[2024] UKUT 112 (LC)

The objectors are the owners of 14 properties and they fall into three groups.

The first group comprises just one objector, Mr Ross Mackenzie. He owns Forest House, which Mr and Mrs Morley bought in 1966. The applicant accepts that he has the benefit of the covenants in the 1966 and 1967 conveyances. As we noted above, Mr Mackenzie’s registered title also includes the road on the Green Land. He explained that he bought Forest House and the road as a single property, so at some point before his purchase the company must have conveyed or transferred the road to the then proprietor of Forest House.

Next are Mr and Mrs Koak of 13 High Elms, Mr and Mrs Stohr of 14 High Elms, Mr and Mrs Regan of 15 High Elms, Mrs Morley of 1 Forest House Fields, and Mr and Mrs Chaudhary of 17 High Elms. They all have properties on the Pink Land, sold by the Morley family in the 1970s – we refer to them as “the 1970s houses”. Of those, Mrs Morley is in a special position; if we have understood correctly she is the daughter of the 1966 purchasers of the Pink Land, and grew up in Forest House. The applicant accepts that she has the benefit of the 1966 and 1967 covenants. The rest of the objectors in this category own properties on the Pink Land and we see no reason why they do not have the benefit of the 1966 covenants, taken for the benefit of “the Pink Land and every part thereof”.

The remaining objectors each own houses on the Green Land: seven of the town houses, and the bungalow at number 1 owned by Mrs Diggins. None of these properties has the benefit of the 1966 covenants, which were taken for the benefit of the Pink Land only. Ms Cunningham argued that they do not have the benefit of the 1967 covenants either. She took the view that those covenants were taken only for the benefit of the vendor company, High Elms Properties Limited, in order for it to control the development as it was laid out. We see no substance in that argument. The covenant is expressed to be “For the benefit and protection of the remainder of the Company’s High Elms Estate …or any part or parts thereof”, and the company’s estate was the Green Land. It is annexed to the land by section 78 of the Law of Property Act 1925 (Federated Homes Limited v Mill Lodge Properties Limited (1980) 39 P & CR 576). With the exception of the covenant requiring the consent of the company itself, the 1967 covenants clearly benefit the Green Land and this group of objectors has the benefit of them.