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 claimants.
Held: There was not only an intention to create a building scheme but also a clearly defined area in which the scheme was to operate. The proposed works would breach the covenants. The overall character of the estate had not changed so as to make the covenants obsolete or worthless. Nor had there been other breaches such as to allow a claim of acquiescence. There were no circumstances to justify the refusal of the injunction sought.


Stephen Smith QC


[2008] EWHC B1 (Ch)




Land Registration Act 1925 50(2), Law of Property Act 1925 84


England and Wales


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 . .
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 . .
CitedLund v Taylor CA 1975
The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect’s plan prepared for the common vendor or was told that the common vendor was proposing to . .
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 . .
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 . .
CitedBriggs v McCusker 1996
Where one of the plots subject to a building scheme had been sub-divided, the benefit of the covenant in the scheme which originally burdened the whole plot did not pass to the owner of one of the subdivided plots so as to enable that owner to . .
CitedChatsworth Estates Company v Fewell 1931
The plaintiff sought to enforce a restrictive covenant against using a property ‘otherwise than as a private dwelling-house’. 30 years later the Defendant purchased the property and immediately started taking paying guests. The defendant had . .
CitedBell v Norman C Ashton Ltd 1957
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 . .
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 . .
CitedRegan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
CitedRobins v Berkeley Homes (Kent) Ltd 1996
A building scheme applied to land. A development was challenged as being in breach.
Held: The defences both of change of character of the neighbourhood and acquiescence both failed, and a final injunction was granted. . .
CitedHepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .
CitedShaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Lists of cited by and citing cases may be incomplete.


Updated: 23 March 2022; Ref: scu.263648