Johnson and others v Whipp and others

Restrictive covenants – Object of covenants – Preservation of character of neighbourhood – Claimants seeking declaration that development of defendants’ land would breach restrictive covenants – Whether claimants entitled to enforce covenants – Whether change in character of neighbourhood rendering object of covenants impossible to achieve The various claimants and defendants were the respective owners of several plots of land, each consisting of a house and a garden, in a cul-de-sac on land formerly owned by the Metropolitan Railway Co (Metro). The conveyances by Metro to the defendants’ predecessors in title each contained restrictive covenants, for the benefit of Metro’s retained land, prohibiting the construction of more than one dwelling per plot, or the use of any portion of the plot as a road without the vendor’s prior written consent. At the date of those conveyances, Metro had not yet disposed of the claimants’ land. The covenants were registered as Class D(ii) land charges. Over the years, numerous applications were made to construct new houses and access roads in the gardens of the defendants’ properties, all of which were refused. Concerned that future attempts might succeed, the claimants brought proceedings under section 84(2) of the Law of Property Act 1925 for a declaration that: (i) the claimants were entitled to the benefit of the restrictive covenants against the defendants by virtue of section 78 of the 1925 Act, which provided that the benefit of such covenants would run with the land; (ii) development of the kind contemplated would be a breach of covenant; and (iii) no past breaches of covenant barred the obtaining of injunctive relief in relation to the defendants’ land. Although the first four defendants did not oppose the application, the fifth defendant contended that building that had already taken place on the land had changed the character of the neighbourhood to the extent that the covenants imposed to preserve its original character were now obsolete. In support of that, it drew attention to a development in an area of the estate well to the north of the cul-de-sac. Held: The claim was allowed. 1. The purpose of the covenants was obvious, namely that each property should have the benefit and burden of restrictive covenants protecting the character of the estate laid out by Metro. Those covenants were annexed to, and ran with, each of the properties, so that the claimants had the right, under section 78 of the Law of Property Act 1925, to enforce them against the defendants. In deciding whether that right had been lost, as a result of a change in the character of the neighbourhood that rendered the covenants obsolete, it was necessary to determine the extent of the “neighbourhood” in question. 2. Applying a common sense approach, the “neighbourhood” in the instant case was the cul-de-sac itself, since it had sufficient natural boundaries separating it from the rest of the estate: see Robbins v Barclay Homes (Kent) Ltd unreported 25 April 1996. The development described by the fifth defendant had taken place well outside that neighbourhood. There had, so far, been no breach of covenant in respect of any of the plots within the neighbourhood, all of which still consisted of a single dwelling and garden, despite attempts to obtain permission for further development. It followed that there had been no change in the character of the neighbourhood, and the object of preserving it remained capable of achievement. 3. Although it was rare to grant a declaration in negative terms, namely that the claimants were not barred from seeking injunctive relief, in circumstances where such relief was sought, there was some utility in doing so: Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749 considered. The threat of development remained, and such a declaration would remove damaging uncertainty as to whether this was permissible. Since the declaration was limited to the defendants’ land, it would not inhibit dealings with property elsewhere on the estate. It was also relevant that the defendants did not oppose the application, and that the claimants were prepared to bear the costs of the proceedings. Andrew Francis (instructed by Dawson & Co) appeared for the claimants; the defendants did not appear and were not represented. Sally Dobson, barrister