Over Taylor Biggs

or when individual plots on the estate were sold.  Earlier buyers of plots can enforce the covenants against later buyers.

The residential estate in question was the Northfield Estate on the outskirts of Birmingham.  The owners of 18 Woodland Road and 20 Woodland Road ("the Developers") wanted to develop their rear gardens by building three detached houses.  They obtained planning permission in 2004 and engaged a contractor but only in 2007.

However, the owners of 21 Woodland Road objected ("the Objector"), placing reliance on covenants imposed in 1890, establishing a building scheme for the neighbourhood.  The covenants prevented more than one detached house or a pair of semi-detached houses being built on each plot and imposed restrictions on construction to a building line.

The Developers denied they knew about the covenants until disclosed by the Objector.  The Developers did consider applying to the Lands Tribunal to modify the covenants on the basis that the changing nature of the area made them obsolete but, possibly believing the covenants were enforceable, they did not bother.  The Objector therefore applied to Court for an injunction. 

The Court found that the key element of a building scheme had been established:

•·                     The 1890 Deed indicated an intention to create restrictions intending to bind the Northfield Estate.

•·                     Although not named specifically, the land was subject to covenants "for the common interest".

•·                     Subsequent Conveyances of the plots had mentioned the land being subject to these restrictions imposed in 1890.

•·                     Although the original 1890 Deed could not be produced, the surrounding evidence (and in particular a Conveyance that was only five weeks later) clearly identified the area of land affected as being the Northfield Estate.

The argument that once one building had been built on the Estate the covenant was "spent" was not accepted by the Court.  If development took place, it had to conform to the terms of the restrictive covenant. 

The Court could declare that the covenants could not be enforced because of changes to the character of the area.  However, a fundamental change to the character of the Northfield Estate had to be shown such that there was no longer any value in the covenants.  The Estate remained predominantly residential, with the majority of plots housing one or two dwellings with large gardens.  Therefore, its character had not changed.  It could not be said that there was no value left in the covenants.

The objector had done nothing that might have led to the Developers to think that the covenants would not be enforced.  Whilst the Objector had recently demolished a garage and built a new one with a first floor extension, set 17 feet from the building line, this, on evidenc, was the most common infringement of the covenants, largely because cars now needed more than 12 feet to park comfortably.  This was regarded as a comparatively insignificant breach compared with the construction of three houses proposed by the Developers.

Summing up, the Court could not identify any exceptional circumstances that would conclude that the Objector was not entitled to an injunction.  It has been said that the more a neighbourhood changes, the more important it becomes to preserve restrictive covenants rather than discharge or modify them.

Turner v Pryce and Others (2008)