Ministry of Housing v Lancelot Neville Raynor and Jean Andrea Kathleen Raynorcldren

• Jurisdiction: Jamaica
• Judge: Brooks JA,McDonald-Bishop JA,F Williams JA
• Judgment Date: 06 October 2017
• Neutral Citation: JM 2017 CA 60
• Docket Number: SUPREME COURT CIVIL APPEAL NO 86/2013
• Court: Court of Appeal (Jamaica)
• Date: 06 October 2017

[2016] JMCA Civ 31

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Brooks JA

THE HON Mrs Justice McDonald-Bishop JA

THE HON Mr Justice F Williams JA

SUPREME COURT CIVIL APPEAL NO 86/2013

In the Matter of all that parcel of land part of Cherry Garden in the parish of Saint Andrew being the lot numbered Nine on the Plan of part of Cherry Garden aforesaid deposited in the Office of Titles on the 21 ^st day of November, 1957 of the shape and dimensions and butting as appears by the Plan thereof and being the land comprised in Certificate of Title registered at Volume 965 Folio 215 of the Register Book of Titles.

and

In the Matter of the restrictions affecting the use and development of the said land as well as distance of buildings and boundaries.

and

In the Matter of the Restrictive Covenants (Discharge and Modifications) Act.

Between

Ministry of Housing

Appellant

and

Lancelot Neville Raynor

1 ^st Respondent

and

Jean Andrea Kathleen Raynor

2 ^nd Respondent

Mrs Camaleta Davidson and Miss Ana-Stassia McLeish instructed by Vaccianna and Whittingham for the appellant

W Anthony Pearson instructed by Pearson and Company for the respondents

Property Law - Restrictive Covenants — Whether judge properly defined the neighbourhood to which number 2A belonged for the purpose of determining whether restrictive covenants had been rendered obsolete — Whether judge properly directed his mind as to whether the modification of the restrictive covenants would cause injury to the persons entitled to the benefit of those covenants — Relevant principles to be observed in applying section 3 (1) (d) of the Restrictive Covenants (Discharge and Modification) Act — Restrictive Covenants (Discharge and Modification) Act section 3(1) — Central Mining and Excavating Ltd v. Peter Crosswell and Others (1993) 30 JLR 503 — Stephenson v Liverant (1972) 18 WIR 323 — Ridley and another v Taylor [1965] 2 All ER 51.

Brooks JA

1 The Restrictive Covenants (Discharge and Modifications) Act (the Act) was passed on 25 February 1960. Mrs Davidson, on behalf of the appellant, the Ministry of Housing, submitted that the Act has lagged behind the changes in society and land usage. Learned counsel urged this court to prod the legislature to make changes that are necessary to reflect modern realities.

2 Mrs Davidson made these suggestions as part of her submissions that Rattray J erred when, on 9 March 2012, he refused the appellant's application to modify restrictive covenants affecting premises 2A Mark Way, Cherry Garden, in the parish of Saint Andrew (hereinafter called number 2A). The learned judge made that decision after Mr Lancelot Raynor and Mrs Jean Raynor, objected to the appellant's proposal to build six townhouses on number 2A. The Raynors are the registered proprietors of premises, number 2 Mark Way, which are next door to number 2A, for which the appellant is the registered proprietor. They are among the beneficiaries of the restrictive covenants which are endorsed on the certificate of title for number 2A.

3 The issues which are raised by this appeal are, firstly, whether the learned judge properly defined the neighbourhood to which number 2A belonged for the purpose of determining whether restrictive covenants have been rendered obsolete as was contended by the appellant, and secondly, whether the learned judge properly directed his mind as to whether the modification of the restrictive covenants would cause injury to the persons entitled to the benefit of those covenants. Those issues shall be addressed individually below, but a prior outline of the factual background to the appellant's application would aid understanding of what follows.

The factual background and the relevant evidence before the learned judge

4 The appellant acquired the title to number 2A in March 2007. It hoped to build the townhouses on the land, but several of the restrictive covenants endorsed on the registered title, proved an obstacle to the appellant's plan. One of the restrictive covenants stipulated that only one private dwelling house could be built thereon. The relevant covenants state as follows:

• “1. There shall be no sub-division of the said land.”

• “2. No building of any kind other than one private dwelling house with appropriate out-buildings (of the nature of servants' quarters, garages of a garden tool room) appurtenant thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling house and out-buildings shall in the aggregate not be less than Three Thousand Five Hundred Pounds. Without limiting the foregoing no duplex or other multiple building or flats or any kind designed to or capable to being let separately shall be erected on the said land”

• “3. No building shall be erected on the said land nearer than forty feet to any road boundary nor twenty feet to any other boundary of the said land. No buildings (whether attached to the main building or separate) shall be erected on the said land nearer to any road boundary than the dwelling house to be erected thereon.”

• “9. No fence hedge or other construction of any kind, tree or plant of a height of more than four feet six inches above road level shall be permitted within fifteen feet of any road intersection and the Road Authority shall have the right to enter upon the said land and remove cut or trim any fence erection hedge tree or plant which may be placed or grown upon the said land in contravention of this restrictive covenant without liability for any loss of damage thence arising and the registered proprietor shall pay to the road Authority the cost incurred.”

5 Faced with these restrictions to its development plans, the appellant, very responsibly (nothing less would be expected from such an agency of the State), before taking any steps to develop the premises, applied to have the relevant covenants modified, in order to pave the way for what it wished to do. It filed its application in April 2008. In its amended fixed date claim form, filed on 28 October 2008, it sought to have the relevant covenants modified so that they would read as follows:

• “1. There shall be no sub-division of the said land save and except with the approval of the relevant authority.”

• “2. No building of any kind other than private dwelling houses townhouses and/or apartments with appropriate out-buildings (of the nature of servants” quarters, garages or a garden tool room) appurtenant thereto and to be occupied therewith shall be erected on the said land SAVE AND EXCEPT for the erection of a guardhouse and garbage disposal receptacle which shall not be deemed a breach of the covenant and the value of such private dwelling houses, townhouses and/or apartments and out-buildings shall in the aggregate not be less than Three Thousand Five Hundred Pounds.

• “3. Any dwelling structure or structures to be erected on the said land shall be erected at a distance of not less than Twelve point One metres from the centre line of the roadway. Provided however the erection of a Guardhouse and Garbage disposal receptacle, steps, party walls and eaves shall not be deemed to be a breach of this covenant.”

• “9. No fence hedge or other construction of any kind, tree or plant or a height of more than eight feet six inches above road level shall be permitted within fifteen feet of any road intersection and the road Authority shall have the right to enter upon the said land and remove cut or trim any fence erection hedge tree or plant which may be placed or grown upon the said land in contravention of this restrictive covenant without liability for any loss or damage thence arising and the registered proprietor shall pay to the Road authority the cost incurred.” (Underlining as per the application).

6 The Raynor's filed their notice of objection on 19 January 2009. They asserted that they were entitled to the benefit of the restrictive covenants that are endorsed on the appellant's certificate of title. The Raynors contended that the restrictive covenants were still relevant for protecting the character of the neighbourhood and that any development of the nature proposed by the appellants would injure them in their use and enjoyment of their property.

7 Curiously, the Raynors did not file any affidavit deposing about any of the issues raised in their notice of objection. Consequently, the only evidence that was before the learned judge was that contained in the various affidavits filed on behalf of the appellant.

8 The evidence revealed that there had been other developments of lands in Cherry Garden. Mr Dave Domville, in his affidavit filed on 29 December 2009, on behalf of the appellant, identified seven properties on which multi-unit housing had been constructed. In respect of several of those developments, Mr Domville deposed, the Supreme Court had authorised very similar modifications to the ones which the appellant sought.

9 Mr Domville stressed the small size of the appellant's proposed development, stating that a six-townhouse development would be consistent with the general surroundings and the high tone of the area. He deposed that the proposed development would be of such a value and the units would be sold to “purchasers who are professionals with impeccable character and who are of similar background” as the existing residents of the area. Those circumstances would mean that the development would “not injure financially or otherwise the persons owning lots in the area and further will preserve the high quality and character of that area” (paragraph 12(f) and (n) of his affidavit).

10 He further deposed that the appellant had secured the approval for the development from the relevant planning agencies, including the National Works Agency, The National Environment and Planning Agency and the National Water Commission. He contended that the concerns of the Raynors, and other persons who had,...