Old restrictive covenants — Defendant householder resisting development on ground that no more than one house could be built on each plot — Defendant further contending absolute restriction on building due to impossibility of obtaining approval of party named in covenant — Claimant developer contending that building restriction discharged on breakdown of machinery for approval — Claimant succeeding on latter issue
The claimant developer and the defendant householder derived title to their respective properties from a series of conveyances made in and before 1936, whereby a company sold off various parts of an estate as residential building plots. The parties’ predecessors had covenanted, as purchasers, that the premises would not be used “for any purpose other than those of or in connection with a private dwelling house or for professional purposes” (the user covenant), and that no building should be erected on the land conveyed “unless the plans drawings and elevation thereof shall have been previously submitted to and approved of by the Company [such approval not to be unreasonably withheld]” (the building covenant). The company was dissolved soon after disposing of the entire estate. The claimant, having encountered opposition from the defendant to its plans for redeveloping some of the plots, sought declarations to the effect that: (i) on a true construction of the user covenant, it was free to construct more than one house on each of the plots; and (ii) the building covenant had been discharged upon the dissolution of the company. On the second issue, the defendant argued that the dissolution had operated to convert the building covenant into an absolute restriction on building.
Held: The claim was allowed in part.
The first declaration was refused and the second granted. As a matter of ordinary language, the indefinite article “a” tended to carry the concept of singularity. That concept was, if anything, reinforced by the inclusion of “professional purposes”, which, in a residential context, must have contemplated a doctor or other professional operating from home. At a time when no planning control was in force, it was inherently more likely that the parties had intended to limit the density of the development to one dwelling-house per plot. The defendant was supported by the observations of the Court of Appeal in Dobbs v Linford [1953] 1 QB 48. Being satisfied that the covenant was in terms of a single dwelling-house, the court was not constrained to hold otherwise by the provision, in section 61 of the Law of Property Act 1925, that in all deeds, unless the context otherwise required, the singular included the plural (and vice versa): see the observations of Russell LJ in Re Solicitors’ Arbitration [1962] 1 WLR 353 at p356.
Prima facie, the defendant’s construction of the building covenant gave effect to its strictly literal meaning, in that the exception made to an otherwise unqualified restriction had fallen away with the dissolution of the company. Such a construction was consistent with Bell v Norman C Ashton Ltd (1956) 7 P&CR 359, Re Beechwood Homes Ltd’s Application [1994] 2 EGLR 178 and Briggs v McCusker [1996] 2 EGLR 197. However, it seemed perverse to attribute to the original parties an intention that, if the company that had to approve the plans ceased to exist, then that covenant could prevent any development at all, particularly where such approval could not be unreasonably withheld. On the facts of the present case, the court was not prevented from implying a term to the effect that the covenant would be discharged upon the cessation of the company. Alternatively, it was open to the court to find that the exception was so fundamental to the prohibition that the prohibition fell with the exception. The claimant was entitled to succeed on either basis. The suggested implied term satisfied the tests approved by Sir Thomas Bingham MR in Philips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472 and by Lord Wilberforce in Liverpool City Council v Irwin [1976] 1 EGLR 53.
Vivian Chapman (instructed by Davies Arnold Cooper) appeared for the claimant; Kim Lewison QC (instructed by Mundays, of Cobham) appeared for the defendant.
Alan Cooklin, barrister
