The court denied the existence of a building scheme.
Held: Where an owner of land, on selling part of it, sees fit to impose a restriction and expresses that restriction as being for the benefit of the land which he retains, the court will normally assume that it is capable of doing so. Wilberforce J: ‘Was the land capable of being benefited by the covenant? On this point . . the answer would appear to be simple. If an owner of land, on selling part of it, thinks fit to impose a restriction on user, and the restriction was imposed for the purpose of benefiting the land retained, the court would normally assume that it is capable of doing so. There might, of course, be exceptional cases where the covenant was on the face of it taken capriciously or not bona fide . . Why, indeed, should the court seek to substitute its own standard for those of the parties – and on what basis can it do so?’
Judges:
Wilberforce J
Citations:
[1962] Ch 115
Jurisdiction:
England and Wales
Citing:
Cited – Lord Northbourne v Johnston and Son 1920
Sargant J said: ‘Benefit or detriment is often a question of opinion on which there may be the greatest divergence of view, and the greatest difficulty in arriving at a clear conclusion. . .
Cited by:
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 04 May 2022; Ref: scu.242390
