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The Judicial Committee of the Privy Council Decisions |
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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Lamb v. Midac Equipment Limited (Jamaica) [1999] UKPC 4 (4th February, 1999) URL: http://www.bailii.org/uk/cases/UKPC/1999/4.html Cite as: [1999] UKPC 4 |
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Privy Council Appeal No. 57 of 1997
Keith Rutherford Lamb
Appellant v. Midac Equipment Limited RespondentFROM
THE COURT OF
APPEAL OF JAMAICA
---------------
JUDGMENT
OF THE LORDS OF THE JUDICIAL
Present at the hearing:-
Lord Slynn of HadleyLord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Millett
[Delivered by Lord Nicholls of Birkenhead] ------------------
1. The appellant, Mr. Keith Lamb, lives
in an apartment in a residential block constructed on part of the property
known, or formerly known, as 9 Merrick Avenue, Kingston 10. He has lived there
since 1972. On the other side of the road, diagonally opposite, the respondent
company, Midac Equipment Limited, carries on a garage and repair shop business
at 10 Merrick Avenue. For the past twelve years Mr. Lamb has been seeking to
stop this business use, on several grounds: breach of planning legislation,
nuisance (Mr. Lamb claims his health and the health of his wife have been
seriously damaged by fumes and gases coming from no. 10), and breach of
restrictive covenant. This appeal, on which Midac was not represented before
their Lordships, concerns the last of these grounds of attack.
2. The relevant conveyancing history is
shortly stated. Early in 1947 Frank Watson divided five acres of land owned by
him into thirteen plots. Between about March and November 1947 he sold these
lots to twelve purchasers. Lot no. 9, now known as 10 Merrick Avenue, was sold
to Mary Christie. After intervening transfers this property was bought by
Midac in 1979. Lot no. l, subsequently known as 9 Merrick Avenue, was sold to
Hubert Lowe and his wife, and this lot, again after intervening transfers,
became vested in Mr. Lamb.
3. It seems likely that on the sale of
each plot in 1947 the purchaser entered into a number of covenants with the
vendor Frank Watson, in similar form. In the transfer to Mary Christie, the
predecessor in title of Midac, Mary Christie covenanted with Frank Watson in
these terms:-
"And the said Mary Connelley Christie covenants with the said Frank Merrick Watson his heirs executors administrators transferees and assigns to observe the restrictive covenants set out in the Schedule hereto."
4. The scheduled restrictions included a
restriction to the effect that the land being transferred was to be used for
residential purposes only. This is the restrictive covenant relied on by Mr
Lamb in these proceedings.
5. Mr. Lamb was not the original
covenantee, nor was the benefit of the covenant expressly assigned to him.
Accordingly, to enable him to enforce this covenant he must show either that
the benefit of the covenant was attached ("annexed") to lot no. 1
when the covenant was first entered into by Mary Christie in 1947, so that it
passed automatically to successive owners, or that the covenant was
entered into as part of a scheme of development. Moreover, Midac was not the
original covenantor. So, Mr. Lamb must also show that the covenant was not
just personal to Mary Christie, the original covenantor, but the burden was
attached to lot no. 9, so as to pass to successive owners. Langrin J. held
that Mr. Lamb failed to show annexation of the benefit or the existence of a
building scheme. On appeal, the Court of Appeal (Carey J.A., Gordon J.A. and
Patterson J.A.) reached the same conclusion.
6. It is convenient to consider first
the building scheme point, because this possibility is suggested by the facts
already mentioned, namely, the division of the land of the common vendor into
a number of plots, and the sale of the plots subject to similar restrictive
covenants. The essence of a scheme of development is reciprocity of obligation
and benefit: each purchaser from the common vendor was intended to be subject
to similar obligations, and each was intended to have the benefit of the
obligations entered into by his fellow purchasers. This is now well
established law: see, for instance, Reid v. Bickerstaff [1909] 2 Ch 305. The existence of this intended reciprocity is a matter for proof by
evidence, having regard to the circumstances of each case. Proof, as here, of
the division of land by a common vendor into several lots, and the taking of
similar covenants from each purchaser, goes some way towards the desired goal.
By itself, however, this evidence is insufficient. It leaves open the
possibility that the common vendor took the covenants, not for the benefit of
the purchasers of the several plots, but for his own benefit. He might, for
instance, be the owner of neighbouring land. In the present case this
possibility cannot be dismissed as a fanciful imagining. The plan attached to
Frank Watson's certificate of title relating to the five acres suggests that
the remaining part of no. 17 Waterloo Road, abutting onto the five acres, also
belonged to Frank Watson.
7. Against this background the
difficulty confronting Mr. Lamb's claim is the paucity of evidence about the
circumstances of Frank Watson's sale of his five acres in 1947. It seems
probable that a map showing the proposed subdivision into lots was deposited
with the Council of the Kingston and St. Andrew Corporation, and approved by
the council, under the Local Improvements Act. There is evidence of the sales
of all the lots in 1947, the prices paid and the names of the purchasers. It
is also clear that Mary Christie, and presumably each of the purchasers, knew
she was buying a plot of land in a defined area laid out in lots. But there is
no evidence, such as might be provided by a contract of sale, from which a
court could properly infer that each purchaser knew that purchasers of the
other lots had entered into, or would enter into, similar covenants. The
absence of this evidence is fatal to Mr. Lamb on this part of his case. In the
absence of such evidence there is a lack of material from which intended
reciprocity of obligation and benefit between all the purchasers can be
inferred.
8. The alternative basis for Mr. Lamb's
claim, that the benefit of Mary Christie's covenant is now vested in him, is
that this benefit was annexed to lot no. 1 by the terms in which the covenant
was made. This raises a question of interpretation of the covenant: was the
language apt to show an intention that the benefit of the covenant should be
annexed to the other twelve plots or, at any rate, the other plots not already
sold? The covenant was not expressed to be made for the benefit of land
identified by the covenant itself. As already noted, the covenant was made by
Mary Christie with Frank Watson "his heirs, executors, administrators,
transferees and assigns". The reference to heirs, executors,
administrators and assigns is consistent with the covenant being intended for
the benefit of Frank Watson himself, as distinct from specific property.
Before their Lordships, although apparently not in the courts below, reliance
was placed on the reference to "transferees". This, it was
submitted, showed an intention to benefit land: transferees must be a
reference to the transferees of land, and the covenant was expressed to be
made with these persons as well as Frank Watson's personal successors.
9. Their Lordships are inclined to doubt
whether this expression ("transferees"), standing in conjunction
with a reference to the covenantee's personal successors but otherwise alone
and without elaboration, can be taken to evince an intention to annex the
benefit of the covenant to land. But even if it can be so taken, the
difficulty confronting Mr. Lamb is showing that lot no.1 was part of the land
intended to be benefited. There is too much uncertainty to know for whose
benefit the covenant was taken. On this short ground, the alternative basis
for Mr. Lamb's claim must also fail.
10. For these reasons their Lordships
agree with Langrin J. and the Court of Appeal that Mr. Lamb has not
established that the benefit of the relevant covenant is vested in him.
Accordingly it is unnecessary to consider whether Midac's land is burdened
with the obligations of this covenant. Their Lordships will humbly advise Her
Majesty that this appeal should be dismissed.
