| Date | 5 October 2005 |
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| Judgment | Mortimer v Bailey CA, 29 October 2004 |
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| The Issue | Obtaining a mandatory injunction to remove a building built in breach of a restrictive covenant. |
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| Implication |
Where
there is doubt as to whether a restrictive covenant applies or whether
consent is being unreasonably withheld, it is prudent to get the matter
sorted out before commencing building works. |
printMartin and Jocelyn Mortimer own and occupy a house in Northallerton in North Yorkshire. In August 1992 Colin and Anna Bailey bought the adjacent property. The Mortimers and Baileys became good neighbours and friends. However, in early 2000 the Baileys decided that they wished to extend their house to provide another room on the ground floor. They took advice from an architect who drew up plans to build a single storey extension. In acquiring the property eight years earlier the Baileys had entered into a covenant with their neighbours to the effect that they would not carry out any additions or alterations to their property without the prior written approval of their neighbours, such approval not to be unreasonably withheld. Accordingly the Baileys left a copy of the Architect's plans with the Mortimers. A few days later Mr Mortimer delivered a letter in response. The letter was conciliatory in tone but made it clear that in their view the extension would have an horrendous effect on their property because it would reduce the light and the view from their main room, the kitchen, and would close them in. There were further discussions between them but it was clear that the Baileys thought that the Mortimers' attitude was unreasonable. Taking legal advice they decided to go ahead and to build the extension without referring back to the Mortimers for consent. Planning permission was sought and, despite the Mortimers' objections, granted. Work commenced and the Mortimers' solicitors wrote noting that permission had not been granted for the building works and asking that the work should cease immediately. Legal action was threatened. The Baileys' solicitor responded, taking the view that having regard to the granted planning permission the Mortimers' refusal was unreasonable. They said they had been advised that they should proceed with the construction. Proceedings were commenced at the end of July 2003. Works had already been underway for almost two months. The Mortimers applied for an interim injunction to prevent the works from continuing but according to the evidence only one week's work remained to be done. The Court refused the application to stop the works noting that damages would be an adequate remedy. Later that year the matter proceeded to a trial for a permanent injunction. The judge agreed with the Mortimers. He noted that the view of the sky and the tops of the trees from the kitchen window had been completely obliterated by the extension and described it as oppressive, overpowering and claustrophobic. He was satisfied that there was a direct and tangible loss or diminution in value of the Mortimers' property due entirely to the effect and presence of the extension built without permission. He assessed the financial loss at £20,000 but noted that the claimants had lost far more than the capital value of their home. They were entitled to be recompensed, he considered, for the loss of the benefit of the covenant given to them to protect them from unwanted and intrusive development. However, he did not consider that damages even at a higher level would represent adequate compensation. He concluded that the only just and proper approach was to restore the situation to the status quo. Accordingly he granted the Mortimers a mandatory injunction requiring the Baileys to demolish the extension. He summed up by commenting "the defendants cannot have any sense of injustice with such an order because they chose to proceed in the full knowledge of the covenant and of the Claimants' lack of consent. They took an enormous and costly gamble. They have lost and must return the building to its former state." In October of last year that judgment came before the Court of Appeal. The sole point of appeal was that having waited so long to apply for an interim injunction whilst the works were being constructed, the Mortimers should not be allowed a permanent injunction and should instead be compensated by damages. They relied upon the 1999 case of Gafford v Graham where the judge said "As a general rule, someone who, with the knowledge that he has clearly enforceable rights and the ability to enforce them, stands by while a permanent and substantial structure is unlawfully erected, ought not to be granted an injunction to have it pulled down." In the Court of Appeal Lord Justice Peter Gibson commented that he had some doubt as to whether it was appropriate to say that a person who did not proceed for an interlocutory injunction when he knows that a building is being erected in breach of covenant, but who has made clear his intention to object to the breach and to bring proceedings for that breach. should generally be debarred from obtaining a final injunction to pull down the building. He commented that it might be entirely reasonable for the claimant, having put the other party on notice, to proceed to trial rather than to take the risk of expending money wastefully by seeking interim relief. In this case the position was not the same as in the case of Gafford. There had been no suggestion on the Mortimers' part that they would be willing to receive damages instead of an injunction to have the extension removed. They had warned the Baileys immediately after the commencement of the construction that it was their intention to commence proceedings. Accordingly the appeal was dismissed and the order to pull down the extension upheld.
CJ-0539
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