Small v Oliver & Saunders (Developments) Ltd.

Small v Oliver & Saunders (Developments) Ltd.

Mr Small has the benefit of the restrictive covenant by annexation to his land, not by building scheme. The use of the land for access to the new development constitutes a breach of the covenant. However, a permanent injunction is refused as it would be oppressive; instead, damages in lieu are awarded, calculated as a reasonable share of the development profit divided among entitled parties.

Parties
Claimant: Hugh Small; Defendant: Oliver & Saunders (Developments) Limited
Jurisdiction
England and Wales
Judgment Date
25 May 2006
Procedural Posture
Civil / Judgment
Outcome
Claim allowed in part; injunction refused; damages awarded in lieu.
Legal Topics
Restrictive Covenants, Building Schemes, Annexation of Covenants, Damages in Lieu of Injunction, Land Development
Property Law Restrictive Covenants Building Schemes Annexation of Covenants Damages in Lieu of Injunction Land Development

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Parties

Hugh Small

Claimant

Oliver & Saunders (Developments) Limited

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether Mr Small has the benefit of the restrictive covenant by annexation or building scheme
  2. 2 Whether Oliver & Saunders breached the restrictive covenant by using land for access to a new development
  3. 3 Whether a permanent injunction or damages in lieu should be granted

Ratio Decidendi

Mr Small has the benefit of the restrictive covenant by annexation to his land, not by building scheme. The use of the land for access to the new development constitutes a breach of the covenant. However, a permanent injunction is refused as it would be oppressive; instead, damages in lieu are awarded, calculated as a reasonable share of the development profit divided among entitled parties.

Court Disposition

Claim allowed in part; injunction refused; damages awarded in lieu.

Orders

  • Permanent injunction refused
  • Damages of £3,270 awarded to Mr Small