The Restriction Affecting User of Land and the Restrictive Covenants (Discharge and Modification Act)
E. R/C 13 of 1989
Mr. Michael Hylton of Messrs. Myers, Fletcher & Cordon for the applicant.
Dr. Lloyd Barnett instructed by Mr. David Wong Ken of Perkins, Grant, Stewart, Phillips and Company for the 1 st, 3 rd, 4 th, 5 th, 6 th, 8 th and 9 th Objectors.
Mr. Christopher Honeywell for the 7 th Objector.
Mr. Ransford Graham for Jamaica 4-H Club Board of Management.
Restrictive covenants. - Modification — Houses that appear to be private residences on lots used for commercial purposes without covenant restricting such user being lifted or modified — Large multicoloured tent on lot 97 purchased by Covenant Community Church Ltd — Application for modification of certain restrictive covenants endorsed on Certificate of Title — Prior to purchase the company was notified by neighbours of objections to user of lot for school and church — Main reason: “Change of character of neighbourhood” — Held: Proposed modification would prejudice the objectors in enjoyment of their premises and would depreciate the values of the properties in the area — Could injure person entitled to the benefit of the restriction — Application refused.
Heard: 1 st and 2 nd October 1990,
As one travels North from Crass Roads, often referred to as the local version Picaddily Circus, you go along Old Hope Road towards Liguanea, passing through very mixed development of business places, petrol stations, Doctors' offices, pharmacies private residencies of a modest size and condition. This continues until you reach the Traffic Light at the intersection of Old Hope Road and Mountain View Avenue where to one's right is a Texaco service station and a few small business places and to one's left there begins a visible change in the size of the lots. One notes for the first time a number of large two storey houses which all “seem” to have the appearance of private residencies. I say “seem” because it is admitted on both sides that these premises, all four of theme are in fact being used for commercial purposes without the covenant restricting such user having been lifted or modified in any way. This is the same covenant, which will be set out verbatim later on in this judgment and which is on all the Titles, which form a part of the original subdivision. As you reach up to the next intersection on your left, that is, to Retreat Avenue, one' attention is immediately attracted to a large multi-coloured tent towards the Hope Road side of one of these lots — lot No. 5 by counting from Seaview Avenue, lot No. 97 on the planimetric map which forms an Exhibit to the affidavit of George Lewis dated 26 th September, 1990 and filed in Support of the Application. To the rear of this tent and at the back of the same lot is a similar type of solid two-storey residence, which prevails from above Seaview Avenue. If one is a stranger the area and predisposed to reacting audibly to shock so strikingly large and colourful is the tent that like the Lilliputians in Gullivers Travels when they beheld the giant pinned to the ground the spontaneous question is, “Ho, what have we here?” is this lot 97 which is the subject of the application for modification of certain restrictive covenants endorsed on the Certificate of Title registered at Volume Folio 43 in the name of the Applicant, Covenant Community Church Limited.
A brief background history of this application would be helpful. All this information is gleaned from the affidavits filed and appears not to be in issue. The lots on the western side of Old Hope Road and fronting thereon are a part subdivision known as “Seymour Lands”. The applicant's lot at 97 Old Hope Road objectors' lots at 1 and 2 Retreat Avenue, the residences of the Canadian High Commission, the Australian High Commission and the Chinese Embassy Cum Residence an other lots are all bounded by the same roadways and constitute the block in which the applicant's lot falls. On the other side of Retreat Avenue you find the British High Commission Residence, the Indian High Commission Residence and further north the Korean Embassy Cum Residence and twenty-five smaller residences all on Halart Drive. All these lands form part of the same subdivision, share the same riot title and arc: endorsed with the same covenants for the mutual protection of the registered proprietors of lands in the Subdivision. The Embassies and High Commissions listed above are all large prestigious houses and along with several of in the immediate areas some of whom have lodged objections to this application to establish beyond any question that they form part of a very prestigious residential area.
Lot 97 Old Hope Road was purchased by the Covenant Community Church as recently as 1988. They wished to establish a Church and school on the site. Mindful of the covenant endorsed on the Certificate of Title they proceeded to acquire title. But more to the point and this has not been denied, prior to the completion of the purchase the applicant was advised that their immediate neighbours whose property shared a common boundary would be objecting to lot 97 being put to use as a school and Church. Another objector at No. 2 Retreat Avenue is across the road from the applicant but it is noted that the applicant's lot known as No. 97 Old Hope Road has its longer street boundary on Retreat Avenue. This boundary is approximately 350 feet in length while on the Old Hope Roadside that boundary is only approximately 150 feet.
Covenant Community Church Limited, by Summons dated 30 th January 1989 sought a modification of restrictive covenant in respect of a parcel of land part of Retreat in the parish of St. Andrew. This land is comprised in certificate of title registered the Register book of Titles. The modification sought was in the following terms: –
“2. Any building or buildings on the said land, shall not be used for the purposes of a ‘Church, Chapel, School house or racing stable and no business shall be carried on upon the said land or any part thereof other than the erection maintenance and renting and/or sale of residential apartments, flats, flat-lets, condominiums, town houses.”
Be modified to read as follows: –
“2. No business shall be carried on upon the said land or any part thereof other than the erection, maintenance and renting and/or sale of residential apartments, flats, flat-lets condominiums and townhouses PROVIDED HOWEVER that the use of any building as a Church, Chapel or School house shall not be deemed a breach for the purpose of this covenant.”
The Summons was supported by an affidavit of even date sworn to by one Byron George Lewis a company director and director of the Covenant Community Church limited in which he set out the grounds on which the application was made:
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 on 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 modified or discharged; or
d) that the proposed discharge or modification will not injure the person entitled to the benefit of the restriction.
It is noted that these grounds are taken directly from Section 3 of the Restriction Covenants (Discharge and Modification) Act, it is this section which empowers a judge in chambers to discharge or modify covenants upon the application of any person interested in any freehold land affected by any restriction arising under Covenant or otherwise (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order).
It is to Mr. Hylton's credit that early in his opening remarks and in opening the case for the applicant he candidly admitted that reliance was placed mainly on ground...
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