Re 13 Gainsborough Avenue
No. ERC.184 of 1987
Pamela Benka-Coker instructed by Paul Beswick of Ballantyne, Beswick and company for the applicant.
Dennis Goffe and Donovan Jackson for Hubert and Pearl White, Lancia Manufacturing Company Limited.
Kathleen Wehby, Ishmael and Hermenia Robertson, Anthony Vassel, and Gloria Hylton, the objectors.
Real property - Restrictive covenants — Application for discharge of restrictive covenant under the s. 3 of the Restrictive Covenants (Discharge and Modification) Act — Condition precedent to planning permission being given by the Authority — Density of 29 rooms/placed on the same lands — Objectors must be capable of benefiting from the covenants — To allow the modification would change the character of neighbourhood if applicant is allowed to put up extra buildings on the said land.
Mr. Denzil Ferguson and his wife are the Managing Director and a Director respectively of Gainsborough Development Company Limited the applicant who is the registered proprietor of land with a single family dwelling house on it and which land is known as 13 Gainsborough Avenue, Saint Andrew registered at Volume 735, Folio 5 in the Register Book of Titles. It is a lot measuring approximately .66 of an acre more or less and is part of a subdivision of lands formerly known as Barbican and is situated to the North of Barbican Road. This development was laid out in 1951. As far as my own memory will permit the areas to the north of Barbican Road having regard to the type of houses that were constructed in that section were intended for the upper income group for residential purposes only and single family houses. The section to the south of Barbican Road was acquired mostly by the middle income group and this was also restricted to single family houses. The predecessor in title to the present applicant, one Vera Wong had in about July 1982 made an unsuccessful attempt to obtain planning permission to construct a building which would have called for a density of 67 rooms per acre. The maximum permitted density at that time was 29 rooms per acre. Planning permission was granted for her to construct two sets of three bedroom semi-detached units (a set of 3 bedroom duplexes).
The present applicant acquired the lot in 1985 and in August 1985 obtained planning permission to construct four three bedroom houses. The applicant built the present dwelling house which he and Mrs. Ferguson and their family now occupy. It was while the process of the construction of the other three houses had commenced that an injunction was obtained by one of the objectors restraining the further progress of these buildings. The applicant was then obliged to do what they ought to have done from the very outset of formulating these development plans, that is to make an application to this Court under Section 3 of the Restrictive Covenants (Discharge and Modification) Act seeking to have the existing covenants modified or discharged. That this was not done until an objector took action to enforce what is her undoubted legal right is just another example of what is now to be regarded as a common place situation and which is a daily occurrence in the corporate area where covenants are honoured more in the breach than in the observance. One would have thought that the local planning authority would have as a condition precedent made it obligatory that no application for planning permission ought to be considered by it before such covenants as are in existence are removed by due process. It is my view that in so far as section 3 (1) of the Act fixes “The Town Planning Authority or any person interested in any free hold land affected by the restriction in making the application to modify or discharge the covenants,” this would make such an application to the Court if it was successful, a condition precedent to planning permission being given by the authority.
The present applicants would now like to build; in fact they have completed an attractive dwelling house in which the Ferguson's reside with their family and they were for a time engaged in the construction of three more such dwellings. Be that as it may, the applicant being restricted by the covenants, it has now made application to the Court to have the restrictive covenants on the title, to which the other lot owners are entitled to the benefit thereof, modified.
Of the six objectors, five live on Edgecombe Avenue which touches Gainsborough Avenue at its western end. The other objector, Gloria Hylton resides almost directly in front of the applicant's lot. Having regard to the location of 13 Gainsborough Avenue, being situated within a distance of about five to six chains from where Gainsborough Avenue and Edgecombe Avenue meet, it is not at all surprising that most of the objectors are residents from Edgecombe Avenue. A visit to the locus revealed that, facing Gainsborough Avenue at No. 13, to the left there is one single family dwelling house before one reaches to a large comer lot which is numbered on Edgecombe Avenue and is the residence of one of the objectors. The resident of all the other objectors are in close proximity to Gainsborough Avenue. The neighbour of Mrs. Hylton, Mrs. Kathleen Webby whose residence is to the right is another large corner lot also numbered on Edgecombe Avenue. The visit to the locus also revealed that Gainsborough Avenue from the direction that I approached it from Widcombe Avenue, runs in a direction from east to west in what appeared to me to be a straight and undeviating path until it ends at the western boundary where it intersects with Edgecombe Avenue which runs from South to North. All the lots and the developments on them as far as I was able to observe certainly within the immediate neighbourhood revealed what was in complete conformity with the permitted use as laid down in the covenant which were annexed to the titles to these lots when the subdivision was laid out. There is at present on Edgecombe Avenue to the North and not far from where Gainsborough Avenue and Edgecombe Avenue meet, one empty lot to the left as one proceeds up Edgecombe Avenue, Gainsborough Avenue and the surrounding areas to the Eastern and westerly boundaries with Widcombe and Edgecombe Avenue presented one with an atmosphere of a tranquil nature. The residences all seemed to be well maintained and had the sort of exclusiveness that results from the acquisition of a choice holding and what that carries with it. This application has as its objective, the modification of the existing restrictive covenants numbered 1, 3 and 4 on the Certificate of Title registered at Volume 735, Folio 5 of the Register Book of Titles and in so far as is material now resides as follows:–
“1. There shall be no subdivision of the land
3. No building of any kind other than a private dwelling house with appropriate out buildings…shall be erected on the said land.
4. The main building to be erected shall face the road way and no building or structure shall be erected on the said land nearer than sixty feet to any road boundary…no less than ten feet from any other boundary.(
The present application seeks the modification and/or discharge of the existing covenants referred to above in so far as relevant to read:–
“1. There shall be no subdivision of the said land save and except into five lots comprising four dwelling lots of not less than three thousand two hundred square feet and not more than four thousand two hundred and fifty square feet each, and one common are lots including roadway for the aforesaid dwelling lots of not less than nine thousand, two hundred and fifty square feet, which may be Strata Lots in accordance with the provision of the Registration (Strata Titles) Act”.
3. No building of any kind other than 4 private dwelling houses with appropriate out buildings thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling houses and out-buildings shall in the aggregate not to be erected in the said land nearer than twenty feet to any road.
4. No building to be erected on the said land shall be erected on the said land nearer than twenty feet to any road boundary which the same may face nor less than ten feet from any other boundary thereof and all gates and doors in or upon any fence or opening shall open inwards and alt out buildings shall be erected to the rear of the premises”.
The grounds upon which the application is based is set out at paragraph 13 of the affidavit of Denzil Ferguson, the Managing Director of the applicant Company, sworn to on 20 th October 1988. The deponent stated:
“(a) That the proposed modification will not injure the persons entitled to the benefit of the said restrictions.”
(b) That the continued existence of the said restrictions would unless modified impede the reasonable user of the said lands for private purposes without securing to any persons practical benefits sufficient in nature or extent to justify the continued existence of such restrictions without modification.
(c) That by reason of the character and changes in the neighbourhood, the aforesaid ought to be deemed obsolete. That the premises is situated in an area which has become increasingly characterized by multiple townhouse dwellings on one property and that the proposed construction...
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