Restrictive covenant — Covenant against any trade or pursuit which could be a nuisance, annoyance or danger to neighbouring property — Whether use of property for housing schizophrenics in quiescent stage breach of covenant
On March 25
1991 the plaintiff, a registered charity working for the welfare of people with
schizophrenia and allied disorders, purchased a property which had previously
been administered by the local health authority on behalf of the Secretary of
State for Health. The Secretary of State had acquired the property by a
conveyance dated March 11 1983 from the first defendant. By clause 2 of, and
the third schedule to, the conveyance the purchaser covenanted that no ‘noisy
offensive or dangerous trade or pursuit shall be carried on on the property
hereby conveyed nor any trade or pursuit which may be or become in any way a
nuisance annoyance or danger to the vendor or its successors in title or to the
owners or occupiers of any neighbouring property which may tend to depreciate
the value of the property’. The plaintiff’s proposals for the property was to
convert it to provide living accommodation for 12 persons who had in the past
suffered from severe mental illness, but whose condition had stabilised on
medication. The plaintiff sought a declaration that these proposals would not
involve a breach of the restrictive covenant. The defendants, who were
principally adjoining owners, did not, in the end, oppose the relief sought.
danger to the defendants within the meaning of the covenant: there being no
evidence of a reasonable apprehension of risk of injury. The words of the
covenant were not wide enough to restrict or control the owners of the property
as to the identity or personal characteristics of the individuals they chose to
permit to occupy it.
The following
cases are referred to in this report.
C&G
Homes Ltd v Secretary of State for Health
[1991] Ch 365; [1991] 2 WLR 715; [1991] 2 All ER 841; (1990) 62 P&CR 69;
[1991] 1 EGLR 188; [1991] 06 EG 70, CA
Tod-Heatley v Benham (1888) 40 ChD 80
This was the
hearing of an originating summons issued by the plaintiff, National
Schizophrenic Fellowship, against nine defendants seeking a declaration as to
the meaning of a covenant in a conveyance dated March 11 1983 by which the
first defendant, Ribble Estates SA, sold 73 Scarisbrick New Road, Southport,
Merseyside, to the Secretary of State for Health.
David Van Hee
(instructed by Lawrence Graham) appeared for the plaintiff; the defendants did
not appear and were not represented.
Giving
judgment, MR J SHER QC said: This is an originating summons taken out by
National Schizophrenia Fellowship, a registered charity working for the welfare
of people with schizophrenia and allied disorders. As part of its work the
fellowship plans to provide housing for persons who have been receiving
in-patient treatment in national health service mental hospitals for
schizophrenia and who are ready to be discharged back into the community, but
who need a period of accommodation in stable surroundings because they do not
have homes and families of their own to which to return or are not yet ready to
live independently on their own. The need for such accommodation in the
Southport and Hornby area will be greatly increased in the near future by the
imminent closure of Greaves Hall Hospital, a national health mental hospital in
Southport.
On March 25
1991 the fellowship completed the purchase of a property known as 73
Scarisbrick New Road, Southport, Merseyside, a property that had been
administered by the local health authority on behalf of the Secretary of State
for Health. I shall refer to it throughout this judgment as ‘the property’.
The freehold
in the property had been acquired by the Secretary of State for Social Services
by a conveyance dated March 11 1983 from the first defendant company, Ribble
Estates SA, a Panamanian company. By clause 2 of that conveyance the Secretary
of State covenanted as follows:
The purchaser
for the benefit and protection of the remainder of the land belonging to the
vendor of which the property hereby conveyed forms part or any part thereof and
so as to bind the said property into whosesoever hands the same may come hereby
covenants with the vendor that the purchaser and the persons deriving title
under him will at all times hereafter observe and perform the restrictions and
stipulations set out in the Third Schedule hereto.
The third
schedule reads as follows:
No noisy
offensive or dangerous trade or pursuit shall be carried on on the property
hereby conveyed nor any trade or pursuit which may be or become in any way a
nuisance annoyance or danger to the vendor or its successors in title or to the
owners or occupiers of any neighbouring property which may tend to depreciate
the value of the property.
The
originating summons asks for a declaration that the fellowship’s proposed user
of the property will not infringe this restrictive covenant. As it was thought
by the fellowship that the first defendant company might still own land in the
vicinity of the property capable of benefiting from the restrictions on the
property, that company was joined as a defendant to the summons. Also joined
were defendants two to nine, all but two of whom (those being seven and eight)
are owners of properties which were on March 11 1983 undoubtedly part of the
retained land vested in the first defendant for the benefit of which the
covenant was taken.
Those
defendants all own houses near the property. The nearest is Kathleen Marland
Leach, defendant three, at 1a Balfour Road immediately next door to the
property (which occupies a corner plot between Scarisbrick New Road and Balfour
Road). Defendants eight, seven, five and four are further up Balfour Road. The
second defendant and defendants six and nine are much further away from the
property. Defendants three, four and five have not acknowledged service and
have played no part in the proceedings. Defendants one, seven and eight did
acknowledge service, but have taken no further part, although some of the
evidence put in on behalf defendants two, six and nine was said to be put in on
behalf of defendants seven and eight as well.
The most
active defendants were the remaining ones, namely defendants two, six and nine,
who put up a vigorous fight in affidavit evidence and exhibits running in all
to some 194 pages, but who have not appeared before me either by counsel or in
person. Their solicitors have written to the court explaining that the day
before the hearing was due to commence the legal aid board in Liverpool
discharged their clients’ legal aid certificates and they were not proposing to
attend the hearing.
All the
defendants have written saying that they now do not resist the relief asked for
in the summons provided that no order for costs is made against them in these
proceedings. Mr David Van Hee, counsel for the fellowship, has confirmed that
no such order will be asked for by the fellowship. In the event I have had no
one from the defendants’ side to put the case against Mr Van Hee’s arguments
for the fellowship, but as the court’s ruling on the construction of the
covenant is still required I have had to look at the matter critically and do
the best I can under the circumstances.
I return to
the fellowship’s proposals for the property. The property is in the course of
being converted so as to provide living accommodation for 12 people, who have
in the past suffered from severe mental illness, but whose condition has been
stabilised on medication and who are ready to be discharged back into the
community.
These 12
residents will be chosen from a particular group of patients now in a
rehabilitation ward, known as Patterson Unit, Hescott Centre, which provides 25
in-patient beds for patients, many of whom are ready to be discharged back into
the community. The fellowship’s proposals are supported by the district health
authority, which will take a major part in selecting the residents. There will
be a selection panel, which will include members of the staff of the Patterson
Unit and members of the management staff of the health authority.
In order to
provide individual care and support for the residents and to comply with the
wishes of the social services department of the local authority, the staff will
consist of one project manager, one senior care manager, two senior care
officers, four care assistants, an administration officer, two part-time cooks
and domestic staff plus two waking night staff. This will mean that at all
times there will be a senior member of staff available on the premises.
It is intended
that the staff who will be recruited will include present members of the staff
of Greaves Hall Hospital and Patterson Unit, from which the residents will have
come. Medical attendance will be available from a general practitioner,
sympathetic to the fellowship’s work, whose surgery is opposite the property.
When the
originating summons was issued the fellowship’s plans were to include
facilities in the property for training the residents and non-resident daytime
trainees as receptionists, waiters, waitresses, chambermaids, chefs etc along
with re-establishing the ordinary skills of daily living.
Following
anxiety expressed on behalf of some of the defendants these proposals have been
abandoned. The current proposals are simply to provide a home for 12 patients
with the necessary support staff and the declaration sought in the summons is
to be amended accordingly.
Those defendants
who have put in affidavit evidence have expressed their concern and anxiety
about the fellowship’s proposals and have forcefully objected to those
proposals. I can summarise their concerns under a few general heads.
First, they
are concerned about the impact on the value of their houses. It is interesting
that this concern is a common and consistent feature of complaint and I have
little doubt that it was a major, perhaps the major, motivation for defending
these proceedings. Whether the implementation of the fellowship’s plans for the
property will have this effect of reducing property values is, of course,
another matter. There is much surmise in this regard by non-expert witnesses on
both sides, but not one scrap of admissible evidence on which I can reasonably
make a finding.
If the point
is of importance it will have, in my judgment, to be resolved against the party
who had the onus of proof, ie in my judgment, the fellowship, which has come to
this court asserting that their proposals will not infringe the covenant.
I should add
here that, although there is considerable difficulty in identifying the
property meant by the last two words of the covenant, the common sense of the
covenant is that it must refer to the retained land of the vendor for the benefit
of which the covenant was taken or, at least, the neighbouring property
referred to in those specific terms in the covenant. In my view, it does not,
despite the valiant efforts of Mr Van Hee, refer to the property itself.
In the event,
as will be seen, the issue as to whether the implementation of the fellowship’s
proposals will tend to depreciate surrounding property values does not have to
be decided because the requirement in the covenant to this effect is additional
to and separate from the requirement that the activity should cause annoyance.
As I have decided that that activity will not cause annoyance within the
meaning of the covenant the fellowship will succeed despite the failure to show
that property values will not be adversely affected.
The second
broad head of complaint is the fact that there appears to be a discrepancy
between the fellowship’s proposals as contained in early documentation prepared
long before these proceedings had started and the proposals as formulated in
the evidence of Mr Alan Bolton, national development officer of the plaintiff,
filed in support of the originating summons. There is, however, nothing
sinister in that. The fellowship’s proposals have undergone several changes
over time and discrepancies are simply attributable to such changes from time
to time. Indeed, as I have indicated, there have been further significant
changes in those proposals during the course of these proceedings themselves. I
need say nothing more about this head of complaint.
The defendants
exhibit a concern about the training facilities, in particular, in respect of
non-residents who would be attending at the property during the day time. Those
aspects of the proposals have been abandoned and I need say no more about this
concern.
That leaves
the last head of complaint and that is the defendants’ concern for the general
safety of their children: see, for example, Mrs Maxine Diane Sullivan’s
affidavit of June 9 1992 filed in support of the cases of the defendants two,
six, seven and eight in which she says at para 3 and 4:
3. I have
genuine fears for the safety of my children . . . in particular in view of the
day care facility and the outpatients who will be coming and going at all
times.
4. My fears
are based upon personal knowledge obtained whilst working at Greaves Hall
Hospital, Southport from 1980 until 1985 as a nursing assistant. My first year
at the hospital was working with mentally handicapped patients and
schizophrenics and I also worked for two years with other psychiatric patients.
I confirm that I also had contact with outpatient schizophrenics at the day
unit and on the psychiatric unit when I was employed on night shifts. I am
concerned with regard to the security arrangements for the residents and also
for the day centre attendants. I am aware from my own experience that such
patients are susceptible for example to taunts from children and other people
who will be aware of them attending the unit and they therefore may act
aggressively. I am also aware of the fact that such a facility will affect the
value of the property in the immediate area of 73 Scarisbrick New Road.
5. The
property 3 Balfour Road [which is her property] is a family residence and any
prospective purchaser with young children will, no doubt, be deterred by the
presence of such an establishment as is proposed at 73 Scarisbrick New Road.
I pause to
notice that Mrs Sullivan’s concern is largely associated with the day care
facility which, of course, has now been abandoned. She does, however, include
in her expression of anxiety the residents themselves and says that they are
susceptible to taunts from children and that they therefore may react
aggressively.
Mr Blewitt is
another witness who filed an affidavit in support of the defendants’ case. He
said in para 4 of his affidavit:
I am
particularly concerned for my wife and my 12-year-old son. I have had first
hand experience of people suffering with mental instability in my employment as
a police officer. For that reason I would submit that my fears are genuine and
well-founded. I cannot preclude the possibility that something may happen to my
wife or my son particularly in view of the day centre facility and the
attendants who will be using such a facility.
Two points
need to be made as to this. First, Mr Blewitt’s experience as a police officer
has been with mental instability on occasion no doubt in an acute phase of
mental illness. I am, however, concerned in this case with a much more specific
type of mental illness, namely schizophrenia and, more important, with such
illness in a quiescent stage when the patient has been fully treated and
stabilised and is ready to go back into the community.
The other
point I should make about Mr Blewitt’s evidence is that the day centre facility
has been abandoned, so that particular anxiety of his has been allayed.
Josephine
Barnes, the second defendant, expressed concern in a letter written to Mr
Bolton on November 10 1990. She said:
I have first
hand knowledge of schizophrenic behaviour. From past experience in my own
family I know how unstable and dangerously violent schizophrenic people can be.
For this reason and because my family includes two young children it is my
intention to take legal action to oppose the proposed use of no 73 Scarisbrick
New Road.
I am not
unmindful of the problems and current needs of this group of people, but to
place them in circumstances which expose them to their own personality
inadequacies and may lead to (and have in other places) terrible incidents
which criminilise them is, I feel, both lacking in wisdom and true long term
concern.
Again, her
concern relates to patients in the acute face of the illness, which is not what
this case is about.
Another
witness, Maureen Llewellyn, had this to say:
9. During the
course of acting on behalf of the Scarisbrick New Road and Balfour Road
Residents’ Association, I have amassed a file of newspaper reports which,
sadly, recount tragic incidents, sometimes fatal, involving schizophrenic
sufferers and their families. While I have to accept that the reporting of such
cases by the national media tend to be melodramatic, I have to say that these
incidents have enforced my own personal fears of problems arising not only with
residential patients but, in particular, with those outpatients who would be
attending 73 Scarisbrick New Road and the day centre facilities which would be
available.
Again a
witness who refers to the disease in its acute phase and who refers, in
particular, to concern about the visit to the property daily of outpatients, a
feature of the proposals which has now been abandoned.
All the
defendants who put forward evidence draw attention to a pamphlet called Schizophrenia
Notes for Relatives and Friends written by, among others, Julian Leff,
assistant director, Medical Research Council, Social Psychiatry Unit in London.
These notes were an attempt to give relatives of those suffering from this
disease some information about the disease, its effects, causes and treatment.
The defendants rely on selected excerpts from this document in order to show
how serious the condition can be. Dr Leff is now Professor of Social and
Cultural Psychiatry at University of London and Honorary Consultant in
Psychiatry at Bethlem Royal and Maudsley Hospital and director of the Medical
Research Council, Social and Community Psychiatric Unit at the Institute for
Psychiatry, De Crespigny Park, London SE5. He is plainly a highly qualified
witness in this area of medicine.
The fellowship
has put forward an affidavit by him in which he points out that, while the
pamphlet was intended to inform relatives about the symptoms to be expected in
acute episodes of schizophrenia, the persons who are to be moved into the
property are not in an acute phase of the disease. They have had treatment for
many years and are in a quiescent stage of the illness.
Professor Leff
goes on in his affidavit to say:
4. I am a
director of the team for the Assessment of Psychiatric Services at Friem
Hospital, London, and in connection with this work I have studied the transfer
into community homes of 500 long stay patients from Friem and Claybury
Hospitals in north London. These patients were very similar in mental state and
behaviour to the patients currently in Greaves Hall Hospital from whom the
residents of 73 Scarisbrick New Road will be chosen.
5. Where
patients from Friem and Claybury Hospitals were placed in staffed homes in the
community, then in their first year of living in staffed homes, none of the
patients was involved in aggressive incidents involving neighbours or members
of the public. There was no deterioration in their mental state or behaviour.
6. My team
conducted a survey of the neighbours of one home for 20 patients in north
London six months after they moved there from the hospital. The great majority
of these neighbours were unaware that the residents were suffering from mental
illness. A number of neighbours wrongly identified the home as being an old
people’s home. This is understandable since the average age of discharged long
stay patients is 60.
7. In
general, the neighbours found the residents of these staffed homes to be
quieter than the average person. A significant proportion of the 500 patients
we studied made friends with their neighbours in the course of their first year
in the community.
8. I am sure
that the neighbours of 73 Scarisbrick New Road have no cause to fear for their
own safety or that of their children.
I now turn to
my task which is to construe the covenant and decide whether the present
proposals of the fellowship would infringe it.
In Tod-Heatley
v Benham (1888) 40 ChD 80 a house known as 6 Gloucester Terrace,
Brompton, had been let for 99 years from June 25 1820. The lessee covenanted
that he would not (at p81):
. . . do or
wittingly or willingly cause or suffer to be done any act, matter, or thing in
or upon or about the said premises, which shall or may be or grow to the
annoyance, nuisance, grievance or damage of the lessor, her heirs and assigns,
or the inhabitants of the neighbouring or adjoining houses.
The adjoining
houses, 7 and 8 Gloucester Terrace, had formed part of the original lessor’s
estate and had been demised in plots for building purposes subject to covenants
similar to those in the lease. Dr Benham became the occupier of no 6 with
notice of the covenants in the original lease. In February 1887 the premises
were opened by him as a hospital for treatment of various diseases.
By the time of
the hearing at first instance in May 1888 some 12,000 persons had attended at
the hospital (which indicates the extent of the activity on the property in
that case). The action for injunctive relief was brought by Mr Tod-Heatley, the
owner of the reversion expectant on determination of the lease in no 6 and by
the lessees and occupiers of 7 and 8 Gloucester Terrace.
The case is
important because it gives guidance as to the meaning of the word ‘annoyance’ —
far and away the most relevant and important word in the covenant I have to
construe in this case.
At p98 Bowen
LJ said:
‘Annoyance’
is a wider term than nuisance, and if you find a thing which reasonably
troubles the mind and pleasure, not of a fanciful person or of a skilled person
who knows the truth, but of the ordinary sensible English inhabitant of a house
— if you find there is anything which disturbs his reasonable peace of mind,
that seems to me to be an annoyance, although it may not appear to amount to
physical detriment to comfort. You must take sensible people, you must not take
fanciful people on the one side or skilled people on the other, and that is the
key as it seems to me of this case. Doctors may be able to say, and, for
anything I know, to say with certainty, that there is no sort of danger from
this hospital to the surrounding neighbourhood. But the fact that some doctors
think there is makes it evident at all events that it is not a very
unreasonable thing for persons of ordinary apprehension to be troubled in their
minds about it. And if it is not an unreasonable thing for an ordinary person
who lives in the neighbourhood to be troubled in his mind by the apprehension
of such risk, it seems to me there is danger of annoyance, though there may not
be a nuisance. As the Lord Justice Cotton has said, the very opinions of the
doctors called on behalf of the Plaintiffs to the effect that there may be a
risk, even if they are wrong in thinking there is risk, shew that it is not at
all events unreasonable for less skilled and competent persons to think so. The
measure is what is reasonable enjoyment of a man’s premises — not according to
the estimate given by skilled doctors as to the effect of an
may think it.
In short, the
question is whether there is a reasonable apprehension of risk. In Tod-Heatley
the risk identified was that of infection. In the present case the risk is that
of injury, particularly to the defendants’ children. It is not a complete
answer for doctors to be called by the person sought to be restrained to the
effect that there is no risk because those complaining might still reasonably
apprehend risk based on their own medical evidence. In the Tod-Heatley
case it appears that the line-up of evidence was doctor against doctor. Cotton
LJ said at p94:
I do not go
into or criticise the evidence of the doctors. Some have been called on behalf
of the Plaintiffs, who state their views and point out what they think may be a
case of nuisance. Even if they do not make out that there is really risk, yet
the expression of their opinions shews that persons residing in the
neighbourhood . . . and the inhabitants of adjoining houses in Gloucester
Terrace, might reasonably apprehend risk in consequence of those patients
being brought there. It is said that in walking along the Strand there
is just as much risk as is run by the people here. Possibly that may be so. I
do not know. In London (speaking for myself) one does not think so much
of the risk as people living in the country do. But this is bringing to a
centre in the immediate neighbourhood of these houses people, some of whom have
contagious diseases, some of whom, there is reason to believe, having regard to
the evidence of the doctors on both sides, it cannot be said that the
apprehension of risk from this hospital being carried on is unreasonable. There
has been, therefore, a violation of the covenant, and the appeal must be
dismissed.
I have not had
the benefit of submissions on behalf of those who assert an apprehension of
risk of injury in this case. That would, of course, have been helpful to me as
would an opportunity of seeing them cross-examined. Attendance for
cross-examination has never, so far as I know, been requested by the fellowship
in this case.
However, I
have, in the course of outlining the evidence of those who have complained,
already pointed out that those who have expressed anxiety have been largely
concerned about the day centre facility, which has now been abandoned, and have
been influenced by their non-expert perception (apart from Mrs Sullivan who has
some expertise in this area) of schizophrenia in its acute, rather than
quiescent, phase. Moreover, it is plain that a major reason for their concern
is their apprehension of a diminution in the market value of their respective
homes.
Against this I
have the clear evidence of Professor Leff, who concludes that the defendants
have no cause to fear for their own safety or that of their children.
In my
judgment, on the evidence before me, I find that the defendants have not
exhibited a reasonable apprehension of risk of injury to justify treating the fellowship’s
present proposals as something which, in the words of the covenant, will be or
become in any way a nuisance, annoyance or danger to the defendants.
I bear
particularly in mind that in Tod-Heatley there was medical evidence on
the part of those complaining, suggesting that there was a risk; and if those
experts thought there was a risk, it was not unreasonable that the plaintiffs
should think so too. Here there is no expert evidence put forward on the part
of the defendants.
I bear in mind
also, it should be said, that the defendants have now indicated that they do
not resist the relief being sought, albeit against the understanding and
expectation that no order for costs will be made against them.
I should
before leaving this point and in fairness to the defendants note that at a
meeting of the residents in or about 1990 Mr Bolton is said to have stated that
the worst that the defendants could expect from the residents of the property
was a brick through the window. It has troubled me that that statement by Mr
Bolton might of itself have induced in the defendants a reasonable apprehension
of risk. Mr Bolton has left the employment of the fellowship and has not
himself responded to this evidence, although Ms Jane John, director of the
fellowship’s northern region who has taken over responsibility for the
property, has said:
16. I accept
that Mr Bolton may well have said that the worst you could expect was a brick
through a window. I am sure that he intended thereby to emphasise that nothing
worse should be expected, not that this was a likely occurrence. The residents
will all be allowed into the property on terminable interests and if they cause
a nuisance they will be removed. The residents will understand the terms of
their agreements and that the consequences of any nuisance will be that they
will be removed.
I am not
entirely satisfied that I have had all the evidence relevant to this statement
made by Mr Bolton. The context in which it was said is plainly of considerable
importance. I would have wished to see some further explanation from Mr Bolton
himself. I am not, however, satisfied that it is enough to make me change my
view that, on the evidence before me and as matters now stand, the fellowship’s
present proposals will not, on the true construction of the covenant, amount to
an infringement of it.
That would be
sufficient to dispose of the case, but it has been submitted by Mr Van Hee that
in any event the activity targeted by the covenant is not the use by the
fellowship of the property, but the activity of the occupants in the property.
It would be as well to look back at the covenant itself.
First, in my
judgment, there is no question here of an infringement of the first few words
of the covenant: there is no question of any noisy, offensive or dangerous
trade or pursuit being carried on on the property. The issue lies in the next
few words ‘nor any trade or pursuit which may be or become in any way a
nuisance annoyance or danger’.
In short, therefore,
the covenant, so far as relevant to the facts of this case, is that no trade or
pursuit shall be carried on on the property which may be or become in any way a
nuisance, annoyance or danger to the surrounding properties. In my view, the
word ‘trade’ is inapposite to encompass the fellowship’s proposed user of the
property.
I turn to the
word ‘pursuit’. This word is an unusual word in this legal context. It is not a
term of art and means, so the Concise Oxford Dictionary tells us:
a profession,
employment, recreation, that one follows.
Certainly, it
conjures up the idea of a specific and identifiable activity that may be
carried on in the property such as, for example, playing the violin at
unsociable hours or, as in Mr Van Hee’s example, late-night carpentry, which
can cause legitimate annoyance to the neighbours. The word ‘pursuit’ is more
appropriate to refer to an activity carried on in the premises than to the
actions of the fellowship in setting up and running the supervised home for
expatients.
When coupled
with the reference to the words ‘shall be carried on on the property’ the
covenant seems to me to be directed to the activities of the occupants (whoever
they may be) in or upon the property rather than to the identity of the
occupants themselves or to the activity of the fellowship in selecting the
occupants and providing a home for them.
No complaint
could be made about the activities of the occupants themselves on or in the
property. They will merely be living there. The burden of complaint relates to
the personal characteristics of persons whom the fellowship has chosen or will
choose to live in the property.
The matter may
be tested by an extreme example. Suppose from time to time the fellowship
simply granted licences to occupy the property as a residence for expatients
who had at some time suffered from severe schizophrenia but were ready to
attempt to face life in the community; can it really be said that because of a
reasonable apprehension of risk of injury to children the neighbours could stop
the granting of these licences on the grounds that it was a pursuit carried on
on the property which may become an annoyance to them? I think not. The words of this covenant are
not, in my judgment, wide enough to restrict or control the owners of the
property as to the identity or personal characteristics of the individuals they
choose to permit to occupy it.
I do not say
that the matter is clear. It may be different if the scale
particularly great; but I do gain some comfort from the case of C&G
Homes Ltd v Secretary of State for Health [1991] Ch 365* where, in a
rather similar situation of the provision on a residential housing estate of
supervised housing for a group of former mental in-patients (albeit a case where
the only complaint was that neighbouring property would be reduced in value),
Lord Donaldson of Lymington MR held that the restrictive covenant in that case
was directed to conduct in or upon the premises which may cause annoyance
rather than the overall use being made of the premises by the Secretary of
State, namely that of supervised housing.
*Editor’s
note: Also reported at [1991] 1 EGLR 188.
This was not
the ratio of the case, although the observations of Nourse LJ at p386C
were supportive of the view expressed the Master of the Rolls. The covenant
concerned in that case read (at p385):
20. Not to
cause or permit or suffer to be done in or upon the property any act or thing
which may be or become a nuisance, annoyance, danger or detriment to the
transferor or owners or occupiers for the time being of other parts of the
estate.
There was in
that case, in addition, a separate covenant against user for trade or business
purposes or any purpose other than those incidental to the enjoyment of a
private dwelling-house. The existence of that separate covenant assisted the
construction which the Master of the Rolls put upon the covenant in clause 20.
That is a
feature absent from the present case but one which, in my assessment, is not
critical to the fellowship’s point. Overall, what impresses me most in this
case is that the fellowship’s proposals merely involve a residential (albeit
supervised) user of the property. There can be no complaint as to the activity
proposed to be carried on in the property itself; that activity is merely
residential. I do not think that the words of the covenant are apt to control
the identity or personal characteristics of the persons whom the fellowship
chooses to house in the property. I will make the declaration requested in the
originating summons.
Declaration
accordingly.
