Restrictive covenant — Use of land limited for agricultural purposes — Romany travellers with caravans — Travellers seeking planning permission — Appeal against refusal pending — Injunction to restrain breach of covenant — Whether prospect of planning permission and prospective application to discharge or modify covenant relevant in granting interlocutory injunction — Appeal by defendants dismissed
The plaintiff is the owner of land at Potmere Cottages, Hargham, Attleborough, Norfolk. By a conveyance in March 1980 the plaintiff has the benefit of a restrictive covenant over adjoining land now owned by some seven different plot owners, including the second to fourth defendants. On their properties, divided into 10 plots, stand 17 caravans or mobile homes. The covenant restricts the use of the land for agricultural purposes only as defined in section 290(1) of the Town and Country Planning Act 1971 [section 262 of the 1990 Act]. The plaintiff’s application for an interlocutory injunction to restrain the defendants from using the land for residential purposes was granted by His Honour Judge Mellor at the Norwich County Court (June 26 1990). The defendants appealed.
Held The appeal was dismissed.
The prospect of the defendants obtaining planning permission on appeal to use the land for the siting of caravans for residential purposes and of them making an application to the Lands Tribunal under section 84 of the Law of Property Act 1925 to revoke or modify the covenant had been considered by the trial judge. Even a successful appeal against the refusal of planning permission would not conclude matters as there would remain the restrictive covenant. The defendants were not at the position where they could apply to the tribunal and therefore were not entitled to stay of the proceedings under section 84(9) of the 1925 Act. The judge had also considered the hardship of granting the injunction to the defendants and the difficulties that the travellers faced. However, the discretion had been properly exercised and the trial judge was entitled to conclude that the courts should not assist the defendants to pre-empt the law.
Barry Payton (instructed by Cunningham John & Co, of Thetford) appeared for the appellants; and John Holt (instructed by Greenland Houchen, of Attleborough) appeared for the respondent.
