Restrictive covenant–No building other than private dwelling-house of a certain annual value–Proposal to enclose existing swimming pool in ground of private dwelling-house–Injunction sought by neighbour–Whether ‘building scheme’ in force–Whether proposed enclosure a breach of covenant–Object of covenant to prevent erection of factory or possibly a block of flats–Injunction refused
This was a
claim by Richard Harlow, owner of 21 Sibsey Road, Boston, Lincolnshire, for an
injunction to prevent the erection of a building to cover in an existing
swimming pool at adjoining premises, 23 Sibsey Road, owned by William Hartog.
The plaintiff relied on a covenant which provided that ‘No building other than
private dwelling-houses shall be erected on the said land and each of such
dwelling-houses shall be of an annual value not less than thirty-five pounds.’
Patrick Ground
(instructed by Collyer-Bristow & Co, agents for Roythorne & Co, of
Boston) appeared for the plaintiff; G H Newsom QC and Robert Wakefield
(instructed by Thompson Quarrell, agents for Frost, Gunning & Co, of
Boston) represented the defendant.
Giving
judgment, SIR DOUGLAS FRANK QC said that the plaintiff sought an injunction
restraining the defendant from constructing a building to enclose an existing
swimming pool. The issues were (1) whether there was in force a building scheme
so as to enable the plaintiff to enforce certain restrictive covenants and (2)
if so, whether the proposed building was a building other than a private
dwelling-house.
The land on
which the plaintiff’s and defendant’s houses were built was part of about seven
acres of undeveloped land that was sold off in plots to six different purchaers
in 1927. Planning permission was granted to the defendant, who bought his home
in 1976, for the pool to be covered, but the plaintiff objected because of its
proximity to his own house and the effect it would have on his outlook. On
March 22 1977 he was granted an ex parte injunction and on March 31 the
plaintiff gave undertakings as to damages and the defendant undertook not to
continue to construct the building until trial of the action.
On behalf of
the plaintiff it was submitted that the essentials of a building scheme as
expressed in Elliston v Reacher [1908] 2 Ch 374 and set out in Halsbury’s
Laws, 4th ed, vol 16 para 1355 were satisfied because: (1) there was a
common vendor; (2) there was a defined area with lots as shown on the
defendant’s conveyance; (3) that as a matter of inference the purchasers of
each of the plots were intended to benefit
purchasers bought from the common vendor on the footing that the restrictions
imposed on the land purchased by them were to enure for the benefit of the
other lots. He referred to Bell v Norman C Ashton Ltd (1956) 7 P
& CR 359, Baxter v Four Oaks Properties Ltd [1965] Ch 816, Brunner
v Greenslade [1971] Ch 993, Texaco Antilles Ltd v Kernochan
[1973] AC 609, Lund v Taylor (1973) 31 P & CR 167 and Nottingham
Patent Brick & Tile Co v Butler (1885) 15 QBD 261.
The defendant
contended that if there was a building scheme here it could only be an implied
scheme and would have to satisfy the four tests referred to by Mr Ground for
the plaintiff. He further submitted that only the first ground was met, namely
that there was a common vendor. It was common ground that if the plaintiff was
to succeed he had to show that at least there was an estate plan defining the
area within which the scheme was to be operative. He (His Lordship) found no
evidence that there was an estate plan, and still less that it was brought to
the attention of any of the purchasers. The plan in the 1927 conveyance defined
only the land being conveyed and showed an adjoining rectangle of similar size
which, it stated, was contracted to be sold. The plan fell a long way short of
being a plan of a defined area of a building estate.
On the
question of breach of covenant he (his Lordship) thought that it was a matter
of fact and degree whether a building was other than a private dwelling-house.
It was beyond question that the erection of a building for recreational
purposes or otherwise, used ancillary to a house such as a greenhouse, would
not be in breach of the covenant unless it could be said that looking at the
hereditament as a whole the offending building was not ancillary or incidental
to the dwelling-house, but a separate building used independently. The swimming
pool in question was a somewhat large one for a private dwelling, but there
could be no question but that its use was part of the enjoyment of the
dwelling-house, and it followed that the fact that it was to be enclosed would
not alter that status. His Lordship thought that the purpose of the covenant on
the land was to prevent the erection of, say, a factory on the land or possibly
a block of flats.
Judgment was
entered for the defendant.
