Where land is subject to a building scheme, each property owner can enforce restrictive covenants against the others. This is likely to become increasingly important if the character of the neighbourhood begins to change. The litigation in Turner v Pryce [2008] PLSCS 73 concerned the enforcement of restrictive covenants of considerable longevity. The covenants restricted the density of development on an estate that had once been surrounded by open countryside, but which has since been absorbed into The High Court disagreed. The judge accepted that the density of residential development on several plots had been allowed to exceed the maximum permitted under the building scheme. He also accepted that this had changed the character of the plots where such development had taken place. However, he rejected the claim that this had changed the character of the estate as a whole. A party that has the benefit of restrictive covenants should not be deprived of its rights by the acts or omissions of third parties, unless the covenants were now worthless and there would be no merit in enforcing them. That was not the case here. Indeed, the more that a neighbourhood begins to change, the more important it may become to preserve restrictive covenants, as opposed to discharging them. Developers will be interested in the judge’s views on the relative advantages and disadvantages of issuing proceedings for the modification or discharge of restrictive covenants in the Lands Tribunal (LT), as opposed to pursuing enforcement proceedings in the courts. The judge accepted that the courts can declare that restrictive covenants have ceased to be enforceable because they are obsolete. However, it was the judge’s view that a court should exercise this power only in a very clear case. The LT’s jurisdiction is much more flexible. The power to modify a restrictive covenant is potent and useful, especially in the case of a building scheme. The LT could have modified the restrictive covenants in relation to specific plots, without having to declare the whole building scheme obsolete. The courts do not have a similar flexibility in enforcement proceedings. However, developers may also consider it a drawback that the LT is required to consider whether proceedings before it should be notified (by advertisement or otherwise) to third parties, which may then also become embroiled in the proceedings. The judge refused to award the objectors damages instead of an injunction. Recent cases have confirmed that an injunction is the appropriate remedy to prevent a wrongful act that would infringe a claimant’s legal rights and the courts should not exercise their discretion to award damages instead except in very exceptional circumstances. Allyson Colby is a property law consultant
Where land is subject to a building scheme, each property owner can enforce restrictive covenants against the others. This is likely to become increasingly important if the character of the neighbourhood begins to change.
The litigation in Turner v Pryce [2008] PLSCS 73 concerned the enforcement of restrictive covenants of considerable longevity. The covenants restricted the density of development on an estate that had once been surrounded by open countryside, but which has since been absorbed into Birmingham. The case turned on whether the character of the estate had changed so as to render the covenants obsolescent. The landowners, who were planning infill development in their back gardens, argued that the character of the neighbourhood had changed so much that the covenants were worthless and should not be enforced.
The High Court disagreed. The judge accepted that the density of residential development on several plots had been allowed to exceed the maximum permitted under the building scheme. He also accepted that this had changed the character of the plots where such development had taken place. However, he rejected the claim that this had changed the character of the estate as a whole. A party that has the benefit of restrictive covenants should not be deprived of its rights by the acts or omissions of third parties, unless the covenants were now worthless and there would be no merit in enforcing them. That was not the case here. Indeed, the more that a neighbourhood begins to change, the more important it may become to preserve restrictive covenants, as opposed to discharging them.
Developers will be interested in the judge’s views on the relative advantages and disadvantages of issuing proceedings for the modification or discharge of restrictive covenants in the Lands Tribunal (LT), as opposed to pursuing enforcement proceedings in the courts. The judge accepted that the courts can declare that restrictive covenants have ceased to be enforceable because they are obsolete. However, it was the judge’s view that a court should exercise this power only in a very clear case. The LT’s jurisdiction is much more flexible. The power to modify a restrictive covenant is potent and useful, especially in the case of a building scheme. The LT could have modified the restrictive covenants in relation to specific plots, without having to declare the whole building scheme obsolete. The courts do not have a similar flexibility in enforcement proceedings. However, developers may also consider it a drawback that the LT is required to consider whether proceedings before it should be notified (by advertisement or otherwise) to third parties, which may then also become embroiled in the proceedings.
The judge refused to award the objectors damages instead of an injunction. Recent cases have confirmed that an injunction is the appropriate remedy to prevent a wrongful act that would infringe a claimant’s legal rights and the courts should not exercise their discretion to award damages instead except in very exceptional circumstances.
Allyson Colby is a property law consultant
