Tupholme & Ors v Firth [2015] EW Misc B28 (CC) (17 September 2015)

Tupholme & Ors v Firth [2015] EW Misc B28 (CC) (17 September 2015)

The erection of the proposed bungalow would constitute a nuisance and annoyance within the meaning of the restrictive covenant in clause 3(i) of the 1974 Conveyance, enforceable by the claimants. The building covenant in clause 3(iii) lapsed on the death of the vendor, Mr Taylor, and does not prohibit the construction.

Citation
[2015] EW Misc B28 (CC)
Parties
Claimant: Professor and Dr Tupholme; Claimant: Mrs Newby; Claimant: Mr and Mrs Parker; Claimant: Mr and Mrs Howard; Defendant: Mr Firth
Jurisdiction
England and Wales
Judgment Date
17 September 2015
Procedural Posture
High Court Civil Claim / Judgment After Trial
Outcome
Declarations granted in favour of claimants on annoyance covenant; declaration for defendant on building covenant
Legal Topics
Restrictive Covenants, Nuisance, Annoyance, Building Consent, Interpretation of Contracts
Property Law Equity Restrictive Covenants Nuisance Annoyance Building Consent Interpretation of Contracts

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Parties

Professor and Dr Tupholme

Claimant

Mrs Newby

Claimant

Mr and Mrs Parker

Claimant

Mr and Mrs Howard

Claimant

Mr Firth

Defendant

Procedural Posture

High Court Civil Claim / Judgment After Trial

Legal Issues

  1. 1 Whether construction of a bungalow at 2 Heather View breaches restrictive covenants against building and nuisance/annoyance
  2. 2 Whether consent by the vendor's surveyor was valid after the vendor's death
  3. 3 Whether the building covenant lapsed on the death of the vendor

Ratio Decidendi

The erection of the proposed bungalow would constitute a nuisance and annoyance within the meaning of the restrictive covenant in clause 3(i) of the 1974 Conveyance, enforceable by the claimants. The building covenant in clause 3(iii) lapsed on the death of the vendor, Mr Taylor, and does not prohibit the construction.

Court Disposition

Declarations granted in favour of claimants on annoyance covenant; declaration for defendant on building covenant

Orders

  • Declaration that construction of the bungalow is prohibited by the annoyance covenant in clause 3(i)
  • Declaration that the building covenant in clause 3(iii) lapsed on the death of Mr Taylor and does not prohibit construction