Peter Livett & Anor v S Hennings & Ors

A building scheme will not be inferred merely because a developer imposed similar restrictive covenants across a residential development. The scheme must apply to a defined area, known to purchasers, and the covenants must have been intended to be mutually enforceable between owners within that area.

Where the conveyance does not identify the relevant estate, a lost or uncertain plan and inconclusive historical material will not establish the required area. Nor does wording which binds successors to the burdened land establish who has the benefit of the covenants. Cogent evidence is required to show that covenants were intended to benefit all lots rather than only land then retained by the vendor.

The applicants owned 2 Woodland Way, Petts Wood. Their land was subject to restrictive covenants preventing more than one dwelling house and restricting nuisance. Having obtained planning permission to replace their house with two houses, they applied under section 84 of the Law of Property Act 1925 to discharge or modify the covenants.

The objectors owned nearby properties which had been sold before the applicants’ plot. They could object only if they had the benefit of the covenants through a building scheme. The Tribunal therefore determined the preliminary issue of entitlement to object.

The central issue was whether the evidence established a building scheme affecting 2 Woodland Way, including a defined area and an intention that the covenants be mutually enforceable between owners.

1. The objectors were not entitled to object. They had not proved a building scheme under which they enjoyed the benefit of the restrictive covenants affecting 2 Woodland Way.

2. Applying the characteristics stated by Lewison LJ in Birdlip v Hunter [2016] EWCA Civ 603, a building scheme requires a defined area, known to purchasers, and covenants intended to be mutually enforceable between the owners of properties within it. Common ownership was accepted, but the necessary defined area and mutuality were not established.

3. The 1931 conveyance referred generally to an “Estate Plan”, but that plan could not be identified. The available plans did not establish either the land owned by the vendor at the relevant time or the area to which a scheme was said to apply. The evidence left open materially different possibilities, including Petts Wood East, the wider option land, or a single lot. The defined area was therefore neither identified in the conveyance nor ascertainable from extrinsic evidence.

4. Similar restrictive covenants across Petts Wood East did not by themselves create a building scheme. The conveyance expressed the benefit of the covenants as belonging to the vendor and its unsold land. Words binding the conveyed premises into whosever hands they might come concerned the continuing burden, not the persons entitled to enforce it. Although one nuisance covenant referred to other plots in the estate, that isolated provision could not establish estate-wide mutual enforceability.

5. The 1928 auction conditions suggested an intended estate-wide scheme for lots sold at that auction. They did not establish the terms or intentions governing the separate 1931 sale of 2 Woodland Way. The objectors had not produced cogent extrinsic evidence capable of curing the deficiencies in the conveyance.

6. The Tribunal did not decide the substantive section 84 application. It directed that the application should proceed to determination of jurisdiction and discretion.

not stated in the judgment.