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 of the 66 houses were subject to similar covenants.
Held: Reciprocity was a pre-requisite of such a scheme, not merely an effect. It had not been established here, and the claim that a building scheme existed failed. However the benefit of the covenants had been annexed to the land. In this case it would be wrong to impose a permanent injunction, but the court awarded a sum of andpound;3,270 by ay of damages being the individual property’s share of the proportion of 35 per cent of the overall profit.


Mark Herbert QC


[2006] EWHC 1293 (Ch)




England and Wales


CitedEagling v Gardner 1970
Introductory words in a covenant in a conveyance of land such as ‘to the intent that such covenant shall enure for the benefit of and be annexed to the remainder of the . . Estate . .’ are words of express annexation, but they are also not . .
CitedElliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
CitedJarvis Homes Ltd v Marshall and Another CA 6-Jul-2004
An intended new road was going to be the access way for 12 new houses. Part of a restrictive covenant provided that the covenantors and their successors would not ‘use or permit or suffer to be used the land hereby conveyed or any part thereof or . .
CitedFederated Homes Ltd v Mill Lodge Properties Ltd CA 29-Nov-1979
Covenents Attach to entire land not just parts
Conveyances contained restrictive covenants but they were not expressly attached to the land. The issue was whether they were merely personal.
Held: Section 78 made the covenant by the purchaser binding on his successors also. The section . .
CitedRenals v Cowlishaw CA 2-Jan-1879
The vendors were trustees for sale of a mansion-house and property, known as the Mill Hill estate, and some adjoining pieces of land and sold two of the adjoining pieces in 1845. The conveyance contained a covenant by the purchaser with the vendors, . .
CitedIn re Jeffs’ Transfer (No 2), Rogers v Astley 1966
The conveyance expressly denied the existence of a building scheme.
Held: Covenants which were made ‘for the benefit of the remainder of the Chorleywood Estate (Loudwater) belonging to the vendor’ were not annexed to each part later sold off. . .
CitedElliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
CitedReid v Bickerstaffe CA 27-May-1909
When considering whether a building scheme had been successfully imposed on plots sold off, and in addition to the conditions laid down in Elliston v Reacher, the overall extent of the estate must be clearly identified. In this case it was not so . .
CitedMarten v Flight Refuelling Limited 1962
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 . .
CitedIn re Dolphin’s Conveyance ChD 1970
The court considered whether a building scheme had been established so as to allow the mutual enforcability of restrictive covenants. A particular question arose as to the extent of the scheme involved.
Held: A building scheme was established. . .
CitedBaxter v Four Oaks Properties Limited ChD 1965
The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean . .
CitedBrunner v Greenslade ChD 1971
Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though . .
CitedCryer v Scott Brothers Sunbury Ltd 1986
A covenant had been taken on the sale of building land to require all building plans to be submitted to the transferors for their approval before building work was commenced.
Held: There was an implication that the transferors would not . .
CitedEmile Elias and Co Limited v Pine Groves Limited PC 1993
The parties disputed whether a building scheme had been established. There was no external evidence of the intention of the original parties.
Held: The building scheme was not established over a piece of land comprising five plots because . .
CitedJamaica Mutual Life Assurance Society v Hillsborough Limited PC 1989
The court considered whether a building scheme had been shown to have been established.
Held: A building scheme will not be implied merely from a common vendor and the existence of common covenants.
Lord Jauncey said: ‘It is now well . .
CitedShelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
CitedWrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
CitedO’Brien Homes Limited v Lane 5-Feb-2004
The court at first instance had considered what to award by way of damages for breach of a restrictive covenant and set a sum of pounds 150,000 out of an anticipated profit of pounds 280,000.
Held: The calculation of the gross profit might be . .
CitedAmec Developments Limited v Jury’s Hotel Management (UK) Limited 2001
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional . .
CitedBracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
CitedGafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Lists of cited by and citing cases may be incomplete.

Land, Damages

Updated: 25 February 2022; Ref: scu.242352