England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		9th January 2008

Stephen Smith QC, sitting as a deputy High Court Judge

Introduction

1. These proceedings concern the rear gardens to two properties in Northfield, Birmingham. Mr. and Mrs. Scott live at 18 Woodland Road, Northfield; Mr. and Mrs. Pryce live next door at 20 Woodland Road, Northfield. The Scotts and the Pryces wish to develop the rear gardens to their properties in a joint venture by constructing 3 detached houses in them. They received planning permission for the project from Birmingham City Council in January 2004. Articles of Agreement with a building contractor were signed by Mr. Pryce (on behalf of himself and Mr. Scott) on 1^st August 2007.
2. The project has not progressed very far because Mr. and Mrs. Turner, who live across Woodland Road at number 21, object to it. They first raised objection several years ago, even before planning permission was sought for the project (indeed Mr. Turner appeared at the Planning Committee meeting and spoke against the application for permission).
3. Soon after works finally commenced in September 2007, the Turners sought an interlocutory injunction to restrain them. Undertakings were given by the Scotts and the Pryces to this Court on 11^th October 2007, that they would not continue the building works pending the trial of their claim for a permanent injunction. Directions were laid down in this Court's Order of that date for an early trial of the Turners' claim. This is the judgment following that trial.

The claim

4. The Turners claim that all the properties in Woodland Road, and several in adjoining roads, are subject to restrictive covenants imposed as part of a building scheme, and that the Scotts' and the Pryces' proposed development infringes those covenants. The Scotts and the Pryces deny that a building scheme exists; deny that, if such a scheme exists, their development would be a breach of any covenant to which their properties are subject; and assert that even if they are wrong on the first two points, the character of the area has so fundamentally changed since the scheme was set up that the Court should rule that the scheme is no longer enforceable, further or alternatively that there has been such acquiescence in previous breaches of covenant that to enforce the covenants now would be unconscionable.
5. The Scotts and the Pryces also allege that the Turners have themselves recently acted in breach of a covenant in the building scheme which they now seek to enforce, when reconstructing their double garage and rooms above. This, they say, is a matter to be weighed in the balance when the Court is considering whether to grant any equitable relief to the Turners.

The covenants

6. The covenants were contained in a Deed Poll dated 8^th September 1890. The Deed Poll itself is no longer available. Its terms, however, are described in a document entitled "Abstract of the Title of Messrs. Crosbee and Wilson to the Northfield Estate", which is dated 1890. W.H. Crosbee and J. Wilson had acquired by conveyance dated 19^th November 1889 two pieces of pasture land comprising 17 acres 2 roods and 3 perches, for £1,850. Those parcels of land appear to have made up what had become known by 1890 as the Northfield Estate, although until at least 1871 they had seemingly formed part of a much larger estate known as Street Farm, Northfield.
7. According to the description of the Deed Poll in the Abstract, by 8^th September 1890 Crosbee and Wilson had given up part of the Northfield Estate "into a certain new road called Woodland Road", had laid out the remainder of the Estate in 57 "lots or parcels" as delineated on a plan, and had resold some (at least) of those lots or parcels to a number of purchasers.
8. The Deed Poll was executed by Messrs. Crosbee and Wilson and the purchasers of the lots. It contained a number of recitals. According to the description in the Abstract, the recitals and the operative parts of the Deed were expressed as follows:

"Reciting that the said W.H. Crosbee and J.Wilson had lately purchased the said Northfield Estate which was delineated on the plan thereto annexed

And reciting that the said W.H. Crosbee and J.Wilson had given up a portion of the said land which had been made into a certain new road called Woodland Road and had divided the remainder of the said land into certain lots or parcels and had resold such parcels to the several persons whose names and seals were thereunto subscribed and affixed respectively

And reciting that the parcels purchased by such several persons were respectively shown on the said plan and were denoted by the same numbers respectively as those which were written opposite to the respective signatures of the purchasers thereto

And reciting that the said purchases were intended to be forthwith perfected with necessary and proper assurances and such several purchasers as aforesaid had for their common interest agreed among themselves and with the said W.H. Crosbee and J.Wilson respectively that the said purchases should be held and enjoyed subject to such covenants as were thereinafter contained

It was witnessed that in pursuance of the said Agreement each and every of the said parties thereto for himself his heirs appointees executors and assigns

Did thereby covenant with the said W.H. Crosbee and J.Wilson their heirs executors and administrators and also as a separate covenant with every other party thereto his heirs appointees and assigns so as to give to every such other party his heirs appointees and assigns a separate remedy whether at law or in equity in manner following (that is to say)

That in the event of the said covenanting party his heirs appointees or assigns building on the land so purchased by him as aforesaid he or they should and would erect on such land a good and substantial messuage or dwelling-house or one pair of semi-detached messuages or dwelling-houses and no more with all necessary outbuildings and all proper and effectual sewers or drains and culverts thereto and should not erect or permit on the said land any back house public house or pleasure garden

And that the front of such dwelling-houses should be built up to the building line situate at an uniform distance of twelve feet from the footpath.

And that every such dwelling-house should when finished be of the value of £300 (or in the case of semi-detached houses £600 the pair) at the least

And that in case of any alteration of or addition to such dwelling-house or dwelling-houses the front thereof should always be maintained in conformity with the covenants and provisions therein contained

And that the covenanting party should not extract any mineral stone slate clay or earth from the land so purchased by him except sufficient to allow him to lay the foundations of any such house or houses aforesaid

Proviso that on every future disposition of the beneficial interest in the fee simple of every and any parcel of land subject to the covenant therein contained the personal liability under the said covenant of the party so disposing thereof in respect of the parcel of land disposed of should cease and determine except as to all breaches thereof then already committed but that nevertheless the burden of such covenant should run with the pieces or parcels of land to which they were applicable through all transfers and modifications of ownership"

Background

9. Northfield is situate to the South West of Birmingham city centre.
10. As I have indicated, in 1889, when Crosbee and Wilson purchased the Northfield Estate, it was pasture land. Its boundary to the south was the Midland Railway (Bristol and Birmingham Branch) between Barnt Green and Birmingham, close to Northfield Station. Its boundary to the north was Bumbury Lane (soon thereafter renamed Bunbury Lane, perhaps for euphonious reasons), with open fields beyond. To the East were open fields. To the west was a farm known as Moat Farm, more fields and St Lawrence's Church.
11. Far from the madding crowds the Northfield Estate was not destined to stay. Whether the catalyst for change was the railway or a more structured plan on someone's part, the evidence before me does not disclose. What is clear is that by the time the Deed Poll was executed just under a year after the purchase, the new Woodland Road had been inserted, dividing the Northfield Estate roughly into two halves, and 57 plots for residential development had been identified.
12. The description I have given is taken from a plan attached to the only contemporaneous indenture which the parties have unearthed. That indenture was a conveyance dated 13^th October 1890 from Crosbee and Wilson to one Charles Pembrook, of lot 35 of the Northfield Estate. Lot 35 became 21 Woodlands Road, viz. the property now owned by the Turners. Mr. Pembrook took the conveyance "subject to the covenants, provisions and restrictions for regulating the buildings on the said 'Northfield Estate' contained in the Deed Poll" dated 8th September 1890. Mr. Pembrook, in other words, took the land subject to the covenants already created: he did not enter into any of the covenants himself.
13. This Court's Order of 24^th October 2007 impliedly gave permission to the parties to adduce expert evidence in the form of a "statement from an architect or similarly qualified professional in relation to the development of the Northfield Estate". Both sides took advantage of this permission: the Turners served a statement made by Joe Holyoak, an architect and urban designer, and the Scotts and the Pryces served a statement made by Jonathan Owen, a residential surveyor. Both Mr. Holyoak and Mr. Owen gave evidence at the trial and I am indebted to them for having done so.
14. Mr. Owen's diligence unearthed several Ordnance Survey maps of Northfield, going back to 1884. At that stage, of course, the two parcels of land purchased 5 years later by Crosbee and Wilson were still pasture.
15. 20 years later the picture was much changed. The 1904 map not only shows development on a significant number of the Woodland Road plots, it also shows that another residential road - Norman Road - had been inserted to the East of the Northfield Estate, running parallel to Woodland Road (until it joined it, dissecting plots 43 and 44 in the process). The western side of Norman Road (ie the side adjoining the end of the gardens of the plots on the eastern side of Woodland Road) appears to have been entirely developed by 1904. A "tennis ground" had also been constructed across Bunbury Lane, at the top of Woodland Road.
16. By 1919 not much appears to have changed. There were still a significant number of plots on both sides of Woodland Road which had not been developed. The tennis ground had, however, enlarged into a cricket ground.
17. By the time of the 2006 map, the picture was quite different. Not only had all the plots on Woodland Road long since been developed (and in some cases redeveloped, as to which see below), Moat Farm had entirely disappeared, the fields across Bunbury Lane had been built upon, as had the cricket ground and the fields on the other side of Northfield. The area had become, as the expert witnesses described it, an outlying suburb of one of England's largest cities.
18. Appendix 8 to Mr. Owen's report contains a number of plans. The third of these very helpfully shows not only the original plots overlaid on a scaled up version of the Ordnance Survey map, but also when each of the existing houses on the plots was built by reference to four periods, viz. 1890-1914, 1919-1945, 1945-1960 and 1960-1985. The houses at 18, 20 and 21 Woodland Road now occupied by the parties to this dispute, were constructed in one of the first two periods, ie before 1945.
19. Mr. Owen's plan cross hatches 28 of the original 57 plots. This cross hatching demonstrates Mr. Owen's view that the development on each of those plots constituted a "major breach of covenant". That was perhaps an unfortunate description, because the question of whether there has been a breach of covenant, and especially how significant it was, is a matter for me to decide on all the evidence before me. But it was certainly helpful for me to see in diagrammatic form where the Scotts and the Pryces consider that development has been carried out which does not appear to have been in conformity with the covenants contained in the 1890 Deed Poll, as they construe those covenants. As appears later in this judgment, the Turners concede that in several respects (especially as regards 7 of the original plots) there has been "a major breach of covenant".
20. Title to the Turners' property at 21 Woodland Road was first registered on 10^th February 1975. The first entry in the charges register refers to the Deed Poll as containing restrictive covenants set out in a schedule; the schedule sets out the covenants in full. The Turners were registered as proprietors on 28^th March 1994.
21. Title to the Scotts' property at 18 Woodlands Road was first registered upon their purchase on 19^th February 1991. Again, the first entry in the charges register refers to the Deed Poll as containing restrictive covenants, but then says, "neither the original deed nor a certified copy or examined abstract thereof was produced on first registration". Consequently, the registered title contains no schedule setting out the covenants.
22. Title to the Pryce's property at 20 Woodlands Road was first registered on their purchase on 6^th April 1990. Again, the first entry in the charges register refers to the Deed Poll as containing restrictive covenants and, as with the Turners' title, the covenants are set out in full in a schedule to the title.
23. Each of the parties ought therefore to have been alerted at the time of their respective purchases to the existence of covenants in the Deed Poll, and in the case of the Turners and the Pryces to the actual terms of the covenants. As a matter of law, by Section 50(2) of the Land Registration Act 1925 each proprietor was deemed to be affected with notice of the covenants.
24. Mr. Scott and Mr. Pryce, both of whom gave evidence at the trial, denied all knowledge of the covenants in the Deed Poll until they were brought to their attention by Mr. Turner in 2002 or 2003. They consulted solicitors (Hammonds) in 2004, and correspondence ensued with the Turners' solicitors (at first Adcock & Company, later Kerwoods).
25. The first substantive letter from Hammonds to Kerwoods is dated 26^th March 2004. That letter takes many of the points which I have to determine in this judgment, along with several others. One of those others concerns the jurisdiction of the Lands Tribunal, about which this is said:

"... our client would be entitled to make an application to the Lands Tribunal which will of course take into account the fact that our client has been granted planning permission and the reason why the objections to the planning permission were not successful. We cannot see how the Lands Tribunal would refuse our client's application ..."

26. In their letter to Kerwoods dated 14^th June 2004, Hammonds said this:

"In respect of the changing character of the neighbourhood, we note that you and your Counsel consider that there had not been a complete change in the area following your site visit. We have set out to you previously examples of the changes that have been made. 100 years ago, when the Deed Poll was drafted, Northfield was an outline [sc. outlying] village. It is now a well established suburb in the second largest city in the country. Following two world wars the character has changed from the initial established Victorian houses to the different pre and post war semis that have been built and the different modern houses built in the 1960s and 1980s.

Our clients are currently considering their application to the Lands Tribunal and we are of the opinion that a Lands Tribunal will decide in our clients' favour."

27. Nothing further was heard from the Scotts and the Pryces until a letter was received from MJ Darby & Co, their present solicitors, over 3 years later, dated 5^th July 2007, giving 14 days' notice of an intention to commence building works. In that letter the writer said this about the Lands Tribunal application to which Hammonds had referred in 2004:

"The position is therefore, that even if the covenants were valid there have been numerous breaches of the covenant which is entirely understandable and practical given the changing nature of the characteristics of the area involved clearly render any breach of covenants unenforceable and my clients do not consider it appropriate to seek a Lands Tribunal determination of circumstances which I respectfully suggest are clear from an application of quite clear and sound principles of land law."

28. In paragraph 34 of his witness statement dated 13th November 2007, however, Mr. Pryce said this about the mooted application to the Lands Tribunal:

"We were advised ... that the only certain way to resolve the issue was for the removal or variation of the restrictive covenant and we considered an application to the Lands Tribunal for removal or variation of the covenants, but upon enquiry of our then solicitors we considered this to be a hugely expensive exercise and having already been involved with legal process as a result of Mr. and Mrs. Turner's correspondence we were unable to follow that course of action due to financial constraints."

29. The Lands Tribunal jurisdiction referred to is its jurisdiction pursuant to Section 84 of the Law of Property Act 1925 to discharge or modify restrictive covenants affecting land. The relevant provisions of Section 84 (1) are as follows:

"The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied –

(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the

restriction ought to be deemed obsolete; or

(aa) that ... the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or

….

(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction;"

30. The power to modify a restrictive covenant is plainly a power of considerable utility, especially, one would have thought, in the case of a building scheme. As will appear below, there are plots on the Northfield Estate where development has taken place which does not conform to the restrictions contained in the Deed Poll. It seems to me that under the Section 84 jurisdiction the Lands Tribunal could - if satisfied after having made all appropriate enquiries, that to do so was a proper exercise of its discretion - modify the covenants in the Deed Poll to permit similar development on other particular plots without having to declare the whole of the scheme obsolete. I do not have a similar flexibility in enforcement proceedings.
31. Two other provisions of s. 84 should be noted. First, under Subsection (3) the Lands Tribunal is directed to consider whether the proceedings before it should be notified, by advertisement or otherwise, to other persons who appear to be entitled to the benefit of the restrictions subject to the application.
32. Secondly, under Subsection (9), where any Court proceedings are commenced to enforce a restrictive covenant, any defendant to those proceedings may apply to the Court for an Order giving him leave to apply to the Lands Tribunal under s. 84 and staying the proceedings in the meantime. I was informed that at the hearing before this Court on 24^th October 2007 Counsel for the Turners expressly invited the Scotts and the Pryces to consider making an application under Subsection (9) instead of pressing for an early trial of these proceedings.

The points taken on behalf of the Scotts and the Pryces

33. As I have already outlined, on behalf of the Scotts and the Pryces Mrs. Frances Pigott takes the following points:

(a) that the existence of a building scheme has not been established;

(b) that what the Scotts and the Pryces propose would not be a breach of any covenant in the Deed Poll;

(c) that the right to rely on the covenants has in any event been lost, either:

(i) because of a change in the character of the neighbourhood, rendering the covenants worthless or enforcement against the Scotts and the Pryces unfair; or

(ii) because of "a lengthy period of acquiescence in breaches of covenant by the Turners or their predecessors in title", or

(d) that the Turners have themselves committed a breach of one of the covenants and this should weigh against the grant of injunctive relief.

34. No significant disputes of primary fact emerged during the trial and I am therefore not required to assess the credibility or reliability of any of the witnesses.

(a) Whether the existence of a building scheme has been established

35. The parties took as their starting-point for a consideration of the law of building schemes the celebrated decision of Parker J in Elliston v. Reachier [1908] 2 Ch 374. After referring to Renals v. Cowlishaw 11 Ch D 866 and Spicer v. Martin 14 App. Cas. 12, Parker J said this:

"... it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lots, are consistent and consistent only with some general scheme or development; (3) that these restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and (4) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors. If these four points be established, I think that the plaintiffs would in equity be entitled to enforce the restrictive covenants entered into by the defendants or their predecessors with the common vendor irrespective of the dates of the respective purchases."

36. A number of later authorities were cited to me, of which I need refer to only 4 on this point.
37. Mr. De Waal for the Turners relied on Baxter v. Four Oaks Properties Ltd [1965] 1 Ch 816. In that case 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. Cross J held that this did not mean that the building scheme was ineffective.
38. At p. 825 E-G the Judge referred to the difficulty of annexing to a plot of land 'A' which had been earlier sold off, the benefit of a restrictive covenant imposed on the sale of plot 'B' which was the subject of a later sale, and said this:

"... for well over 100 years past where the owner of land deals with it on the footing of imposing restrictive obligations on the use of various parts of it as and when he sells them off for the common benefit of himself (in so far as he retains any land) and of the various purchasers inter se a court of equity has been prepared to give effect to this common intention notwithstanding any technical difficulties involved."

And at p. 826 B-D:

"The view taken by the courts has been rather that the common vendor imposed a common law on a defined area of land and that whenever he sold a piece of it to a purchaser who knew of the common law, that piece of land automatically became entitled to the benefit of, and subject to the burden of, the common law. With the passage of time it became apparent that there was no particular virtue in the execution of a deed of mutual covenant - save as evidence of the intention of the parties - and what came to be "building schemes" were enforced by the courts if satisfied that it was the intention of the parties that the various purchasers should have rights inter se, even though no attempt was made to bring them into direct contractual relations."

39. Mrs Pigott drew my attention to the later decisions of Lund v. Taylor [1975] 31 P & C R 167 and Emile Elias & Co Ltd v. Vine Groves Ltd [1993] 1 WLR 305.
40. In Lund the Court of Appeal allowed an appeal from a finding that there was a building scheme, ruling that there was no sufficient evidence from which it could be inferred that the common vendor intended to create a scheme of local law. 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 exact similar (or indeed any) covenants from the purchasers of other plots. The decision in Baxter was approved (see p. 178).
41. Central to the Court of Appeal's decision in Lund was this passage in the judgment of Sir Herbert Cozens-Hardy MR in Reid v. Bickerstaff

[1909] 2 Ch 305 at p. 319:

"There must be a defined area within which the scheme is operative. Reciprocity is the foundation of the idea of a scheme. A purchaser of one parcel cannot be subject to an implied obligation to purchasers of an undefined and unknown area. He must know the extent of his burden and the extent of his benefit. ... A building scheme is not created by the mere fact that the owner of an estate sells it in lots and takes varying covenants from various purchasers. There must be notice to the various purchasers of what I may venture to call the local law imposed by the vendor upon a definite area."

42. In the Emile Elias case the claim of a building scheme failed for similar reasons as the claim in Lund. In giving the judgment of the Privy Council Lord Browne-Wilkinson referred to the passage in Reid v. Bickerstaff which I have cited and ruled that since in that case it was intended that lots 1-5 of a piece of land be part of a scheme but that the purchasers of lots 1-3 did not know that lot 5 was intended to be a part of the scheme, the requirements of a defined scheme area were not satisfied.
43. Mr. De Waal was critical of some of the reasoning of Lord Browne Wilkinson (though not, I think, the actual decision in that case), which he submitted was not consistent with the prima facie more liberal approach of Cross J in the Baxter case. Neither the decision in Baxter nor the decision in Lund was cited to the Privy Council in Emile Elias.
44. I do not need to venture a view on Mr. De Waal's criticisms, because I am entirely satisfied that in this case 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 plan referred to in the conveyance to Mr. Pembrook identifies the area of land affected, and Mrs. Pigott accepts that it is not a huge step to infer that the plan referred to in the Deed Poll just over 1 month earlier would have been in the same form as that plan. The intention to create a scheme is clear from the terms of the Deed Poll itself.
45. Mrs Pigott submitted that a building scheme was not created in this case because there was an absence in the Deed Poll of any reference to the benefit of the restrictive covenants being for the whole of the Northfield Estate. In Lund v. Taylor (loc cit) it was of some significance that the words "and so as to benefit and protect the vendors' Grange Estate" were not included in the first four conveyances which were executed (see p. 175); and similar words are also missing from the Deed Poll in this case.
46. I disagree that there was an absence of necessary words in the Deed Poll. The last recital records that the purchasers - who were purchasers of some or perhaps all of the lots on the Northfield Estate as delineated on an annexed plan - had agreed that the land they had purchased should be subject to the covenants "for their common interest". That interest can only have been as purchasers of lots on the Northfield Estate.
47. The conveyance of lot 35 to Mr. Pembrook some 5 weeks later provides confirmation of the elements of the scheme. The first recital refers to lot 35 as being "subject to the building restrictions and covenants contained in the Deed Poll"; and the operative part provides that Mr. Pembrook was to hold lot 35 "subject to the covenants provisions and restrictions for regulating the buildings on the said 'Northfield Estate' contained in the Deed Poll".
48. Moreover, the point being made in the passage in Lund to which I have referred was directed at the uncertainty in that case surrounding the intention to create a building scheme as alleged: there was no single instrument imposing the relevant covenant; the forms of the covenant varied from conveyance to conveyance; and there was no evidence that any purchaser saw the plan containing numbered plots or was told about the scheme. In this case, as I have indicated, there was no such uncertainty.
49. Mrs. Pigott also submitted that there is no evidence before the court that all subsequent purchasers had agreed to abide by the covenants contained in the Deed Poll. The premise of this submission was that not all of the plots had been sold off by Crosbee and Wilson by the time the Deed Poll was executed, and that it was therefore not sufficient to refer to just the Deed Poll as establishing the scheme for every single plot.
50. I am not satisfied that Mrs Pigott's premise is well founded. The wording of the Deed Poll (especially the recitals) is to my mind more consistent with all the plots having been already agreed to be sold, albeit by then not yet conveyed. Be that as it may, I am in any event not prepared to infer without evidence that one or more of the original 57 plots was at some stage conveyed by Crosbee and Wilson free from the burden of the covenants in the scheme which they had been at pains to create in 1890. The only three titles placed before me are all expressed to be subject to the covenants. In these days of ready access to details on the Land Register under Section 66 of the Land Registration Act 2002, it was within the power of the Scotts and the Pryces to inspect other titles for discrepancies but no such discrepancies have been drawn to my attention.
51. I therefore reject Mrs. Pigott's first submission and find that the Turners have established the existence of a building scheme containing restrictive covenants to which the properties owned by the Scotts and the Pryces are subject.

(b) Whether what is proposed would be a breach of any of the covenants

52. Mrs. Pigott's next submission was that building an additional three houses on the two plots would not be a breach of any of the covenants contained in the Deed Poll.
53. It was not submitted to me that any part of the covenants in the Deed Poll with which these proceedings are concerned was unenforceable on the ground that it amounted to a positive rather than a restrictive obligation. Although certain aspects of the covenants may at first sight appear to be more positive in nature than restrictive, the aspect on which the Turners rely, relating to the density of dwelling houses on the plots, is undeniably a restrictive covenant.
54. The thrust of Mrs. Pigott's submission was that the covenants required the construction of one dwelling house (or a pair of semi-detached dwelling houses) by the original developer, to the specifications contained within the Deed Poll, but once the original house or houses had been built in accordance with the covenant, the covenant was "spent". The only obligation which remained was to maintain the front of any alteration or addition to any such house in conformity with the restrictions in the Deed Poll (though such an obligation, shorn of the spent restrictions, would seemingly be unenforceable because of its positive nature).
55. The submission appears to have been a relatively recent idea. It would not have been necessary to consider an application to the Lands Tribunal, as referred to by successive solicitors of the Scotts and the Pryces in 2004 and 2007, if the submission is well founded. The idea also does not appear to have been in Mr. Pryce's mind when he investigated the position after the Turners had first raised the issue of the covenant, as he explained in paragraph 32 of his witness statement made on 13^th November 2007:

" ... I undertook considerable research of the situation with regard to the restrictive covenants and I identified what I will refer to as the Northfield Estate within which properties were on the face of it affected by the covenant. I carried out a detailed examination of all the properties within the Northfield Estate purportedly affected by the covenant to see if the covenant had been fully complied with. I believe that the terms of the covenant were clear enough and prevented development on any of the plots as outlined in the Northfield Estate plan other than with the development of one detached house or a pair of semi detached houses and then confirmed a further restriction with regard to the building of the frontage of the property to give a consistent building line."

56. Mrs. Pigott had to accept that her submission would have had the effect that in 1891 a developer could have developed a plot in conformity with the covenant, declared his development complete, then sold the plot to another developer who would - according to the submission - have been free to erect several further houses in the rear garden, all within months of the ink drying on the Deed Poll. That seems to me to make no sense at all.
57. I have no hesitation in rejecting Mrs. Pigott's construction of the particular obligations imposed by the Deed Poll. The Deed Poll did not require the development of any plot. It did require that any development which the then owner decided to implement should be in conformity with the specifications laid down, which included the construction of one dwelling house or a pair of semi-detached dwelling houses "and no more". The latter phrase was not just a reference to the original construction but is a continuing description of what may be contained on the plot.
58. Mrs. Pigott also referred me to the decision of Judge Rich QC in Briggs v. McCusker [1996] 2 EGLR 197. In that case it was held that 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 enforce the covenant against an owner of one of the other subdivided plots. I can find nothing in that decision which assists Mrs. Pigott in her argument on the construction of the covenant in this scheme.
59. It follows that in my view what is proposed by the Scotts and the Pryces would be a breach of the covenant contained in the Deed Poll not to build more than a single dwelling house or a pair of semi-detached dwelling houses on each plot, if those covenants remain enforceable by the Turners.

(c) Whether there has been such a change in the character of the neighbourhood that the covenants are worthless or would render enforcement unfair

60. It is undoubtedly the law that a Court has the power to rule that a covenant has ceased to be enforceable through obsolescence, see eg Chatsworth Estates Company v. Fewell [1931] 1 Ch 224 and Bell v. Norman C. Ashton Ltd (1957) 7 P & CR 358. But in my view a Court should exercise that power only in a very clear case. I have already referred to the discretionary (and more flexible) power of the Lands Tribunal to discharge or modify restrictive covenants, including in a situation where the Lands Tribunal considers that by reason of changes in the character of the property or the neighbourhood, the restriction should be deemed to be obsolete. And I have noted that the Lands Tribunal is directed to consider, before exercising its powers, whether it should solicit - by advertisement, notification or otherwise - the views of third parties who may be interested in the restrictions. The fact that Subsection (9) of Section 84 of the Law of Property Act contemplates a stay of enforcement proceedings to enable the Lands Tribunal to consider exercising its powers, suggests that Parliament considered the primary forum for determining issues such as obsolescence to be the Lands Tribunal. These considerations have especial force in a case of a building scheme such as this which imposed identical covenants on 57 separate properties.
61. Even on just the two authorities to which I have referred, however, Mrs. Pigott accepted that she had a difficult case.
62. The Chatsworth Estates case involved a 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 in that case had also initially suggested that the covenants may be modified by the Lands Tribunal, but he made no application, and thus proceedings for enforcement were commenced, and were successful.
63. The area under consideration in the Chatsworth Estates case had remained "mainly" residential, although many flats had been erected and a few boarding houses and schools had come into existence in "technical breach of the covenants". On the change of character defence, Farwell J said this (at pp. 229-30):

"But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose. ... Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief. "

64. In this case, I have no hesitation of acquitting the Turners of any charge that they have brought these proceedings otherwise than bona fide to protect their property. Indeed, to be fair to the Scotts and the Pryces, the contrary was never suggested.
65. Bell v. Norman C. Ashton Ltd (loc cit) was a case of a building scheme. The relevant restriction in that case was not to erect more than two houses on any one plot on an estate in (or close by) Leeds. There had been breaches of other restrictions, viz. by the use of some properties as shops and by the erection of dwelling houses which did not meet the minimum value criterion laid down: instead of houses valued at at least £400, purchasers had been permitted to erect as many as fifty "temporary or ... semi-temporary residences" which Harman J described thus at p. 367:

"No doubt they were undesirable dwellings; you might call them shacks. Some people called them chalets. There were huts and even a railway carriage."

66. Over the years, however, the temporary residences had been gradually replaced and the estate as it existed at the time proceedings commenced was "by and large" a residential estate with about two houses to an acre, as it had been originally planned to be. The Court was, however, pressed with the argument that since town planning approval had been given in that case for the construction of dwellings at a greater density than two per acre, the restriction was obsolete. Harman J summarised and then rejected the argument in these terms (at p. 369):

"He [the defendant's surveyor] said that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation."

67. There is a further passage in the judgment in the Bell case to which I should refer. Harman J was pressed with the further argument that the density of neighbouring estates was greater than the density permitted by the covenant, and that that fact should lead to the conclusion that the covenant should not be enforced. The Judge gave this response:

"It is said that, quite apart from what happens on the estate, what happened round it affects it. That is a somewhat doubtful doctrine. But supposing that to be so, what has happened? There are three estates round about this one now where people live and jostle each other cheek by jowl, being closer together than are the persons on this estate. The character of the neighbourhood, I agree, has entirely changed in that it is no longer a rural area with an outlying estate upon it, but an urban or suburban area of the City of Leeds. But the change of itself is not such a change as will disentitle the plaintiff to succeed. The area remains a residential area. It is not a commercial area. It is a place for people to live in. The plaintiff and those who share the benefits of these covenants are lucky to live in a place where a little more room is given to breathe the crowded air of this country than have their neighbours. They are lucky, but it is a right which in my judgment the law will support unless by their own negligence they have disentitled themselves to protection."

68. In the light of this guidance from Farwell J and Harman J, it is easy to understand Mrs Pigott's observation in closing that the authorities were "persuasively" against her. Mrs. Pigott tried valiantly to distinguish the circumstances of the present case by focussing on the "commercial inroads" into the Estate. But as I explain in paragraph 74 below, I am not convinced that the covenants in the Deed Poll were intended to preclude all business user of the properties on the Estate. In any event, such business user as there is and has been, is in my view not significant.
69. In my judgment, the character of the Northfield Estate is not substantially changed from the character envisaged by Crosbee and Wilson when they created the building scheme. I reject Mrs. Pigott's submission that the Estate has become "a large urban development containing both commercial and residential premises". The Estate remains predominantly a residential estate. The majority of the plots still comprise just one or two dwelling houses, as stipulated in the Deed Poll, and have gardens whose length exceeds the gardens of most of the properties in the surrounding area. I am sure I can take judicial notice of the fact that the air of this country has become more, not less, crowded than it was in 1956 when Bell was decided; and that the amenities of space and privacy in a suburb of a major city are just as, and probably even more, desirable now than they were 50 years ago.
70. There are, of course, the admitted major breaches of covenant which I consider in more detail below, where the density of residential units on several plots has been allowed to exceed the maximum stipulated by the Deed Poll by some margin. Whilst I accept that these breaches have changed the character of the plots where the development has taken place, I do not accept that they have changed the character of the whole of the Northfield Estate. On the whole, the Estate retains its originally envisaged character. In any event, in my judgment it cannot be said in this case that because some previous breaches have occurred, the covenants are now futile. As Andrew Francis points out in his book Restrictive Covenants and Freehold Land 2^nd edition (2005) at p. 155, in situations such as this, the more the neighbourhood begins to change, the greater may be the importance of the preservation of restrictive covenants rather than their discharge.
71. I therefore reject the argument that there has been such a change in the character of the neighbourhood that the covenants in the Deed Poll have been rendered worthless or their enforcement unfair. It has certainly not been established that the covenants are clearly obsolete according to the test laid down in the authorities.

(d) Whether the covenants should not be enforced because of previous acquiescences in breaches of covenant by the Turners or their predecessors in title

72. The Turners moved into number 21 in 1994. There is no evidence before me that they have acquiesced in any development carried out on any other plot in breach of any of the covenants in the Deed Poll since that date. So if a case of acquiescence is to succeed against the Turners, it is a case which must be based on the acquiescence of their predecessors in title.
73. Mr. Owen is of the view that there have been "major breaches of covenant" as regards the development of 28 of the 57 plots. I do not share that view. I do not believe it is necessary to go through each of Mr. Owen's 28 allegations and indicate my views on each: it is admitted that there were major breaches of covenant (by infill development) affecting 12 of the plots, the most significant of which occurred in reasonably close proximity to the part of the Estate on which the parties reside. If the acquiescence of the Turners' predecessors in title in those admitted breaches is not sufficient to render the covenants unenforceable, their acquiescence in more minor breaches will certainly not do so.
74. For the record, however, I should point out that I do not necessarily accept that there were even minor breaches of the covenants in all the other cases identified by Mr. Owen. For instance, as regards the 5 or so properties from which businesses are or have in the past been conducted (eg nursery schools, a doctor's surgery and a physiotherapist), it is to be borne in mind that the covenants in the Deed Poll do not include an express prohibition of all business use on the plots; indeed it seems to me to be at least arguable that the inclusion of an express prohibition of use of any property as a public house suggests that other business uses were impliedly sanctioned.
75. The 12 plots where it is admitted that there have been major breaches of covenant by infill development fall into two categories. The less significant category concerns plots at the extremity of the Estate where the density of dwellings has exceeded that permitted by the Deed Poll, albeit not greatly. The more significant category concerns the developments of plots 19 and 20, and subsequently plots 13-17. Those two developments are in a more central part of the Estate and the developments have left those plots with a density of dwellings which substantially exceeds the density per plot permitted by the Deed Poll. I shall concentrate on the more significant category of breaches.
76. As I have indicated, the first significant development concerned plots 19 and 20. Plot 20 is the next plot but one to the Pryces' property at number 20, and diagonally opposite the Turners' property at number 21.
77. The development of plots 19 and 20 occurred, according to Mr. Owen, some 46 years or so ago (ie early in the 1960s). It comprised the demolition of all but one of the buildings which then stood on those plots, the insertion of a short cul de sac known as Conifer Drive, and the construction of one new house and a building comprising 12 flats.
78. The second significant development affected plots 13 to 17, a little further down Woodland Road. That involved the demolition of the existing buildings on the plots, the insertion of a longer cul de sac giving access to a development on land outside the Northfield Estate, and the construction of 9 pairs of semi-detached houses on the 5 plots. According to Mr. Owen, this development occurred some 37 years ago (ie about 1970).
79. Both of these developments are on the western side of Woodlands Road. Consequently there is now a disparity in the densities of the dwellings on the western and eastern sides of the road. When preparing his report in connection with the Scotts' and the Pryces' application for planning permission, the Area Planning Officer calculated that the density on the western side is now 35 dwellings per hectare, whereas the density on the eastern side is 15 dwellings per hectare (whilst it is accepted that there is a disparity, the Turners do not accept that it is as great as the Area Planning Officer has indicated).
80. The evidence before me establishes that these developments have occurred, but does not establish how they were allowed to occur. The assumption has been that the covenants in the Deed Poll were deliberately ignored, or inadvertently overlooked, without protest or other action by any other owner on the Northfield Estate. Whether that assumption is correct I cannot say, but I cannot do anything other than proceed on the basis that it is.
81. In support of her submissions on this part of the case Mrs. Pigott referred me to the decisions in Hepworth v. Pickles [1900] 1 Ch 108 and Robins v. Berkeley Homes (Kent) Ltd [1996] 2 EGLR 197; Mr. De Waal relied on Shaw v. Applegate [1977] 1 WLR 970; there is also the decision of Farwell J in the Chatsworth Estates case (loc cit). I shall consider these decisions in chronological order.
82. Hepworth v. Pickles was a case of a covenant against the use of land as an inn, tavern or beerhouse. Soon after the conveyance imposing the covenant, beer and spirits began to be sold from one of the properties on the land, and continued to be openly sold for more than 24 years. When the purchaser under a contract for the sale of that particular property discovered the covenant, he applied to rescind the contract. Farwell J dismissed the purchaser's action, ruling that the covenant had been waived or released.
83. In the Chatsworth Estates case, Farwell J was faced not only with the change in character of the neighbourhood defence to which I have already referred, but also an argument based on acquiescence in previous breaches of covenant by the plaintiffs and their predecessors in title. This argument too was rejected. The Judge said at p.231:

"... the principle upon which this equitable doctrine rests is that the plaintiffs are not entitled to relief if it would be inequitable to the defendant to grant it. In some of the cases it is said that the plaintiffs by their acts and omissions have impliedly waived performance of the covenants. In other cases it is said that the plaintiffs, having acquiesced in past breaches, cannot now enforce the covenants. It is in all cases a question of degree. It is in many ways analogous to the doctrine of estoppel, and I think it is a fair test to treat it in that way and ask, "Have the plaintiffs by their acts and omissions represented to the defendant that the covenants are no longer enforceable and that he is therefore entitled to use his house as a guest house?"

84. Shaw v. Applegate was a case of 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 damages. The Court of Appeal overturned the decision at first instance that the right to enforce the covenant had been lost, but awarded damages in lieu of an injunction. After referring to a number of authorities, Buckley LJ concluded at p. 978D:

"The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the right sought to be enforced, to continue to seek to enforce it."

85. In Robins v. Berkeley Homes, a case of a building scheme, the defences of change of character of the neighbourhood and acquiescence both failed, and a final injunction was granted. In the relevant part of his judgment the Judge referred to the passage I have cited from the decision of Farwell J in the Chatsworth Estates case, and simply observed that the facts of the case he was considering came "nowhere near establishing that principle". I do not see how this decision can be of any assistance to Mrs Pigott.
86. The decisions in Hepworth v. Pickles and Shaw v. Applegate are not of direct relevance because they were cases of restrictive covenants where the covenantor had acted in breach of covenant, and the question was whether he could or should now be held to his covenant even though the beneficiary of the covenant had not acted to enforce it, or had not acted with expedition. This case is different: what the Scotts and the Pryces rely on is not a previous breach of covenant by themselves or a predecessor in title of either of them, but breaches by neighbours or other owners on the Northfield Estate. The decision in Shaw is however instructive in demonstrating that acquiescence may bar the remedy, but not the right.
87. The closer decisions on the facts are the Chatsworth Estates and Berkeley Homes cases, although, as I have already explained, the latter provides no detailed guidance.
88. The question posed by Farwell J in the Chatsworth Estates case was (transposed to the facts of this case), "have the Turners or their predecessors in title, by their acts and omissions, represented to the Scotts and the Pryces that the covenants in the Deed Poll are no longer enforceable and that they are therefore entitled to construct properties in their rear gardens regardless of the restrictions contained in those covenants?" The answer is, in my view, plainly not. Whatever was done or not done by the Turners' predecessors cannot have had any effect on either the Scotts or the Pryces: as I have already explained, when giving evidence both Mr. Scott and Mr. Pryce denied all knowledge of the covenants in the Deed Poll until Mr. Turner alerted them to those covenants in 2002 or 2003. From the time of their first becoming aware of the terms of the covenants, the Scotts and the Pryces can have been in no doubt that the Turners considered those covenants to be enforceable, and were determined to enforce them.
89. I also consider - applying the test suggested by Buckley LJ in Shaw v. Applegate - that it is not dishonest or unconscionable for the Turners to seek to enforce the covenants. Mr. Turner told me that at the time of his purchase he was advised that the covenants prevented any development of the rear garden, and he therefore did not consider the matter further. And the Scotts and the Pryces ought to have been alerted to the existence of the covenants before they purchased their respective properties (one assumes their respective conveyancers were alerted to them), because there was clearly something in the deeds which alerted the Land Registry to the existence of the covenants.
90. For all these reasons I therefore reject the defence based on the acquiescence in previous breaches by the Turners' predecessors in title.

(e) Whether any other factors exist such that injunctive relief should not be granted to the Turners

91. The Scotts and the Pryces rely on one particular matter when submitting that injunctive relief should not be granted to the Turners. They allege that the Turners themselves, when they recently made alterations to their own home, breached the covenants in the Deed Poll by not maintaining the 12 foot frontage building line as measured from the footpath.
92. Mr. Owen calculates that the Turners' recently rebuilt garage, which is attached to one side of their dwelling house, is now situated some 17 feet from the footpath, and the first floor accommodation above the garage has been set back by a further 6 inches.
93. Mr. Owen's report discloses that a breach of the 12 foot building line is his most common example of breach of the covenants in the Deed Poll on the Northfield Estate, although he does not himself describe this type of breach as major Mr. Snow gives the most likely reason for this type of infringement (if such it is) in his report, viz.:

"At the time of the wording of this covenant the problem of parking a car on a space less than 16 feet was not anticipated and this has, in my opinion, been the reason for breaches of this type ..."

There certainly appears to be little room between the pavement and the rear of the Turners' saloon vehicle parked in the (now 17 feet long) driveway at number 21, in the photograph which Mr. Owen has included in his report.

94. Assuming against the Turners that the covenant to maintain the building line is enforceable against them and that their recent alterations have been carried out in breach of that covenant, it does seem to me that such a breach is in all the circumstances de minimis when compared with the construction of three new and additional dwelling houses as proposed by the Turners and the Pryces. It is in my view certainly not such a circumstance as ought to incline me against the grant of equitable relief which I might otherwise be minded to grant.
95. I have given more general consideration to whether this is an appropriate case for an award of damages in lieu of an injunction. Mr De Waal referred me to the decision of the Court of Appeal in Regan v. Paul Properties DPF No. 1 Ltd [2007] Ch 135, allowing the claimant's appeal in that case from a decision of my own in a right to light case in which I had awarded damages in lieu of an injunction.
96. In para. 36 of his judgment in Regan, Mummery LJ summarised the principles to be derived from the judgments in Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch 287. I have considered each of those principles, and have noted in particular the first, viz:

"A claimant is prima facie entitled to an injunction against a person committing a wrongful act... which invades the claimant's legal right."

And the fourth, viz.:

"The judicial discretion to award damages in lieu ... should not be exercised to deprive a claimant of his prima facie right "except under very exceptional circumstances""

97. I have also had regard to the potentially relevant circumstances listed under Mummery LJ's fifth principle, and, having done so, do not believe that exceptional circumstances exist in this case, still less circumstances which are sufficiently exceptional to deprive the Turners of their prima facie right to an injunction. In particular I do not consider that the threatened injury to the Turners' rights is small; I am sceptical that the threatened injury could be accurately estimated in money (and no evidence that it could be was put before me at trial); and I do not consider that it will be oppressive to the Scotts and the Pryces to grant an injunction against them: they will remain free to enjoy their respective properties or to sell them, to the same extent as they were able to in the 10 years or more before they conceived the idea of building in their rear gardens.
98. For all these reasons, in my judgment the right course is to grant the Turners a final injunction precluding the Scotts and the Pryces, whether by themselves their servants or agents or otherwise howsoever, from constructing any dwelling houses on the properties known as 18 and 20 Woodland Road, Northfield, Birmingham which are additional to the dwelling houses which were in existence when they respectively purchased those properties. I shall leave it to counsel to submit a draft order.