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 accordance with an agreed lay-out plan was valid. It remained, or had not been shown not to remain, capable of being of benefit to the dominant estate, but the court refused injunctions against developers for breach of the injunction (and retained ownership of the roads) and against house-purchasers because it would be an unpardonable waste of much needed houses to pull them down. No damage of a financial nature had been done to the plaintiffs by breach of the lay-out stipulation. The absence of financially measurable loss flowing from a breach of contract was not necessarily fatal to a claimant’s claim for compensation. It would be unjust that the defendants should ‘be left in undisturbed possession of the fruits of their wrongdoing’ merely because the court considered it wasteful to issue an injunction ordering the demolition of the houses. The court awarded damages as a substitute for an injunction. The damages were measured as the amount that might reasonably have been demanded by the plaintiff as payment for relaxing the covenant – five per cent of the developer’s anticipated profit.
Brightman J said: ‘I turn to the consideration of the quantum of damages. I was asked by the parties to assess the damages myself, should the question arise, rather than to direct an inquiry. The basic rule in contract is to measure damages by that sum of money which will put the plaintiff in the same position as he would have been in if the contract had not been broken. From that basis, the defendants argue that the damages are nil or purely nominal, because the value of the Wrotham Park Estate as the plaintiffs concede is not diminished by one farthing in consequence of the construction of a road and the erection of 14 houses on the allotment site. If, therefore, the defendants submit, I refuse an injunction I ought to award no damages in lieu. That would seem, on the face of it, a result of questionable fairness on the facts of this case. Had the offending development been the erection of an advertisement hoarding in defiance of protest and writ, I apprehend (assuming my conclusions on other points to be correct) that the court would not have hesitated to grant a mandatory injunction for its removal. If, for social and economic reasons, the court does not see fit in the exercise of its discretion, to order demolition of the 14 houses, is it just that the plaintiffs should receive no compensation and that the defendants should be left in undisturbed possession of the fruits of their wrongdoing? Common sense would seem to demand a negative answer to this question’.
And ‘In the present case I am faced with the problem what damages ought to be awarded to the plaintiffs in the place of mandatory injunctions which would have restored the plaintiffs’ rights. If the plaintiffs are merely given a nominal sum, or no sum, in substitution for injunctions, it seems to me that justice will manifestly not have been done.
As I have said, the general rule would be to measure damages by reference to that sum which would place the plaintiffs in the same position as if the covenant had not been broken. Parkside and the individual purchasers could have avoided breaking the covenant in two ways. One course would have been not to develop the allotment site. The other course would have been for Parkside to have sought from the plaintiffs a relaxation of the covenant. On the facts of this particular case the plaintiffs, rightly conscious of their obligations towards existing residents, would clearly not have granted any relaxation, but for present purposes I must assume that it could have been induced to do so. In my judgment a just substitute for a mandatory injunction would be such a sum of money as might reasonably have been demanded by the plaintiffs from Parkside as a quid pro quo for relaxing the covenant.’
Brightman J
[1974] 1 WLR 798, [1974] 2 All ER 321
England and Wales
Citing:
Cited – Whitwham v Westminster Brymbo Coal and Coke Co CA 24-Jun-1896
Common law damages for the misuse of property involved an award of a sum equivalent to the price or hire that a reasonable person would pay for such use, even if the owner would not himself actually have been using the property. This case involved . .
Cited – Shelfer 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 . .
Cited by:
Cited – Experience Hendrix LLC v PPX Enterprises Inc and Another CA 20-Mar-2003
The claimant had obtained an interim injunction against the defendant for copyright infringement, though it could show no losses. It now sought additionally damages. The defendant argued that it could not have both.
Held: The case arose form . .
Preferred – HM Attorney General v Blake (Jonathan Cape Ltd third Party intervening) HL 3-Aug-2000
Restitutionary Claim against Pofits from Breach
The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Surrey County Council and Mole District Council v Bredero Homes Ltd ChD 1992
Land was agreed to be sold for development in accordance with an existing planning permission. Instead a later permission was obtained, and more houses were built. The plaintiff had not sought to restrain or prevent the breach, but now sought . .
Considered – Surrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
Applied – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Distinguished – Bracewell 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 . .
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Severn Trent Water Ltd v Barnes CA 13-May-2004
The water company appealed an award of damages after it had been found to have laid a water main under the claimant’s land without his knowledge or consent. The court had awarded restitutionary damages.
Held: The judge fell into error in . .
Approved – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
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 . .
Cited – Regan 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 . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Stockport Metropolitan Borough Council v Alwiyah Developments CA 1983
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Explained – Stoke-on-Trent City Council v W and J Wass Ltd CA 1988
The council had operated open markets on its land under statutory authority. In breach of the statute, the defendant operated a market on a different day, but within the excluded area. This was a nuisance actionable on proof of damage. The council . .
Cited – Devenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Cited – Jones and Another v Ruth and Another CA 12-Jul-2011
The parties were neighbours. The claimants succeeded in their assertion of trespass and nuisance in building works carried out by the defendant. The claimant appealed against the judge’s failure to award damages for harassment, saying that though . .
Cited – HKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .
Cited – One Step (Support) Ltd v Morris-Garner and Another QBD 7-Jul-2014
The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although . .
Cited – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
Lists of cited by and citing cases may be incomplete.
Contract, Damages, Land
Leading Case
Updated: 31 October 2021; Ref: scu.180884