Smith v Garrard

A restrictive covenant prohibiting vehicles being parked on a roadway over which others have rights of way is not necessarily an absolute prohibition. Its meaning depends on the wording read in the context of the transfer and the circumstances known to the parties. Where the covenant also prohibits obstructing free passage, the parking prohibition may be confined to parking that obstructs the exercise of those rights. A covenant directed to protecting rights of way should not be used to control appearance or annoyance where separate covenants address those matters.

Mr Martin Smith appealed from an order of His Honour Judge Norris QC in the Birmingham County Court. The judge awarded him £100 for breach of a covenant against causing annoyance, but dismissed his claim for an injunction based on paragraph 10 of the Fourth Schedule to a 1997 transfer.

Paragraph 10 prohibited parking vehicles or placing articles on the roadway and obstructing the free passage of the roadway over which other persons had rights of way. Mrs Jeanne Garrard and visitors parked in an area shown as parking space on an approved development plan. The cars were visible from parts of The Hall but did not obstruct access. The central issue was whether the covenant imposed an absolute prohibition on parking or applied only where parking interfered with rights of way.

1. Appeal dismissed. The costs appeal fell with the substantive appeal.
2. Paragraph 10 had to be construed by considering the words used in the 1997 transfer as a whole and against the background knowledge reasonably available to the parties when the transfer was executed. The court applied the approach identified in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, at 912H–913A.
3. As a matter of syntax, paragraph 10 contained three restrictions: parking vehicles on the roadway, placing articles on the roadway, and obstructing free passage. The words “over which other persons have rights of way” qualified the relevant parts of the roadway. In context, they indicated that parking was prohibited where it would obstruct the exercise of rights of way, whether those rights arose under the 1997 transfer or another conveyance.
4. The covenant’s purpose was to secure the use and enjoyment of rights of way. It did not impose an absolute prohibition on parking that caused no interference with those rights. Paragraph 6 separately addressed annoyance, while paragraph 11 dealt with visible aerials and satellite-reception devices. Those provisions reinforced the conclusion that paragraph 10 was not directed to aesthetic concerns or non-obstructive annoyance.
5. The parking shown on the development plan did not obstruct access. The injunction was therefore rightly refused. The appeal was dismissed with costs assessed at £4,817.50 plus VAT.

• Court of Appeal (Civil Division): The appeal from the Birmingham County Court was dismissed. The costs appeal fell with the substantive appeal.
• Birmingham County Court: His Honour Judge Norris QC awarded £100 for breach of the covenant against annoyance, dismissed the remaining claim, and ordered the claimant to pay 90 per cent of the defendant’s costs.