A long-lost restrictive covenant is threatening Persimmon Homes’ plans for a plot of land near Cardiff.
Persimmon wants to build a pumping station near Pencoed House Estate. The pumping station will serve a major new housing development that Persimmon wants to build nearby.
But its neighbours, who run a wedding venue, Country Weddings (Cardiff), on the estate are seeking to block Persimmon’s plans by citing a restrictive covenant put in place in 1983, stating that no buildings can be build on the site without “prior consent from the vendor”.
And the vendor from 1983 is now dead.
This knotty legal problem has unsurprisingly resulted in litigation, with Persimmon asking a High Court judge for summary judgment striking out Country Weddings’ case.
At a hearing held in Bristol last week, Judge Paul Matthews, sitting as a High Court judge, was told that the actual restrictive covenant is currently lost.
“The restrictive covenant with which this case is concerned was included in a conveyance dated 8 November 1983 between Kenneth Johns as vendor and Eileen Edwards as purchaser,” he said in his ruling, handed down this week.
“Unusually, and most unfortunately, no copy of this conveyance has so far come to light. The parties have to date therefore relied on the version of the covenant itself reproduced in the charges section of the land register for the claimant’s land.”
And even if the document were to be found, lawyers for Persimmon say that Country Weddings can’t enforce it.
“The claimant challenges the defendant’s ability to enforce the covenant against building on the property without consent,” the judge said in his ruling.
“It says, first, that the defendant has not proved that the land it now owns and occupies (Pencoed House) is part of the land intended to be benefited by the covenant (stated to be Pencoed Farm).
“Secondly, it says that because Kenneth Johns has died, and it is no longer possible to obtain his consent, the covenant no longer has any effect in law.
“Thirdly, it says, without prejudice to its earlier contentions, that if the defendant is entitled to enforce the covenant it has asked the defendant for consent, but this has been unreasonably withheld.”
The case, the judge said, is one of construction. For example, does “the vendor” refer only to Johns, who is dead, or his successors?
Even so, “this is not a trial of the claim. It is an application for summary judgment,” he said.
However, because of the lack of information, the judge said that he cannot strike out the claim, and therefore it can proceed to a full trial.
“Overall, I am simply not satisfied that I have all the information which I will need in order to construe this covenant in its context,” he said.
“I do not have the conveyance itself, and I have virtually no information about the factual matrix in which it was entered into. At least some of this information, as well as possibly a copy of the conveyance, or even just a draft, may become available by the time the matter goes to trial.”
He said he could dismiss the claim only “if the court is satisfied that it has all the information which it needs and that it will be in as good a position as the trial judge would be in due course.
“For the reasons which I have given above, I am not so satisfied, and accordingly dismiss this application.”
Persimmon Homes Ltd v Country Weddings (Cardiff) Ltd
Business and Property Courts in Bristol (HHJ Paul Matthews) 18 February 2020
Edwin Johnson QC (instructed by Walker Morris LLP) for the Claimant Benjamin Faulkner (instructed by Burges Salmon LLP) for the Defendant
