CASE NAME AND REFERENCE

Williams v Johnson [2015] EW Misc B45 (CC)

SUMMARY

The claimant sought to enforce restrictive covenants in an original conveyance against the defendant relating to the construction of buildings, the use of land and prevention of nuisance. The County Court determined that the claimant was entitled to damages and injunctions in some but not all of its claims.

FACTS

The claimant and first defendant were neighbours. In 1990, part of the land known as "Wells Farm" was sold by the parents of the claimant to the defendant (this land referred to as "Lychcroft").

Clause 2(i) of the conveyance provided that "no building shall be erected upon [Lychcroft]...without the previous consent in writing of the vendors." The claimant alleged that in 1999 the defendant had erected a shed on Lychcroft, which was later followed by the erection of a further poultry shed in 2005, both in breach of clause 2(i).

Clause 2(ii) of the conveyance provided that "no trade or business shall be carried upon [Lychcroft] or any part thereof nor shall the same be used otherwise than as a private dwellinghouse." The defendant had used Lychcroft as a farm and had even filed accounts in respect of such. The claimant argued that this was in breach of clause 2(ii).

Clause 2(iii) of the conveyance provided "not to do or keep or suffer to be done or kept on [Lychcroft] or any part thereof any act or thing which may become a nuisance annoyance or cause inconvenience to the vendors their successors in title owners and occupiers for the time being of [Wells Farm]..." The claimant claimed this covenant had been breached in three ways:

  • First, through the defendant's conduct and harassment (including trespass on the claimant's land) and the claimant cited ten instances of such.
  • Second, the claimant argued that the defendant had caused flooding on the claimant's property by the construction of a lake in 1993-94, which he subsequently failed to ensure was well maintained and operative, and was actionable as a nuisance.
  • Third, the claimant asserted that the defendant had carried out the process of building on its own land in such a disorganised and inefficient manner that this constituted an actionable nuisance.

ISSUES

  1. Whether the defendant had breached clause 2(i) of the original conveyance relating to the construction of buildings;
  2. whether the defendant had breached clause 2(ii) of the original conveyance relating to the use of land; and
  3. whether the defendant had breached clause 2(iii) of the original conveyance relating to the prevention of nuisance, in particular as regards to:(i) conduct and/or harassment (ii) the cause of flooding on the claimant's property; and (iii) the tipping of rubble on the defendant's property.

DECISION

  1. The County Court rejected the defendant's attempt to challenge the claim on the basis of estoppel and found that the defendant was in breach of covenant in erecting two new sheds. The County Court awarded nominal damages, which were deemed equitable in the circumstances.
  2. The Court rejected the defendant’s argument that the user covenant not to use Lychcroft for a trade or business should be qualified so as to include the words “other than farming or associated acts.” The Court found that the wording of clause 2(ii) was clear and did not require interpretation. By undertaking a farm business on Lychcroft, the defendant was in breach of clause 2(ii) of the original conveyance. The court exercised its equitable discretion to refuse the claimant relief by way of injunction but did award damages for breach of the covenant in the sum of £15,000.
  3. In relation to the claim that three aspects of the defendant's behaviour had breached clause 2(iii) of the original conveyance not to cause nuisance, the Court found as follows:
    1. threatening and abusive behaviour - the Court found that there had been instances where the defendant had been a nuisance. However, these were sufficiently minor in nature so as to justify only nominal damages;
    2. causing flooding on the claimant's property - after an extensive review of the defendant's drainage system, the Court held that the claimant had failed to establish a head of claim for damages. However, in relation to one particular drain, the Court ordered that the defendants should re-route an outlet pipe from the lake so as to avoid flooding Wells Farm in the future;
    3. tipping rubble on the defendant's property - the Court held that the defendant's act of tipping rubble and soil on his own property (over a period of three years) constituted an actionable nuisance. The Court held that a reasonable period of such works would have been around twelve months and the claimant was awarded damages of £500 accordingly.