The property was on land part of a building scheme, with a covenant not to erect more than two houses on any one plot on the estate. Other restrictive covenants had been breached by the use of some properties as shops and by the erection of dwelling houses which did not meet the minimum value criterion laid down, and in particular there had been fifty ‘temporary or . . semi-temporary residences’ of low value. However eventually the scheme ended up broadly as intended. It was argued that a planning permission which would permit greater densities made the covenants obsolete.
Held: Where the only persons who could consent were the original vendors and they had ceased to be available, there was no dispensing power and, hence, the covenant was absolute. Harman J rejected the argument saying that the defendant’s surveyor had said: ‘that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation.’ and
‘It is said that, quite apart from what happens on the estate, what happened round it affects it. That is a somewhat doubtful doctrine. But supposing that to be so, what has happened? There are three estates round about this one now where people live and jostle each other cheek by jowl, being closer together than are the persons on this estate. The character of the neighbourhood, I agree, has entirely changed in that it is no longer a rural area with an outlying estate upon it, but an urban or suburban area of the City of Leeds. But the change of itself is not such a change as will disentitle the plaintiff to succeed. The area remains a residential area. It is not a commercial area. It is a place for people to live in. The plaintiff and those who share the benefits of these covenants are lucky to live in a place where a little more room is given to breathe the crowded air of this country than have their neighbours. They are lucky, but it is a right which in my judgment the law will support unless by their own negligence they have disentitled themselves to protection.’
Judges:
Harman J
Citations:
(1957) 7 P and CR 358
Cited by:
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 17 May 2022; Ref: scu.263766
