Westminster City Council v Duke of Westminster: ChD 1991

There was a covenant that the premises should not ‘be used for any art trade or business or profession whatsoever . . ‘ but should be ‘kept and used only for the purposes of the Grosvenor Housing Scheme as dwellings for the working classes . . ‘.
Held: A term in a restrictive covenant was now so vague as to render the covenant unenforceable. The first part imposed a restrictive obligation, but that the second part, obliging the premises to be used for the working classes, was a positive covenant enforceable by the Lessors which did not fall within the jurisdiction of the Lands Tribunal. ‘As I have said, the covenant falls into several parts. The first part is plainly restrictive. Mr Lightman argued that the second part is not restrictive but positive. He pointed to the words ‘shall be kept and used’ and said that those words amounted to a continuing obligation to carry out the purposes. That cannot, he submitted, be called a restrictive covenant. The law is familiar with positive covenants in leases, perhaps especially in user covenants. A covenant to use a particular shop for some particular trade requires the tenant not to leave the shop empty but to actively carry on the trade. Obviously a covenant to carry out some purpose, as here to provide dwellings for the working classes, does not require that every part of the demised premises should always be occupied by such persons. Premises can legitimately stand vacant between the tenancies. Premises may be required to be vacant for purposes of redecoration. It is even possible that a whole block of flats might be required to be empty for a considerable period of time if that were necessary for the purposes of repair to the block, or for better equipping the block to provide adequate dwelling. Such intervals would not mean that the City of Westminster was not keeping and using the blocks for the proper purpose. The City of Westminster merely needed an interval while the purpose was pursued. But in my judgment the obligation here undertaken is a positive obligation. The word ‘used’ carries to my mind a connotation of a duty to use. The whole phrase suggests to me, what in my view is shown by the heads of agreement and other material in evidence to be the case, that the purpose of the grant was to provide buildings in which the City of Westminster would keep tenants. It is not a covenant that could be performed by keeping the buildings empty with a view to reducing expenditure on maintenance. In my judgment the contrast in wording between the negative prohibition in the first lines of the covenant followed by the words ‘but that’ shows a clear shift of meaning from restraint to activity. It is of course true that a duty to use land for some purpose necessarily means that the land shall not be used for other purposes. Nevertheless the duty to use remains a positive obligation although a negative implication may flow from it . . It is not in dispute that the Lands Tribunal can only modify restrictive covenants. In my judgment this part of sub-clause (IX)(a) is a positive covenant and as such cannot be the subject of an application to the Lands Tribunal.’


Harman J


[1991] 4 All ER 136


Law of Property Act 1925 84


England and Wales

Cited by:

CitedDano Ltd v Earl Cadogan and others ChD 21-Feb-2003
A conveyance contained a covenant from 1929 restricting use of the land to the provision of housing for ‘the working classes.’ The land owner sought a declaration that the covenant was no longer enforceable on the grounds of vagueness.
Held: . .
CitedBlumenthal 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.


Updated: 15 April 2022; Ref: scu.180092