Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field and amenity open space areas shall be reserved for school purposes.’
Held: The paragraph was a restrictive covenant running with the land. Parker LJ: ‘It is said to be positive because it involved a positive obligation to define the area and reserve it. I have had some difficulty in following this argument and I reject it without hesitation. One only has to ask the question: ‘were the respondents free to build residential houses on the land?’ to get the answer: ‘No they were not!’ If that is not restrictive I do not know what is.’ Lawton LJ concluded that on a natural reading of the agreement the developers had covenanted with the District Council for the benefit of the land that 1.3 hectares should be not used other than for school purposes. He said that that covenant was just as restrictive as the seminal one in Tulk v Moxhay (1848) 2 Ph 774. Nourse LJ considered whether the parties intended that the term of the agreement should create a restrictive covenant whose burden was to run with the land or did they intend that its obligation should exist only in contract. He concluded that it was clear that it should run with the land and that, in the terms of the agreement, the land was to be subject to conditions and restrictions which regulated the development. He posed this question: ‘How then can it be said that such of those conditions as are negative in substance were not intended to run with the land, but to exist only in contract?’
Judges:
Parker LJ, Lawton LJ, Nourse LJ
Citations:
[1986] 1EGLR 24
Jurisdiction:
England and Wales
Citing:
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Cited by:
Cited – Blumenthal v The Church Commissioners for England CA 13-Dec-2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant.
Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 20 April 2022; Ref: scu.220273