Martin v David Wilson Homes Ltd.

A restrictive covenant regulating the use of buildings on land, or on any part of it, for purposes other than as a private dwellinghouse does not, without clearer wording, limit the number of dwellings that may be erected. The indefinite article is an article, not a number, and its meaning depends on context. References to any buildings and any part may indicate that separate buildings can each be used as private dwellinghouses. Clear covenant wording remains primary. An incomplete factual matrix or an original sale contract requiring construction of a single house cannot displace that meaning. Authorities concerning differently worded covenants turn on their own language and circumstances.

Mr Martin claimed the benefit of restrictive covenants contained in conveyances of plots forming the Donnerville Estate. The respondent developer wished to construct additional houses on parts of plots 2 and 3. The High Court, Chancery Division, Birmingham District Registry, decided that the covenant restricted each plot to one dwellinghouse. The Court of Appeal granted an extension of time and heard the appeal on the preliminary question whether the expression a private dwellinghouse limited the number of dwellings or merely regulated the manner of use. The central issue was the proper construction of the covenant in its wording and factual context.

1. Appeal allowed. The preliminary issue was answered by holding that the expression a private dwellinghouse was a restriction on the manner of use and was not a limitation on the number of dwellings permitted on the plot. Lady Justice Arden agreed with Lord Justice Buxton’s judgment and added reasons concerning the reference to any part of the land.
2. The proper approach to a construction question required consideration of the literal wording, the factual matrix and any relevant authority. The words themselves were the primary source of meaning. Where they produced a fairly clear result, the factual matrix could not be used to impose a different meaning merely because another construction better fitted an asserted development objective.
3. The covenant had to be read as a whole. Clauses referring to any buildings and any dwellinghouse naturally contemplated plurality. The distinction between the five-year planning and appearance control in clause 6(a) and the continuing user restriction in clause 6(c) supported that reading. The words referring to buildings erected on the land or on any part thereof indicated that buildings on separate parts of the land were contemplated. The indefinite article did not necessarily connote singularity. As Lady Justice Arden observed, each building on each part of the land could therefore be used as a private dwellinghouse, subject to the allowance for garages and necessary outbuildings.
4. Clause 12 of the original sale contract, requiring the initial purchaser to construct a single private dwellinghouse within 18 months, operated between the original contracting parties. It had no direct effect on the construction of the later restrictive covenant, although it formed part of the factual background.
5. The authorities did not compel a different conclusion. Dobbs v Linford concerned the use of an existing dwellinghouse and the subletting of part of it, and was heavily dependent on the wording and user obligation in that covenant. Crest Nicholson Residential (South) Ltd v McAllister involved different wording. The court disagreed with its general suggestion that the indefinite article might itself connote singularity. Its discussion of references to any part or any buildings did not support the respondent’s construction of the present covenant. Costs were to be agreed, failing which they were referred to the hearing judges.

• Court of Appeal (Civil Division) — Appeal allowed. The court substituted an answer to the preliminary issue stating that the covenant regulated manner of use and did not limit the number of dwellings: [2004] EWCA Civ 1027.
• High Court, Chancery Division, Birmingham District Registry — His Honour Judge McCahill QC construed the covenant as restricting each plot to one dwellinghouse. No citation is stated in the judgment.