Summary

The construction and/or use of part of a property as a roadway infringed a restrictive covenant contained in clause 2 of a conveyance which affected the property.

Facts

The appellants (M) appealed against a decision that the construction and use of a roadway would not infringe a restrictive covenant contained in a 1964 conveyance. M owned the freehold of a property, No 30, and had the benefit and protection of a restrictive covenant contained in clause 2 of the conveyance. The respondent (J) had contracted to purchase the freehold of the adjoining property, No 28, from the current owners. Subject to obtaining the relevant planning permission J proposed to redevelop No 28. It was accepted by M that the demolition of the present dwelling house and the erection of a new house and garage would not infringe clause 2(a) or (b). The dispute was in relation to the construction and/or use of a roadway on the site of part of the garden of No 28, as the means of access to a proposed ten-house development on the adjoining site. The judge held that the construction and use of such a roadway would not infringe clause 2 of the conveyance. M submitted that the construction and/or use of part of No 28 as a roadway would constitute a breach of clause 2(b). J contended that the expression "the same as a private residence only" in clause 2(b) applied only to a building and did not apply to "the land hereby conveyed or any part thereof". Further, J submitted that clause 2(b) would not be infringed because it would not be the owner or occupier of No 28 who would be using the roadway; it would be the occupiers of, and visitors to, the houses on the neighbouring development site.

Held

(1) The expression "the same" towards the end of clause 2(b) applied to "the land hereby conveyed or any part thereof or any building or erection now or at any time hereafter erected thereon". The fact that clause 2(b) was intended to bind No 28 was indicative of the fact that no part of No 28 was to be used for a purpose outside clause 2(b), and therefore no part of No 28 was to be used other than as a private residence, from which it followed that no part of No 28 was to be used for the roadway. In the circumstances, the construction and/or use of the roadway would be in breach of clause 2(b). (2) (Obiter) If the use of part of No 28 for the projected roadway was permissible, then the construction of a roadway would not be forbidden by clause 2(b). Further, clause 2(b) prevented the erection of the lamp-posts on the roadway as there could be no doubt that the lamp-posts did not fall within the expression "one two-storey private dwelling house with all the necessary outbuildings and garage". Therefore, "the erection" of any item or thing was precluded unless it fell within the expression.