Re No. 39 Wellington Drive
| Jurisdiction | Jamaica |
| Judge | Orr, J. |
| Judgment Date | 09 December 1991 |
| Court | Supreme Court (Jamaica) |
| Docket Number | No. E R/C 139 of 1990 |
| Date | 09 December 1991 |
Supreme Court
Orr, J.
No. E R/C 139 of 1990
Real Property - Registered land — Restrictive covenants — Application for modification/discharge of covenants endorsed on applicant's title — Restrictive covenant regarding sub-division, distance of buildings from roadway and user — Objections to the application — Whether this was a proper case for discharge or modification — Restrictive Covenants (Discharge and Modification) Act s. 3.
Christopher Honeywell and Eleanor Joy Donaldson instructed by
Clinton Hart and Company for the applicant Central Mining and Excavating Limited.
Michael Hylton and Alexander Williams instructed by Myers Fletcher and Gordon for Peter Croswell, Carl Croswell, Roy Anthony Bridge, Gloria Hope Bridge and Clive Morin - The objectors.
COURTENAY, Arguments were heard in this matter on 30 th April and 1 st May 1991. On 31 st May I visited the neighbourhood and promised to give my decision soon. I regret the delay but was unable to do so earlier, because of pressure of work and increasing evidence that ought to obtain a period of rest. This is an application by Carlton Depass on behalf of Central
Mining and Excavating Limited under section 3 of the Restrictive Covenants (Discharge and Modification) Act, to have certain restrictive covenants endorsed on the title of the company's property at 39 Wellington Drive, Mona, Saint Andrew modified and/or discharged. The restrictive covenants wore imposed by application registered in 1954 when lands part of Mona and Papine Estates were registered by the Colonial Secretary of Jamaica. The applicant's lot forms part of a subdivision of over 80 lots. At present that lot is an open lot. The lots of the objectors, and the applicant are in very close proximity. Wellington Drive runs from east to south west and is numbered east to west.
On its eastern and it forms a junction with Mona Road and at its south western and it forms another with Wellington Drive slopes upwards from Monroe Road to Mona Road, that is from south west to east. When one travels from south west to east along Wellington Drive the following roads form junctions with the left hand side of Wellington Drive in the following Canberra Crescent, Bamboo Avenue and Ottowa Avenue. There are no roads leading from the right hand side of Wellington Drive. Concerning the lots on Wellington Drive, one comes first to the lot of the objectors Carl and Peter Croswell on the left at number 2 Canberra Crescent, that is at the eastern end of the junction of Canberra Crescent and Wellington Drive. Next, beside it on the left of Wellington Drive is Clive Morin's lot at number 2D Bamboo Avenue, at the junction of Bamboo Avenue and Wellington Drive.
On the right hand side and opposite Clive Morin's lot are the lot of the objectors, Roy Anthony Bridge and Gloria Hope Bridge at number 41 Wellington Drive and then the lot of the applicant at number 39 Wellington Drive. Clive Morin's lot fronts Wellington Drive for the combined lengths of the Bridge's lot and the applicant's lot. The restriction which the applicant seeks to have modified and discharged are as follows:–
- The said land shall not be subdivided. 2. No building of any king other than a private dwelling house with the appropriate out building appurtenant thereto and to be occupied there with 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 then Two Thousand Pounds. 3. The building to be erected on the said land shall not be erected nearer than twenty-five feet to any road boundary which the same may fall nor less than ten feet from any other boundary. Any out building to be erected on the said land shall not be nearer to the road boundary than the main building itself. 9. No building shall be erected on the said land if the said land fronts any roadway until the said roadway has been constructed to the satisfaction of the City Engineer and taken over by the Kingston and Saint Andrew Corporation.
The applicant seeks the modification of restrictions 1, 2, 3 and the discharge of restriction No. 9 as set out hereunder:
- “There shall be no subdivision of the said land except with the approval of the Relevant Planning Authority.” 2. No buildings of any kind other than private dwelling houses or Town Houses with the appropriate out buildings appurtenant thereto and to be occupied therewith together with a guard house and garbage disposal structure shall be entered on the said land and the value of such private dwelling houses or town houses and out buildings shall in aggregate not be less than Two Thousand Pounds. 3. The buildings to be erected on the said land shall not be erected nearer than twenty-five feet to any road boundary which the same may fall nor less than ten feet from the back boundary save and except a guard house and garage disposal structure which shall not be deemed to be a breach of this covenant.
9. “RESTRICTIVE COVENANT NO.9 BE WHOLLY DISCHARGED.”
The summons was supported by a number of affidavits, particular two affidavits dated 25th June, 1990 and 8 th February, 1991 by Carlton DePass a director of applicant company. In paragraph 18 of his affidavit 18th February, 1991 he sets out the purpose of this application as the intention of the company to erect “11 three bedroom units the market price for which was determined as at December, 1990 at $1,200,000.00 per unit which said price is subjected to a likely upward appreciation.“
THE GROUNDS OF THE APPLICATION
In his first affidavit Mr. DePass outlined the following grounds which are taken from section 3 of the Restrictive Covenants (Discharge and Modification) Act: hereinafter referred to as the “Act.”
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(a) The proposed modification will not injure the entitled to the benefit of the said restrictions.
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(b) The continued existence of restrictions would, unless modified and discharged, impede the reasonable user of the land for private purposes without securing to any person practical benefits of the continued existence of such restrictions without modification.
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(c) That by reason of the changes in the character of the neighbourhood the restrictions ought to be deemed obsolete.”
These grounds correspond to section 3( 1) (d), 3 (1) (b) and 3(1) (a) respectively of the Act. Section 3(1) empowers a judge in chambers to discharge or modify covenants by providing so far as is material:
“3 (1) A judge in chambers shall have power from time to time on the application of the Town and Country Planning Authority or any person interested in any freehold 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 minify any such restriction (subject or not to the payment by the applicant of compensation to any person 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 of the continued existence thereof with modification would impede the remarkable 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 as such restriction, or as the case may be, the continued existence thereof without modification or ……………
(d) That the proposed discharge of modification will not injure the person entitled to the benefit of the restriction provided that no compensation shall be payable in respect the discharge of 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 lose in consequence of the discharge of modification, nor shall any compensation be payable in excess of such loss.”
At the close of his submissions Mr. Honeywell while not abandoning the second ground (that the continued existence of the restrictions would impede the reasonable user of the land) admitted that the other grounds were those on which “the applicant relies most heavily.” This was wise and reflected of his submissions. It must be borne in mind that where an applicant sots modify or discharge a restrictive covenant the onus is on him to prove that at least one of the grounds set out in section 3(1) (a-d) of the Act exists. But that is not an end of the matter, for even if facts necessary to establish a ground are proved, the applicant is not entitled as of right to an order discharging or modifying the relevant restriction. The court has a discretion to refuse an application where there are proper and sufficient grounds for doing so.
There is no burden of proof on the objectors, as in objecting they are merely exercising their right to preserve their entitlement to the benefit of the covenants which they enjoy. The affidavits disclose that the covenants have been modified by orders of the court in respect of 8 lots.
They are as follows:
33 Wellington Drive, and numbers 2A - 2B Bamboo Avenue together, as a result of which six town houses have been erected on the former and 14 on the latter. There was also a reduction in the minimum value of the houses which may be erected on the latter. Number 23 Wellington Drive, 35 Wellington Drive, 3 3A Wellington Drive and 1 Ottawa Avenue. These now contain 2, 2, 3 and 4 dwelling houses respectively. Number 29 Wellington Drive. Here the affidavit is unclear as to the nature of the subdivision allowed.
As regards number 8 Wellington Drive, the covenant against subdivision was wholly discharged. There are 2 lot, 15 Ottawa Avenue...
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