Restrictive covenant — Use for private residence only — Whether construction of roadway to reach adjoining development a breach of covenant — Whether private residence meaning dwelling-house only or extending to curtilage — Appeal allowed
Two neighbouring properties, nos 28 and nos 30, each had the benefit and the burden of a restrictive covenant, expressed “to bind… the land hereby conveyed” under a 1964 conveyance. The appellants owned no 30, while the respondent had contracted to purchase no 28. The respondent planned to demolish and replace the house then standing on the site, and to construct a roadway that would lead to an intended development of eight detached and two semi-detached houses on adjoining land. The appellants maintained that this would breach the restrictive covenant.
Clause 2(a) of the covenant prohibited the use of the land conveyed “for the erection of more than one two-storey private dwelling house…”. Clause 2(b) further provided that the purchaser should not “use or permit or suffer to be used the land hereby conveyed or any part thereof or any building or erection now or at any time erected thereon for any trade business or manufacture but will use the same as a private residence only”.
In proceedings to enforce the covenant, the appellants contended, inter alia, that the planned development of no 28 would result in its being used not only as a private residence but also as a roadway, in contravention of clause 2(b). Ruling against the appellants, the judge held that only a building could be used as “a private residence”. He found that the words “the same” in the second part of clause 2(b) referred to “any building”, and did not limit the use of the rest of the land. The appellants appealed.
Held: The appeal was allowed.
The natural effect of the words “the same” in the second part of clause 2(b) referred to the composite noun “the land hereby conveyed or any part thereof or any building or erection now or at any time erected thereon”. To limit the meaning of “a private residence” in this context to the dwelling-house itself would be contrary to the intention of the parties to the 1964 conveyance. They had distinguished between a “private dwelling-house”, which was normally a single building where most domestic activities would take place, and “a private residence”, which was intended to extend also to all ancillary residential activities that might reasonably take place in the curtilage of a private dwelling-house, whether on land, or in buildings or other structures. The use of the roadway would be a breach of clause 2(b).
It made no difference that the roadway would be used not by the respondent, but instead by the occupiers of, and visitors to, the new houses on the adjoining site. Since the covenants in clause 2 were intended “to bind” no 28, that indicated that no part of the property was to be used for a purpose outwith clause 2(b). That prohibition extended to those deriving title under the original purchaser, including those who had been granted a right of way over part of no 28: Elliott v Safeway Stores plc [1995] 1 WLR 1396 and Co-operative Retail Services Ltd v Tesco Stores Ltd [1998] EGCS 5 distinguished.
Timothy Harry (instructed by Reynolds Parry-Jones Crawford, of High Wycombe) appeared for the appellants; Jonathan Brock QC (instructed by Perrins, of Luton) appeared for the respondent.
Sally Dobson, barrister
