Re Woodhouse and another’s application

Restrictive covenant – Enforcement – Application to discharge restrictive covenants under section 84 of Law of Property Act 1925 – Objectors claiming benefit of restriction in 1933 conveyance against use of conveyed land for trade without consent of vendor – Whether restriction ceasing to have effect on death of vendor or becoming absolute – Decision for objectorsThe applicants applied, under section 84(1) of the Law of Property Act 1925, to discharge restrictive covenants that affected their land. The covenants were contained in a 1933 conveyance to the applicants’ predecessor in title in the form of restrictions that benefited the adjoining and neighbouring lands of the vendor. At the time of the conveyance, the vendor’s adjoining lands had consisted of a house and garden with an orchard and 22 acres of agricultural land. By the date of the application, the agricultural land had been fully developed with housing. Objections to the discharge of the restrictions were submitted by the owners of some of the new houses and by the owners of part of the original house. Some of the objectors objected to the discharge of the fourth restriction, which provided: “No building shall at any time without the previous consent of the Vendor be used for any trade manufacture or business or otherwise than as a private dwellinghouse and no hoarding or advertisement shall ever be erected or displayed…”.The applicants disputed, inter alia, the objectors’ right to enforce the fourth restriction. A hearing was conducted to determine, under section 84(3A), which objectors should be admitted to oppose the application. In respect of the fourth restriction, the applicants did not dispute that the objectors were entitled to enforce the second part relating to hoardings and advertisements. However, they contended that the first part, relating to consent for trade use, no longer had any effect because the vendor whose consent was required was deceased. The objectors argued that the vendor’s death had rendered the prohibition in the restriction absolute.Decision: A decision was given in favour of the objectors.Where a restriction prohibited certain works or uses without the consent of a named person who was no longer alive, the prohibition might have become either absolute or of no further application. All would depend on the proper construction of the instrument in question. Since the fourth restriction referred only to the consent of “the Vendor” and not also to the vendor’s heirs and assigns, that indicated that the original vendor was the only person who could consent and that, the vendor having died, the dispensing provision ceased to apply: Bell v Norman C Ashton Ltd (1956) 7 P&CR 359 applied. It would be surprising if, while a prohibition against hoardings and advertisements was good for all time, the prohibition against trade use terminated with the vendor’s death. The provision for the vendor’s consent did not suggest that the prohibition on trade use was imposed merely for the benefit of the vendor. Rather, it was a prohibition that applied “at any time” but with a dispensing power on the part of the vendor. When the vendor died, the dispensing power ceased to apply and the prohibition became absolute. Accordingly, the fourth restriction subsisted in both its parts, the objectors were entitled to enforce it and the power on the part of the vendor to consent had lapsed.Colin Challenger (instructed by direct access) appeared for the applicants; Martin Playford appeared on behalf of himself and the other objectors, with the leave of the tribunal.Sally Dobson, barrister