Shepherd Homes Ltd v Sandham

JurisdictionEngland & Wales
Judgment Date1970
Date1970
Year1970
CourtChancery Division
[CHANCERY DIVISION] SHEPHERD HOMES LTD. v. SANDHAM [1969 S. No. 6523] 1970 May 8, 11 Megarry J.

Injunction - Mandatory injunction - Interlocutory - Breach of negative covenant by erection of fence - Covenantee's application for mandatory injunction - Covenantor's proposed application to Lands Tribunal for modification of covenant - Court's discretion to grant mandatory injunction on motion - Mandatory compared with prohibitory injunctions.

A development company laid out a housing estate on an “open plan.” There were no fences or other erections in front of a building line formed by the front elevations of the houses. The estate abutted on open land and there were repeated incursions of Welsh mountain sheep and horses into the gardens of the houses, causing damage. Certain residents on the estate asked to be allowed to erect fences. One of them, S., in breach of covenant with the company, erected a fence which was in part in front of the building line. The company issued a writ seeking an order for demolition of the fence but made no claim for damages. Four months later, the company sought by motion a mandatory order against S. that he should “forthwith pull down and demolish and remove” the fence By a cross motion, S. sought leave to apply to the Lands Tribunal under section 84 of the Law of Property Act, 1925, and a stay of the proceedings in the meantime.

On the question whether the court would grant a mandatory injunction where there had been a breach of a negative covenant:—

Held, (1) that although the principle stated by Lord Cairns L.C. in Doherty v. Allman (1878) 3 App.Cas. 709, 720, H.L.(I.), relating to the enforcement of a negative agreement by a prohibitory injunction prima facie applied also to mandatory injunctions, it did not apply to them in its full width but was tempered by a judicial discretion based upon whether granting the injunction would have produced a fair result; further, that the grounds for refusing such an injunction included the triviality of any damage done, and any disproportion between the detriment that the injunction would have inflicted on the party enjoined and the benefit that it would have conferred on the other party (post, p. 359A–C).

Dicta of Astbury J. in Sharp v. Harrison [1922] 1 Ch. 502, 512, 515 and Buckley J. in Charrington v. Simons & Co. Ltd. [1970] 1 W.L.R. 725, 730 applied.

(2) That on motion, as contrasted with the trial, the court was far more reluctant to grant a mandatory injunction than a comparable prohibitory injunction, usually requiring a high degree of assurance that at the trial it would appear that the injunction was rightly granted (post, p. 359C, D).

(3) That in the present case it would be wrong to grant the injunction sought, since there had been delay in bringing the motion and it was unclear whether a mandatory injunction would be granted at the trial, and further, on present evidence, there was a bona fide claim by S. for a stay based on substantial grounds, and that that ought to be granted (post, pp. 359H–360A, F–H).

Per curiam. The statement in Halsbury's Laws of England, 3rd ed. (1957), vol. 21, p. 369 founded on Morris v. Grant, 24 W.R. 55, is too wide (post, p. 359D).

The following cases are referred to in the judgment:

Agbor v. Metropolitan Police Commissioner [1969] 1 W.L.R. 703; [1969] 2 All E.R. 707, C.A.

Attorney-General v. Mid-Kent Railway Co. (1867) 3 Ch.App. 100.

Bowes v. Law (1870) L.R. 9 Eq. 636.

Charrington v. Simons & Co. Ltd. [1970] 1 W.L.R. 725; [1970] 2 All E.R. 257.

Cresswell v. Proctor [1968] 1 W.L.R. 906; [1968] 2 All E.R. 682, C.A.

Doherty v. Allman (1878) 3 App.Cas. 709, H.L.(I.).

Elliston v. Reacher [1908] 2 Ch. 374.

Gale v. Abbot (1862) 10 W.R. 748.

Ghey and Galton's Application, In re [1957] 2 Q.B. 650; [1957] 3 W.L.R. 562; [1957] 3 All E.R. 164, C.A.

Hampstead & Suburban Properties Ltd. v. Diomedous [1969] 1 Ch. 248; [1968] 3 W.L.R. 990; [1968] 3 All E.R. 545.

Hanning v. Gable-Jeffreys Properties Ltd. [1965] 1 W.L.R. 1390; [1965] 1 All E.R. 924.

Kilbey v. Haviland (1871) 19 W.R. 698.

Manners (Lord) v. Johnson (1875) 1 Ch.D. 673.

Morris v. Grant (1875) 24 W.R. 55.

Richardson v. Jackson [1954] 1 W.L.R. 447; [1954] 1 All E.R. 437.

Ridley v. Taylor [1965] 1 W.L.R. 611; [1965] 2 All E.R. 51, C.A.

Sharp v. Harrison [1922] 1 Ch. 502.

Woodford v. Smith [1970] 1 W.L.R. 806; [1970] 1 All E.R. 1091.

The following additional case was cited in argument:

Feilden v. Byrne [1926] Ch. 620.

MOTION AND CROSS MOTION.

The plaintiff company, Shepherd Homes Ltd., by its notice of motion dated February 25, 1970, sought against the defendant, William Sidney Sandham, a mandatory order that he should “forthwith pull down and demolish and remove the fence recently erected on the property known as ‘Togwyrdd,’ Heol Clyd, Ty Isaf, Penyrheol, Caerphilly … in advance of the building line of the said property in breach of the covenant in that behalf contained in a conveyance dated November 5, 1968,” made between the plaintiff and the defendant. The defendant had covenanted in clause 3 (f) (iii) that he would not “erect or plant or grow or permit to be erected planted or grown any fence or hedge in advance of the said building line …”

By his cross notice of motion dated March 13, 1970, the defendant sought an order giving him leave to apply to the Lands Tribunal under section 84 of the Law of Property Act, 1925, and staying the proceedings in the meantime.

The plaintiff had bought and laid out an estate on an “open plan.” There were no fences or other erections in front of the building line formed by the front elevations of the houses. There had recently been incursions of Welsh mountain sheep and horses into the gardens of the houses which caused damage. In September, 1969, the defendant erected a fence on his plot partly in front of the building line. The plaintiff company's solicitors sought removal of the fence. During October, 1969, the defendant obtained signatures of other residents to a petition that they would have no objection to the erection of fences on the estate.

On October 23, 1969, the plaintiff company issued a writ against the defendant seeking an order that he should forthwith demolish the fence on his property but no claim was made for damages. No further steps were taken by the plaintiff company until it gave notice of motion on February 25, 1970.

The facts are set out in the judgment.

J. H. G. Sunnucks for the plaintiff company.

T. L. G. Cullen for the defendant.

MEGARRY J. I have before me a motion and cross motion concerning a house on a housing estate known as Ty Isaf, Caerphilly, Glamorganshire. There are 89 plots on the estate. On 82 of them stand leasehold houses, held under 99 year leases; the remaining seven plots are freeholds, sold for the purchaser to erect his own house on the site. Four have been sold, and the remaining three. I understand, are under contract for sale. The motion is by the plaintiff company (which I shall call “the company”) which bought the estate in 1966, and has since laid it out and developed it. The estate is designed on what is called an “open plan,” with (inter alia) no fences or other erections in front of a building line formed by the front elevations of the houses; and the leases and conveyances contain covenants with the company to this effect. The possible existence of a scheme of development (in the Elliston v. Reacher [1908] 2 Ch. 374 sense) has been mentioned but not discussed.

The defendant is a purchaser of a freehold plot on the estate under a conveyance dated November 5, 1968. The conveyance includes a covenant by the defendant to erect a house (which has since been built) and also the building line covenant to which I shall refer. The estate abuts on open land, and although no doubt this provides amenities in some respects, a serious disadvantage has now appeared, in that for some months there have been repeated incursions of sheep (and Welsh mountain sheep at that) into the gardens of the houses. Recently, the invading sheep have been augmented by some horses; and it seems clear that the damage to the gardens done by these animals is no trivial matter.

In August, 1969, a number of residents on the estate signed a petition asking to be allowed to erect fences because of the damage done by the sheep. On August 18 the company's solicitors replied, suggesting proceedings against the farmers, and stressing the desirability of the open plan, but saying that provided there was unanimity between the owners and occupiers of all the houses on the estate on all the details, the company would allow a departure from the open plan. In the first few days of September the defendant erected a fence on his plot, the north-westerly part of which admittedly stands in front of the building line and so is in breach of his covenant. Although the defendant says that it was “in October” that the company objected to his fence, it was in fact on September 11 that the company's solicitors wrote to the defendant's solicitors seeking the removal of the fence; and thereafter there were further exchanges of letters.

At some time in October the defendant obtained many signatures to a petition, stating that the signatory was a “resident” on the estate, that he had been unduly inconvenienced by sheep roaming on to his property, and that “I have no objection to the fence erected around” the plaintiff's property. The defendant's affidavit states that this signified the support of “every single one of the 79 owners of houses on the estate,” and he produces the document, “signifying,” he says, “the support of the said 79 owners, comprising every single house-owner on the estate.” The document is not altogether convincing. 86 lines have been more or less completed, but one of these has, in the place for a signature, the words “not in,” and in about 10 cases there are two signatures for the same address: indeed, Mr. T. D. Rogers, of 4 Bryn Siriol, appears to have signed twice, once on p. 2...

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274 cases
12 books & journal articles
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    ...327, 329 Shepherd Homes Ltd v Sandham (No 2) [1971] 1 WLR 1062, [1971] 2 All ER 1267, 22 P & CR 835 251 Shepherd Homes Ltd v Sandham [1971] Ch 340, [1970] 3 WLR 348, [1970] 3 All ER 402 315 Shiloh Spinners Ltd v Harding [1973] AC 691, [1973] 2 WLR 28, [1973] 1 All ER 90, HL 20, 21, 242 ......
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    ...and any subsequent court, knows what was expected of the defendant to be in compliance? 1 Shepherd Homes Ltd. v. Sandham (1970), [1971] Ch. 340 at 351, Megarry J. 2 See Films Rover International Ltd. v. Cannon Film Sales Ltd. , [1987] 1 W.L.R. 670 (Ch.) [ Films Rover ]; and Businessworld Co......
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