Re Lots Numbered Ten and Eleven Block ‘Y’ on the Plan of Vale Royal

• Jurisdiction: Jamaica
• Judgment Date: 15 June 2011
• Judgment citation (vLex): [2011] 6 JJC 1501
• Date: 15 June 2011
• Docket Number: CLAIM HCV 0961 OF 2003
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

CLAIM HCV 0961 OF 2003

IN THE MATTER OF ALL THAT parcel of land part of VALE ROYAL in the Parish of Saint Andrew being the lots numbered Ten and Eleven Block ‘Y’ on the Plan of Vale Royal aforesaid deposited in the Office of Titles on the 1 ^st day of November 1927 and Containing by survey One Acre two Perches and Five-Tenths of a Perch of the Shape and Dimensions and butting as appears by the Plan thereof hereunto annexed and being the land comprised in certificate of Title registered at Volume 288 Folio 35 of the Register Book of Titles.

AND

IN THE MATTER of Restrictive Covenants Numbered (2) (5) and (6)

AND

IN THE MATTER of the Restrictive Covenants (Discharge and Modification) Act

HOPEFIELD CORNER LIMITED

APPLICANT

FABRICS De YOUNIS LIMITED

RESPONDENT

Mrs. Denise Kitson and Mrs. Suzanne Risden-Foster instructed by Grant, Stewart, Phillips &Co. for the Applicant, Hopefield Corner Limited.

Mr. Maurice Manning and Ms Sherry-Ann McGregor instructed by Nunes Scholefield, DeLeon & Co. for the Objector – Fabrics De Younis Ltd.

Land Law; Restrictive Covenants (Discharge and Modification) Act; Definition of ‘Neighbourhood’; Whether obsolescence has been shown by changes occurring in neighbourhood; Whether Objector has impliedly or expressly agreed to modifications; Meaning of ‘reasonable user’ in section 3(1)(b) of Act; Application of Stannard and others v Issa; exercise of Court's discretion; Availability of compensation to unsuccessful Objector.

1 ) This is an application by Hopefield Corner Limited (‘the Applicant’), seeking to modify Restrictive Covenants which presently exist over the user of the land with civic address No. 3 Hopefield Avenue, Kingston 10 in the Parish of St. Andrew (the ‘Hopefield Corner property’). The matter has a long history dating back to at least 2002, but for the purposes of this hearing, may be summarized in the following.

2 ) The Applicant is a company incorporated in Tortola, British Virgin Islands. It has a number of shareholders including Mr. Kenneth Benjamin, Mr. Vinay Walia, Mr. Rai Tarun Handa and Mrs. Elizabeth Ann Jones-Kerr. The company, through its representatives, negotiated and ultimately purchased the parcel of land now contained in the Certificate of Title, Volume No. 288 Folio 35 of the Register Book of Titles. It is the land with the civic address referred to above. It is not in dispute that when the property was being purchased, the Applicant was aware of certain restrictive covenants over the land, which would have prevented development in the manner that was contemplated. The Applicant now seeks to effect a modification of Restrictive Covenants Numbers 2, 5 and 6, the terms of which are set out below:

• 2) Not to subdivide the said land except in accordance with aforesaid plan or with a plan approved by the Board under law 222 of 1914 in which latter case none of the lots shall be less than half an acre in area.

• 5) Only one residence shall be erected on any lot of the said land and such residence together with the buildings appurtenant thereto shall cost not less than eight hundred pounds and shall be fitted with proper sewer installations and no pit closet to be erected for use on the said lot.

• 6) No building shall be erected within thirty feet of any road boundary nor within fifteen feet of any other boundary.

3 ) The application seeks to modify the covenants so that they read as follows:

• 2) Not to subdivide the said land into smaller lots save and except into six (6) dwelling houses.

• 5) Only one residence shall be erected on any lot of the said land.

• 6) No building shall be erected within eight (8) metres of any boundary of Hopefield Avenue, save and except for the guard house.

4 ) The application is opposed by Fabrics De Younis Ltd., (the ‘Objector’) the owner of the adjoining premises with civic address, 1 Hopefield Avenue, Kingston 10 (the ‘Younis premises’) and contained in Certificate of Title registered at Volume 203 Folio 69 of the Register Book of Titles, through its principal, Mr. Sameer Younis.

5 ) The original application for modification by way of a Fixed Date Claim Form was filed on or around June 11 2003, and an amended Fixed Date Claim Form was filed July 29, 2003. It came on for hearing on various dates between then and the 20 ^th February 2004, on which date the learned Judge, Cole-Smith J. granted an order for the modification in terms of the application. Purportedly, in reliance upon that Order, the Applicant proceeded to construct the development it contemplated at 3 Hopefield Avenue, which development was completed sometime around September to December 2005.

6 ) While construction of the development was continuing, in or around August 2004, the Objector applied to set aside the grant of the order and was successful in so doing on the basis that it had not received, as it was entitled to, the Notice of the Application to discharge or modify the covenants. After several hearing dates in 2005, Beckford J. reserved her judgment. The learned judge's decision setting aside the Court's earlier order, was given on the 3 ^rd February 2006. The Applicant then appealed to the Court of Appeal which upheld the judgment of Beckford J. This has, accordingly, necessitated the filing of a new application by the Applicant and it is in relation to this new application, now opposed by the objector, that this hearing is taking place.

7 ) The application is made pursuant to the Restrictive Covenants (Discharge and Modification) Act, (‘the Act’), Section 3 (1) of which is in the following terms.

‘A judge in Chambers shall have power, from time to time on the application of the Town and Country Planning Authority or of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequences 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 or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of such restriction, or, as the case may be, the continued existence thereof without modification; or

• (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; or

• (d)That the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.

Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction, unless the person entitled to the benefit of the restriction also suffers loss in consequence of the discharge or modification, nor shall any compensation be payable in excess of such loss’.

8 ) The evidence is contained in the various affidavits of Vinay Walia, Rai Tarun Handa, Kenneth Benjamin, Catherine Craig, Ian Garbutt, Bryan Morris, Peter Mair and Norma Breakenridge filed in support of the application. The affidavit of Norma Breakenridge of Breakenridge and Associates, has attached to it a report in relation to an evaluation of the area in which the properties, the subject of the application and objection, are located. Several affidavits in opposition to the application have also been filed on behalf of the Objector by its principal, Mr. Younis, who actually resides in the premises at No: 1 Hopefield Avenue. The Hopefield Corner property now comprises the land in Certificate of Title Volume 288 Folio 35, (lots 10 and 11 of Block ‘Y’ and part of Lot 9 of Block ‘Y’); land at 9 Lilford Avenue and registered at Volume 946 Folio 195 of the Register Book, and land previously part of 11 Lilford Avenue (now part of 3 Hopefield Avenue) and registered at Volume 792 Folio 72, all these lands previously part of Vale Royal in the Parish of St. Andrew. There is no dispute that the Younis premises is the beneficiary of the covenants at issue. Both the Younis property and the Hopefield Corner property were originally part of a one hundred and seven (107) acre property registered at Volume 38 Folio 6 of the Register Book of Titles in the name of one Ernest Nuttall.

9 ) From that title, the registered proprietor transferred to Lillie Maude Bolton a section described as Lot 12, Part of Vale Royal in the Parish of St. Andrew and which became registered at Volume 203 Folio 69. There was a subsequent transfer to Charles Costa. The property at Volume 288 Folio 35 was transferred to Arderne Limited and subsequently transferred to the Applicant by transfer dated June 2003.

10 ) It is undoubtedly the law that in order to be granted permission to modify or discharge a restrictive covenant, it is necessary for the applicant to fulfill at least one of the conditions imposed by virtue of section 3(1) of the Act. Even if a condition is fulfilled, it is still open to the Court's discretion as to whether to grant the application. It will therefore be necessary to consider the evidence and the relevant authorities in relation to each of the...