A 1958 covenant which provided that “no additional buildings whatsoever” should be erected on land did not prohibit the demolition of the current building and its replacement with a substantially larger one for which planning permission had been obtained.
The High Court has considered the extent to which a restrictive covenant was intended to prevent development in Aidan Gregory McDonagh and another v Karen Reeve [12023] EWHC 933 (Ch).
The case concerned properties in Poole, Dorset, originally in common ownership.
In 1958 when the land was divided a restrictive covenant was imposed on Rose Cottage and surrounding land, in favour of Barnwood, preventing any additional buildings being constructed.
In 1988 the bulk of the land was sold and ceased to be bound by the covenant. In the same year the then property owners agreed that a rear extension to Rose Cottage could be constructed but otherwise the 1958 covenant was to remain in full force and effect.
Barnwood was subsequently demolished and two properties built on what had been Barnwood land, one of which was owned by the defendant.
The defendant opposed the demolition of the existing Rose Cottage and its replacement with a much larger building since a new building would be an additional building.
Alternatively, to the extent that any new building was outside the original parameters of Rose Cottage, it would be a breach of covenant.
The claimants, the current owners of Rose Cottage, argued that the covenant only prevented additional buildings to Rose Cottage. A construction which did not permit the replacement of Rose Cottage would be absurd and could not have been intended by the parties.
The defendant was estopped through the 1988 agreement from arguing that there was any limitation on the size of any replacement for Rose Cottage.
The judge was not persuaded that any estoppel operated. Neither the defendant or the owners of Barnwood in 1988 had acted to their detriment in reliance upon an understanding which would render it unconscionable for the owners of Rose Cottage to resile from that understanding. The decision for the court was purely one of construction.
The natural and obvious meaning of the covenant, read in context, was simply that no buildings in addition to – in the sense of “as well as” – the existing building should be erected on the land.
It was not intended to preclude either the replacement of Rose Cottage, extending it or setting limits upon the extent of any substituted building.
Louise Clark is a property law consultant and mediator
