Re Greenwich Park
| Jurisdiction | Jamaica |
| Judge | G. Brown, J (Ag.) |
| Judgment Date | 24 November 2009 |
| Judgment citation (vLex) | [2009] 11 JJC 2401 |
| Date | 24 November 2009 |
| Court | Supreme Court (Jamaica) |
IN THE MATTER of ALL THAT parcel of land part of GREENWICH PARK in the parish of SAINT ANN being Lot numbered TWO HUNDRED AND SEVEN on the plan part of GREENWICH PARK aforesaid deposited in the Office of Titles on the 24 th day of March 1977 of the shape and dimensions and butting as appears by the said plan and bring part of land comprised in Certificate of Title registered at Volume 1128 Folio 148 but itself being registered at Volume 1183 Folio 725 of the Register Book of Titles.
IN CHAMBERS
RESTRICTIVE COVENANTS - Modification of restrictive covenants - Application - Residential - Two lots - Objections to one only - No objection from Parish Council or NEPA
This involves two applications for the modification of restrictive covenants as regards to all that parcel of land known as Lots 207 and 46 at the Greenwich Park subdivision in the parish of Saint Ann. In respect of Lot 207, there have been four separate objections filed by proprietors in the scheme. However, with regard to Lot 46, no objection was filed. It must also be noted that the Saint Ann Parish Council and the National Environment and Planning Agency (NEPA) are not objecting to the proposed amendment.
The Applicant is seeking an order that the following restrictions numbers 1, 2 and 15 on the Certificate of Titles registered at Volume 1183 Folio 725 which reads as follows:
"1. The lot and all buildings and other erections thereon shall not nor shall any part of the Lot or erections at any time be used otherwise than as one single private dwelling house and the appurtenances thereof and any such dwelling house shall not cost less than ONE HUNDRED THOUSAND DOLLARS."
"2. No building erected on the Lot shall be used for the purpose of a shop, school, chapel or church and no trade or business whatsoever shall be carried on upon the Lot or any part thereof."
"15. There shall not at any time be erected, placed or suffered to be or remain on the Lot any temporary building or structure except such as are used for the purpose of building a private dwelling in accordance with sub-paragraph (1) hereof."
Affecting the erection of buildings on the said land is modified as follows:
"1. No building of any kind shall be erected on the Lot or any part of the Lot EXCEPT in accordance with the approval of the relevant authority."
"2. No building erected on the Lot shall be used for the purpose of a shop, school, chapel or church and no trade or business whatsoever shall be carried on upon the Lot or any part thereof SAVE AND EXCEPT as approved by the relevant authority."
"15. There shall not at any time be erected, placed or suffered to be or remain on the Lot any temporary building or structure except such as are used for the purpose of the erection of building in accordance with subparagraph (1) hereof"
The applications are made pursuant to section 3(1) of the Act which provides as follows:
A judge in Chambers shall have the power, by order wholly or partially to discharge or modify any such restriction (subject or not to payment by the applicant of compensation to any suffering loss in consequence of the order) on being satisfied -
(a) That by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the judge may think material, the restriction ought to be deemed obsolete; or
(b) That the continued existence of such restriction or the continued existence thereof without modification would impede the reasonable user of the land for public and private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction, as the case may be, the continued existence thereof without modification;
(c) ...that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified;
(d) That the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.
In Re Lots 12 and 13 Fortlands (1969) 11 JLR 387 at page 391, Parnell, J said as follows:
"From the above provision, I deduce the following prepositions:
(1) That the burden is on the applicant to prove that the restriction arising under a covenant which affects his freehold land should be discharged or modified;
(2) That the extent of the burden of proof is to satisfy the judge on a balance of probabilities that at least one of the matters stipulated under (a)–(d) has been established;
(3) That every person entitled to the benefit of the restriction which is to be discharged or modified ought to be notified of the application which has been made so that he may intervene as an interested party if he so wishes;
(4) That even if the applicant shows the judge that one of the matters required to be established by him for the removal or modification of the covenant has been made out, the application may still be refused if, in the court's discretion, there is proper or sufficient ground for so doing;
(5) That any compensation payable as a result of loss suffered or to be suffered by an interested party as a consequence of the discharge or modification of the covenant in favour of the applicant is limited to an amount proved by the person claiming the said loss as traceable to the benefit which the applicant will obtain as a result of the...
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