The Restrictive Covenant in the Control of Land Use

Donald L. Sabey, Ann R. Everton

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138366190
• eBook ISBN: 9780429773013
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

First published in 1999, this book breaks new ground by treating the restrictive covenant from the aspect of the control of land use. At its heart is a detailed account of the discharge or modification mechanism, a system of practical importance to professionals in law, planning and land management. This central component is furthered by an historical account of the development of the concept from Tulk v Moxhay (the seminal case of 1848) to the present and by an assessment of its future in a legal system dominated by planning and environmental control. It is a study of the way in which a particular equitable doctrine has grown from simple beginnings to become a tool of considerable practical importance, enabling it to meet changing social and economic needs. It charts the growth of a concept, wherein principles of private and public law come together in the fields of property and planning and gives some pointers to possible reform of the law and the future role of the restrictive covenant.

PART I

THE EVOLUTION OF THE LAW OF RESTRICTIVE COVENANTS

1 The Restrictive Covenant before 1926

Introduction

The origin, growth and impact of the doctrine of the restrictive covenant has been admirably summarised by A.W.B.Simpson:¹

The starting point for the modern development of restrictive covenants is, of course, the case of Tulk v Moxhay in 1848; from that decision there has been developed a body of law which proved to be, if not an unmixed blessing, yet of very great importance in regulating the urban development of the country before the introduction of modern planning legislation, for it became possible to impose upon land by private treaty a wide variety of restrictions upon user and development. Today the older system of private regulation continues alongside the modern system of public regulation, and both have their distinctive merits, and their distinctive disadvantages.

With these words Professor Simpson both introduced restrictive covenants and co-incidentally provided an appropriate ‘text’ for an historical analysis of the evolution of the law relating to restrictive covenants affecting freehold land. As he went on to observe, Tulk v Moxhay² was not an entirely new departure and ‘if we are to understand the history of the equitable doctrine we must…examine not only the doctrines of equity but also the doctrines of law on the running of covenants’.

Indeed, to appreciate fully the significance of the development in the law which would flow from Tulk v Moxhay it is necessary to understand first, the influence of Equity upon the rigours of the Common Law doctrine of privity of contract and, second, the position pertaining to covenants immediately prior to the decision - a position that had remained fundamentally unchanged for 300 years.

In the early part of the nineteenth century, ‘privity’ (the doctrine which in a sense confines the concept of contract) became firmly established in the Common Law. In Price v Easton³ decided in 1833, it was made clear that ‘no-one [might] be entitled to or bound by the terms of a contract to which he [was] not an original party’. Although the doctrine survives it has not been unreservedly accepted - its history is obscure, it is subject, inter alia, to the well-founded exception of the notion of the undisclosed principal in agency, and (particularly important in the present context) it clashes ‘with the needs and concepts of the law of property’.⁴

It had long been appreciated that property rights could not be contained by so restrictive an idea as privity. For centuries the Common Law had facilitated the running with the land of the benefit of a covenant⁵ and, likewise, statute and the Common Law had combined in the law of leases to accommodate the running of both the benefit and the burden of covenants.⁶ Such principles, however, could not cover the range of situations in which a perceived need for the enforcement by or against a ‘non-party’ of a land-related covenant might arise. In particular, it did not cover the situation where a purchaser of land had voluntarily accepted a covenant upon purchase, later sold the land to a third party, and the third party then having broken the covenant the original vendor sought to enforce it. Because of the long standing Common Law rule that only the benefit and not the burden might run, the obstacle of privity prevented the enforcement of any such covenant.

It was into this sector of privity’s domain that Equity was to make a spectacular incursion, albeit eventually in respect only of negative or restrictive covenants. As will soon emerge more fully, Equity was able via its crucial decision in Tulk v Moxhay⁷ to distance itself from the stance of the Common Law by granting an injunction to restrain a breach of covenant on the part of a third person into whose hands, with notice of the covenant, affected land had come. In itself, such an effort by Equity to circumvent a Common Law inconvenience was not remarkable. From the 18th century, attempts had been made to limit the impact of privity by resort to the device of the trust, while as far back as the 17th century the Court of Chancery proved itself able to overcome the Common Law view that a right arising under a contract could not be assigned, so as to enable the assignee to seek to enforce the right in his own name. What was to prove remarkable was rather the way in which from humble beginnings Equity’s incursion was to blossom. As time went by the doctrine of the restrictive covenant was to develop into one of great import for land management and further, was not only to contribute significantly to private land law but also to influence, if only indirectly, the public law of planning control.

So far as the law of covenants was concerned the position immediately prior to Tulk v Moxhay may be briefly outlined, a distinction having to be drawn between leaseholds and freeholds; between the original parties and their successors in title; between ‘benefit’ and ‘burden’, and, lastly, between positive and negative covenants.

With regard to leaseholds, the position was that as between the original lessor and lessee, both parties were bound by all covenants by virtue of privity of contract; as between the lessor and an assignee of the lessee’s term, both the lessor and the assignee of the lessee’s term might enforce covenants which touched and concerned the land, both the benefit and the burden running with the land by virtue of privity of estate,⁸ and as between the assignee of the lessor’s reversion and the lessee, both the assignee of the lessor’s reversion and the lessee might enforce covenants which ‘touched and concerned’ the land, both the benefit and the burden in this situation running with the reversion by virtue of certain statutory provisions.⁹

In the case of freeholds, by contrast, the position was that as between the original covenantee and covenantor, both parties were bound by all covenants by virtue of privity of contract, and as between successors in title of the original covenantee and covenantor the benefit of covenants (both positive and negative) which ‘touched and concerned’ the land could run to successors in title of the covenantee,¹⁰ but, and here the distinction is crucial, the burden could not run to successors in title of the covenantor.

The problems raised by the obstacle of privity on the one hand and the position regarding freehold covenants on the other, together fashioned the basic contours of the ground which was to host the new equitable doctrine, upon the development of which we now embark. Naturally, the cases soon to be cited relate in the main to covenants affecting freehold land. However, occasional reference will also be made to cases concerning covenants in ‘long leases’ where a matter of principle is involved which throws light on the way the law relating to covenants affecting freeholds was evolving.¹¹ Of the numerous cases which have been decided on the restrictive covenant those have been selected for reference which show the evolving state of the law in relation to the different stages in the development of land and land use. They are treated chronologically, in two chapters, the first dealing with the growth of the law up to 1925 and the second with the growth thereafter.¹² The former, the current chapter, is in three parts, namely the period leading up to Tulk v Moxhay, the period thence to the end of the 19th century, and the period from the turn of the century to the advent of the Law of Property Act, 1925. The latter chapter comprises two parts, the first embracing the period from 1926 to the end of the 1960’s and the second bringing the history up to date.

As these periods are considered certain basic matters need to be borne in mind.

First, the land management background to the analysis imparts objectives which have influenced its form. Through the cases a study will be made of the doctrine’s origins, evolution, adoption and adaptation with particular reference to:

(a) the promotion and control of development and use through, in particular, the building scheme;

(b) the evolving importance and influence of planning, amenity and environmental issues, and

(c) the continuing relevance of restrictive covenant control through the medium of the statutory procedure for discharge or modification.¹³

Secondly, there is the importance, peculiarly so in the case of the restrictive covenant, of its socio-economic context. The decades in which the doctrine was formed were years of far-reaching change in that they witnessed:

(a) the rapid growth in the population of England and Wales;

(b) the change from a rural to a primarily urban society with the growth of employment in manufacturing and extractive industries and the decline of employment in agriculture;

(c) the improvement in communications, notably as a result of the development of the railways, affording greater mobility and accessibility;

(d) the break up of the large estates resulting in an increase in the number of ‘'landowners’ and a decrease in the size of ‘landholdings’, and

(e) the sheer volume of urban (town) development leading to the need to control building in the interest of public health.

Here were changes to the national fabric fundamental in character and pursued with unprecedented speed. To them the restrictive covenant made its own distinctive contribution....

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Table of Cases
• Foreword
• PART I: THE EVOLUTION OF THE LAW OF RESTRICTIVE COVENANTS
• PART II: THE DISCHARGE OR MODIFICATION OF RESTRICTIVE COVENANTS
• PART III: THE FUTURE FOR RESTRICTIVE COVENANTS
• Appendices