the land which the
second, third and fourth defendants have acquired. Therefore, we have a
position where the covenant binds these defendants and the plaintiff is
entitled to the benefit.
The defendants
have placed on their land concrete slabs for taking caravans or mobile homes
belonging to gypsies. Apparently there are approximately 10 plots and 17
caravans or mobile homes. The gypsies, though travellers and not always there,
do work on local farms when they are there and it is said therefore that if the
man of the family is working on a local farm, the land where the caravan is
situated is indeed being used for agricultural purposes within the meaning of
the covenant. That has not been pressed very hard in this court by Mr Payton.
It seems to me obvious that if you have a housing estate and one house is
occupied by an agricultural labourer who works on a nearby farm, another house
is occupied by a bank clerk and a third house is occupied by a railway porter
you cannot say that part of an estate is being used for agricultural purposes,
part for banking purposes and part for railway or transport purposes. I take
the position to be, therefore, that there is an established breach of the
covenant and that the plaintiff has the benefit and the right to enforce. It
was suggested that he might have lost the right to enforce because he has
allowed a friend to carry on activities on his land in the way of dismantling
vehicles or repairing vehicles, but I do not see that there is any arguable
basis that that amounts to a general relaxation or release of the covenant
which would authorise this quite different user of land subject to the
covenant, which is very close indeed to the vendor’s retained land.
The real point
in this case is that the defendants say, through Mr Payton, that they have made
an application for planning permission for use of the land for accommodating
gypsies’ caravans and if and when they get planning permission they will apply
to the Lands Tribunal under subsection (9) of section 84 of the Law of Property
Act 1925 to have the restrictive covenant wholly or partially modified or
discharged so as to permit continued user by the gypsies.
It is not in
doubt that the judge in such cases has a discretion to stay the enforcement of
a covenant pending application to the Lands Tribunal if it appears that an
application to the Lands Tribunal would have some chance of success. The notes
in Halsbury, to which we have been referred, cite the case of Richardson
v Jackson [1954] 1 WLR 447, in which a stay was granted. It is equally
not in doubt that there would be no purpose at all for these appellants to seek
to apply to the Lands Tribunal until they have got, if they can, planning
permission for the desired use of the land. The Lands Tribunal is required to
take account of the planning position in relation to the land, the subject of
any application, and would obviously refuse any modification of the covenant to
permit a user which was contrary to planning law.
At the time of
the hearing before the judge in the Norwich County Court the position was that
the application for planning permission by the defendants was pending before
the local planning authority. Since the judge’s order, the planning application
has been refused by the local planning authority, on July 3 1990, and an appeal
to the Secretary of State for the Environment against that refusal has been
lodged. We are told that a public inquiry before an inspector has been
appointed to commence on February 14 1991 and that the decision of the
Secretary of State may be expected within perhaps a minimum of six to eight
weeks after the inquiry has been concluded. There would then, of course, before
it was lawful to use the land for gypsies, have to be a successful application
to the Lands Tribunal.
The judge
dealt with this in his judgment in this way:
Thirdly . . .
Mr Payton asks me to bear in mind that an injunction is an equitable remedy and
it is in many ways the equivalent of a final judgment (although not necessarily
so). The argument is that the defendants are Romany gypsies. It is universally
known that they have very real difficulty in finding sites. They have been
given special favour in the planning system to find sites. They have made application
for planning permission. As of today it is possibly not entirely clear but
quite probably it appears that the local planning authority either have or are
just about to refuse their application. That, however, would not be the end of
the story because it is open to them to appeal and Mr Payton tells me they will
undoubtedly appeal . . . and it is anticipated there will be a public inquiry.
He suggested
that there should be evidence from a planning expert as to the likelihood of
success and the judge pointed out that that would not conclude the matter
because of the restrictive covenants. He went on:
It is said,
however, that if the planning appeal were resolved in their favour, they would
wish to apply to the Lands Tribunal under s84(5) of the Law of Property Act
1925 . . . to discharge or modify the covenant to accord with such planning
permission as may be granted.
The judge then
said:
It seems to
me to follow as a matter of principle that I must approach the case on the
basis that there is, at least, a prospect that if all the procedures were
followed there is a chance that planning permission would be granted and that
the restrictive covenant may be modified or discharged. If I were to make the
order sought, there is nothing to prevent the defendants from going through
with a planning appeal and if so advised going to the Lands Tribunal. I must
bear in mind that if I make the order, I do not deprive them of their further
rights in the land although in practical terms it would affect their homes and the
homes of their families.
The judge
recognised that the case was a difficult case in the sense that it involved
people who have their families on site, who have difficulties in finding
accommodation, and in the exercise of his discretion he decided to grant the
injunction.
Mr Payton says
that the judge has seriously misdirected himself in saying that if he makes the
injunction ‘there is nothing to prevent the defendants from going through with
the planning appeal and if so advised going to the Lands Tribunal’. He says
that that is an unrealistic view for the judge to take in that, if the
injunction is granted, there will be great difficulty in succeeding with the
planning appeal and, as I have already indicated, if they do not succeed on the
planning appeal there is no basis for going to the Lands Tribunal. So, says Mr
Payton, the judge has erred in principle and should have refused to grant any
injunction so as to keep the gypsies and their families on the site for the
hearing of the planning appeal and, if circumstances fit, the subsequent
application to the Lands Tribunal as persons in occupation whose occupation the
court has felt should not be disturbed. In other words, the judge should have
given the defendants that advantage, in effect presenting something which is
nearly a fait accompli to the Secretary of State and to the Lands
Tribunal that these people, although not lawfully there, should not be
disturbed.
That seems to
me a completely wrong approach in the context of this case. I think the judge was
fully entitled to recognise that granting the injunction and enforcing it does
not prevent the defendants from going through with the planning appeal and, if
so advised, going to the Lands Tribunal. They are fully entitled to say that
they had gypsies there. While the covenant stands they cannot have gypsies
there, but if planning permission is granted gypsies will be available to go
there and if planning permission is granted they will have a prospect of
success in having the covenant released. It seems to me that the judge was
entitled to take the view that the function of the minister on the planning
appeal was to decide, on planning considerations, whether this land should or
should not be usable for accommodating gypsies and not to consider, on considerations
of humanity, whether this land should or should not be used to accommodate
particular gypsy families who happen to be there now.
It follows, in
my view, that there is no basis for interfering with the judge’s exercise of
his discretion. Accordingly, I would dismiss this appeal.
RALPH
GIBSON LJ agreed and did not add anything.
The appeal
was dismissed with costs. Legal aid taxation was ordered.