Restrictive covenant — Prohibition on use as cinema or for principal purpose of image projection for the showing of whole films — Whether second limb also encompassing use as cinema — Whether covenant breached by uses of burdened land that were ancillary to cinema use on adjoining land — Claim dismissed
The claimant owned property that included the site of a disused cinema. Part of the land, equating roughly to the former cinema site, was burdened with restrictive covenants that bound the claimant and benefited the first and second defendants. The covenants prohibited use of the burdened land “12.2.1 as a cinema or 12.2.2 for the principal purpose of use for image projection for the showing of whole films in an auditorium setting”. The third defendant council, had, as part of their local plan, commissioned a development scheme that provided for the creation of a multi-screen cinema. Although the cinema was to be located on a part of the property lying outside the burdened land, access to it and services for it would be enjoyed over the burdened land, which would also be used for signage and cinema advertising.
In the course of the planning process, an issue arose as to whether the intended use of the burdened land would amount to a breach of the restrictive covenants. That issue was referred to the court for determination. The claimant accepted that the intended use of the burdened land was not that of a cinema, and, as such, was not contrary to clause 12.2.1 of the covenants. However, it contended that: (i) the use of the remainder of the land as a cinema would be for the principal purpose of use for image projection for the showing of whole films in an auditorium setting; and (ii) the proposed use of the burdened land would be a use associated, ancillary or similar to such use, and would therefore contravene clause 12.2.2.
Held: The claim was dismissed.
Clause 12.2.2 referred to a use of the land as something other than as a cinema. If this was not the intended meaning, the structure of clause 12.2 made little sense. The claimant’s argument made clause 12.2.1 wholly redundant, and, although this was not determinative, it was a consideration. A construction giving the clause some independent meaning did not produce an irrational result or one that was lacking in sensible commercial effect. The proposed use of the burdened land would be ancillary to the use of the remainder of the land. It was agreed that the use of the remainder of the land would be use as a cinema. There would not be a use falling within the meaning of clause 12.2.2.
Paul Morgan QC and Wayne Clark (instructed by Cripps Harries Hall) appeared for the claimant; Edward Cole (instructed by Jeffrey Green Russell) appeared for the first and second defendants; Peter Crampton QC and Alastair Craig (instructed by the solicitor to Tonbridge Wells Borough Council) appeared for the third defendants.
Sally Dobson, barrister
