McMorris v Brown et Al
| Jurisdiction | UK Non-devolved |
| Judge | Lord Cooke |
| Judgment Date | 30 July 1998 |
| Docket Number | Privy Council Appeal No. 9 of 1998 |
| Court | Privy Council |
| Date | 30 July 1998 |
Privy Council
Lord Hoffmann,
Lord Mustill,
Lord Cooke,
Lord Hutton
Sir John Balcombe
Privy Council Appeal No. 9 of 1998
Real Property - Restrictive Covenants — Whether the Court of Appeal was correct in modifying restrictive covenant — Section 3 (1) of the Restrictive Covenants (Discharge and Modification) Act No. 2 of 1960 — Court found that the burden of proving that the restrictive covenants if modified would disturb the pattern of family houses was discharged — Appeal allowed.
On 27th July 1998 their Lordships indicated that they would humbly advise Her Majesty that the appeal should be allowed and the judgment of Chester Orr, J. dismissing the application restored; that the respondents must pay the appellant's costs before the Board and in the courts below; and that they would deliver their reasons later, as they now do.
In this appeal from Jamaica the parties own and have their homes on adjoining properties, each of about three-quarters of an acre, in Forest Hills, a residential area of almost 600 acres in the suburbs of the City of Kingston. The properties are two of six lots together making up a block within which the registered titles are subject to and enjoy the benefit of a number of restrictive covenants. Two of these covenants are directly relevant to the present case, namely:–
“1. There shall be no subdivision of the said land.
2. No building of any kind other than a private dwelling house with appropriate outbuildings appurtenant thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling house and outbuildings shall in the aggregate not be less than One Thousand Pounds.”
The present respondents, Mr. and Mrs. Brown (the applicants), own lot 12. They wished to subdivide it into two lots of about 15,000 and 16,000 square feet respectively, and to build on the second lot so created a three-storey, five-bedroom, four-bathroom house, with the result that on the land being hitherto lot 12 there would be two substantial houses. In fact the second house has now been built, in the circumstances hereinafter explained, and what is in issue is whether the first covenant should be modified to permit the subdivision. Having obtained the necessary town planning approval, the applicants applied to the Supreme Court for modification of that covenant. The application came to be opposed by the present appellant, Mr. McMorris (the objector), whose land is lot 12A.
In a judgment delivered on 29th July 1994 Chester Off, J. dismissed the application, but in judgments delivered on 20th December 1995 the Court of Appeal (Carey, Forte and Gordon, JJ.A.) allowed an appeal by the f applicants, ordering that the first covenant be modified to read as follows:–
“There shall be no subdivision of the said land … SAVE and EXCEPT into two lots for residential purposes.”
By leave of the Court of Appeal, the objector now appeals to Her Majesty in Council, seeking restoration of the Supreme Court decision.
The jurisdiction to modify such covenants is conferred in Jamaica by section 3(1) of the Restrictive Covenants (Discharge and Modification) Act (No. 2 of 1960) which provides:–
“3.–(1) A Judge in Chambers shall have power, from time to time on the application of the Town and Country Planning Authority or of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) on being satisfied –
(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the judge may think material, the restriction ought to be deemed obsolete; or
(b) that the continued existence of such restriction or the continued existence thereof without modification would impede the reasonable user of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction, or, as the case may be, the continued existence thereof without modification; or
(c) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or
(d) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction:
Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction, unless the person entitled to the benefit of restriction also suffers loss in consequence of the barge or modification, nor shall any compensation be payable in excess of such loss.”
This section is modelled on section 84(1) of the Law of Property Act, 1925 (U.K.) as that subsection stood until amended and recast in 1969. One of the changes made in England in 1969 was a liberalisation of the ground corresponding to the Jamaican ground (b). For “the reasonable user” there was substituted in England “some reasonable user.”
The Jamaican provisions were considered by their Lordships' Board in Stannard v. Issa [1987] A.C. 175 in a judgment delivered by Lord Oliver of Aylmerton, where it was accepted that under the Jamaican (b) as it stood then and still stands the applicant has the burden of showing that the user permitted by the covenant is no longer reasonable and that another user which would be reasonable is impeded. In that case there was no evidence of any difficulty in developing the land or disposing of it for development within the framework of the existing restrictions. Thus they did not sterilise the land. It was not enough that the applicant's proposal was one which would lead to a reasonable user of the land, having regard to current pressures of population and current notions of optimum density.
To see the present case in perspective it is important to remember that (b) remains unamended in Jamaica. One consequence of this statutory position is that some of the statements in the applicants' affidavits have little relevance to the exercise of the jurisdiction — such as averments that there is a severe shortage of prime land for residential purposes in the area; that approximately half an acre at the rear of their land is under-utilised; and that to subdivide the land will make it more useful and assist their family in overcoming the hardships occasioned by the housing shortage and high land and housing costs. The Jamaican legislature has not seen fit to make considerations of that kind a ground for discharge or modification of covenants under the statute, although no doubt they will rightly encourage the exercise of the discretion once a ground is made out. Their relevance to the prescribed grounds is at best limited. As to any suggestion that they might be relevant under (a), a restriction tending to preserve the quality of a particular environment is clearly not to be deemed obsolete because it frustrates proposals which, were it not for the covenant, would seem entirely reasonable.’
So it is not surprising that, faced with an omnibus application invoking all four grounds, the four judges in Jamaica who have sat in the case were unanimous in rejecting (b) and three of them rejected (a) also. The exception was Gordon, J.A., who considered that “the neighbourhood” for the purposes of the Act extended to the nearby development known as Shaker Heights. He said that, since the deposit of the subdivision plan of Forest Hills in 1949, the neighbourhood as defined by him, while consisting predominantly of single dwelling houses, had changed in character because many of those in Shaker Heights were on much smaller plots than originally provided: instead of a house to an acre, there were in parts four to an acre.
Their Lordships find it unnecessary to determine the precise boundaries of “the neighbourhood”. Whether or not it extends to the whole of Shaker Heights, or at least to certain properties there (as the judge at first instance thought), the salient fact remains that within the block where the parties have their properties the integrity of the covenants has been intact. Their Lordships do not doubt that, as held by the majority of the Jamaican judges, changes in the character of the neighbourhood have not rendered the restrictions in the block obsolete. Indeed Mr. Morrison Q.C. for the respondents did not argue otherwise on the present appeal. The argument on the appeal turned on grounds (c) and (d).
In order to deal with these grounds it is necessary to recount some history. In 1990 Mr. Brown told Mr. McMorris that he intended to subdivide his land. As to the reaction of Mr. McMorris the affidavits are in conflict. According to him, he expressed total disagreement. According to Mr. Brown, Mr. McMorris indicated that he had no objection as long as Mr. Brown constructed a bungalow on the land, and even gave Mr. Brown the names of an architect and of a building society as a suggested source of finance. While this conflict cannot now be resolved, it is to be noted that the house later constructed...
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