Neighbouring properties — Extension — Respondents having benefit of covenant preventing appellants from building extension without their written permission — Appellants constructing extension without permission — Respondents’ delay in seeking interim injunction — Whether respondents entitled to final injunction for removal of extension — Appeal dismissed
The appellants and respondents occupied neighbouring properties. The respondents had the benefit of a covenant that prevented the appellants from constructing any extension to their property without the respondents’ written permission, which was not to be unreasonably withheld.
The appellants informed the respondents of their intention to build a single-storey extension. The respondents refused their consent on the ground that the extension could be detrimental in terms of light reduction, the loss of winter sun and the loss of a view. However, the appellants subsequently sought and obtained planning permission from the local planning authority notwithstanding their neighbours’ objections.
The appellants began work on their extension in June 2003. The respondents were aware that the works had started, but failed to apply for an interim injunction preventing the further work until two months later when a substantial part of the work had been completed. The county court refused the grant of the injunction on the basis that the respondents could be compensated in damages.
The dispute proceeded to a full trial. The judge found that the respondents’ refusal to give their consent was not unreasonable in the light of the reasons that they had advanced. Moreover, damages would not adequately compensate them for the loss of the benefit of the covenant. The only just and proper remedy would be the removal of the extension and the return of the appellants’ property to its former state. The judge therefore awarded a mandatory injunction in those terms. The appellants appealed, contending that the judge should have refused a final injunction on the ground of the respondents’ delay in seeking an interim injunction. They argued that a person who, with knowledge of his enforceable right, stood by while a permanent structure was being unlawfully erected was not entitled to an injunction to have it removed.
Held: The appeal was dismissed.
The granting of an injunction was a discretionary remedy and, in the circumstances of this case, there could be no justification for interfering with the judge’s exercise of his discretion.
It was doubtful whether it was appropriate to say that a person who did not proceed to apply for an interim injunction, but who had made it clear that he intended to object to any breach of a restrictive covenant and to bring proceedings in respect of that breach, should generally be debarred from claiming a mandatory injunction. It could, in many circumstances, be reasonable for a claimant to put a defendant on notice that he intended to proceed to trial rather than to seek an interim injunction, and the court had to be prepared to adapt to the particular facts of each case.
The respondents had been slow to seek an interim injunction, but that was only one factor to be taken into account by the court when deciding whether to grant a final mandatory injunction. The judge had given careful consideration to the question of whether damages constituted an appropriate remedy, and he had been entitled to conclude that they did not. The considerations applicable to an interim injunction were quite different to a final injunction. It could not be said that the respondents’ conduct was unconscionable: Gafford v Graham [1999] 3 EGLR 75 distinguished.
Ian Pennock (instructed by Appleby, Hope & Co, of Sunderland) appeared for the appellants; Richard Merritt (instructed by Higgotts, of Billingham) appeared for the respondents.
Eileen O’Grady, barrister
