“The court shall have power on the application of any person interested – (a) To declare whether or not in any particular case any freehold land is [or would in any given event be] affected by a restriction imposed by any instrument; or (b) To declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is [or would in any given event be] enforceable and if so by whom. […] ” (a) To declare whether or not in any particular case any freehold land is [or would in any given event be] affected by a restriction imposed by any instrument; or (b) To declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is [or would in any given event be] enforceable and if so by whom. […] ”
“4. No building shall be erected upon any part of the said piece of land except as and for a private dwelling house and the stabling offices and outbuildings thereof and no building erected thereon shall at any time be used except for the purpose last aforesaid and no part of the said land not built on shall be used for any purpose except as a garden or as pleasure grounds appurtenant to a residence erected upon some part of the said land. 5. Not more than two detached dwelling houses shall at any time be erected upon the said piece of land and each house erected thereon shall be of the value of five hundred pounds at the least exclusive of stabling offices and outbuildings such value to be taken to be its net first cost in material and labour only at average current prices.”
“covenant by the Vendors for themselves their heirs and assigns owners for the time being of amongst other lands the hereditaments hereinafter described and intended to be hereby conveyed with the said Henry Cecil Allen Randall his heirs and assigns owner or owners for the time being of the piece of land so colored blue as aforesaid that the Vendors their heirs and assigns owners for the time being of (amongst other lands) the hereditaments so intended to be hereby conveyed as aforesaid will henceforth observe perform and comply with the stipulations and restrictions contained in the Second Schedule to the indenture now in recital which stipulations and restrictions were mutatis mutandis similar to the stipulations and restrictions numbered 1 2 3 and 5 in the Second Schedule to these presents”
“2. No buildings shall be erected upon any of the plots of land colored green yellow and violet on the said plan except as and for private dwelling houses and the stabling offices and outbuildings thereof and no building erected on any such plots shall at any time be used except for the purpose last aforesaid and no part of any such plots not built upon shall be used for any purpose except a garden or as pleasure grounds appurtenant to a residence or residences erected upon some part of such plots. 3. Not more than two detached dwelling houses shall at any time be erected upon any one of the said plots coloured violet on the said plan. 4. Not more than three detached dwelling houses shall at any time be erected upon any one of the said plots of land colored green and yellow on the said plan. 5. Every house to be erected upon the said plots of land shall be of the value of five hundred pounds at the least exclusive of stabling offices and outbuildings such value to be taken to be its net first cost in materials and labour only at average current prices.”
“the Purchaser for himself his heirs and assigns and to the intent that the covenant hereinafter contained so far as the same is of a negative character shall run with the land hereby conveyed and be binding upon the Purchaser his heirs and assigns during the period of his or their respective ownership or occupation of the land and so far as the said covenant is of a positive character shall be binding upon the Purchaser his heirs executors and administrators with the Vendors at their heirs and assigns owners from time to time of the adjoining land situated on the south east south-west and north-west sides respectively of the piece of land hereby conveyed that the Purchaser his heirs and assigns will henceforth observe and perform and comply the stipulations and restrictions contained in the First Schedule hereto.”
“(1) Both the schedule 1 and schedule 2 covenants manifest sufficient intention to annex the benefit of these covenants to land retained by the covenantee; (2) These covenants are not expressed to be purely personal; (3) The covenants touch and concern the lands to be benefited by them; and (4) The land intended to be benefited by these covenants is capable of being identified with reasonable certainty.”
“(1) The benefit of the schedule 1 covenants has run (both at law and in equity) to Ds, as successors in title to the vendors in these conveyances, and as proprietors of land forming part of the yellow, green or violet land. (2) The burden of the schedule 1 covenants has run in equity to C, as successor in title to the purchaser in the May 1910 and July 1910 conveyances, and as proprietor of the pink land and part of the blue land (the part on which 274 London Road is situated). As the burdens are protected by notice on the Land Register, subject to the arguments concerning enforceability set out below, the schedule 1 covenants would be enforceable against C by Ds. (3) The benefits of the schedule 2 covenants have run (both at law and in equity) to C, as successor in title to the purchaser in the May 1910 and July 1910 conveyances, and as proprietor of the pink land and part of the blue land (i.e. 274 London Road). (4) However, as the burdens of the schedule 2 covenants were not protected by notice on first registration of any of the registered titles within the yellow, green or violet land, or thereafter (with one exception: see paragraph 15 above), the burdens of the schedule 2 covenants are not enforceable by C against any of the Ds.”
“It is agreed that, if the schedule 1 covenants are enforceable by Ds against C, the development will breach both these [purchaser] covenants.”
“the plaintiffs, who are seeking equitable relief by way of injunction, cannot obtain such relief unless they allege and prove that they have performed their side of the bargain hitherto and are ready and able also to perform their part in the future.… The plaintiffs have not given, and cannot in future give, the defendant [the consideration for which he bargained]. The contract on their part has been broken. It is not necessary that the breach should be wilful in the sense of being intentional.”
“The first question to determine is whether the considerations passing between the plaintiffs and defendant under the agreement … consist in the mutual promises made by the one to the other or in the performance by each of his obligation as the price of the benefit secured to him by the agreement. Stating it in the concrete form relevant to the particular matter in dispute before us, was the performance of clause 1 by the plaintiff company a condition precedent to any right in the plaintiff company to enforce clause 5? Am I to read the agreement as if it said, ‘if the defendant shall for the time mentioned in clause 1 enjoy the place and remuneration promised by that clause he shall, but not otherwise, be compellable to perform clause 5’? In my judgment this question is to be answered in the negative.”
“The appellant’s position is, to say the least, none the stronger if it is judged as an applicant for specific performance and its claim for this special relief is tested by the equitable principles that apply to such a claim. It might be a difficult task to enumerate all the separate aspects in which the claim is liable to be defeated on grounds of equity. It is sufficient for the decision of this case to identify two of them. A plaintiff who asks the court to enforce by mandatory order in his favour some stipulation of an agreement which itself consists of interdependent undertakings between the plaintiff and the defendant cannot succeed in obtaining such relief if he is at the time in breach of his own obligations. The case of Measures Brothers Ltd v Measures is a familiar instance of this principle. The appellant in this case has not been able to deny or, at any rate, has not denied that it was in default in several respects at the time when the respondent served upon it the notice of termination. Secondly, where the agreement is one which involves continuing or future acts to be performed by the plaintiff, he must fail unless he can show that he is ready and willing on his part to carry out those obligations, which are, in fact, part of the consideration for the undertaking of the defendant that the plaintiff seeks to have enforced. Here the appellant could never show that it was ready and willing to perform its share of the agreement of 1956; for its breaches had brought upon it the notice of determination which precluded it for good from doing anything more in furtherance of that agreement.”
“Secondly, where the agreement is one which involves continuing or future acts to be performed by the plaintiff, he must fail unless he can show that he is ready and willing on his part to carry out those obligations, which are, in fact, part of the consideration for the undertaking of the defendant that the plaintiff seeks to have enforced.”
“10. Hotels, taverns, and manufactories. – Except on lots marked ‘tavern lot’, no hotel, tavern, public house, beerhouse, shop, or other building, for the sale of wines, spirits, ale, or stout, or any spirituous, malt, or exciseable liquor of any kind, shall be built upon any lot now offered for sale; and on no lot shall any manufacture be carried on unless with the consent of the vendors, who shall be at liberty to grant a licence for the same. Shops. – No trade, business, or manufacture of any kind is to be carried on upon any of the lots now offered except those marked ‘shop lots’.”
“I think that North J was right in saying that you cannot tell, as to many of the things mentioned, whether or not a house, when it is in course of building, is intended for a hotel, tavern, public-house, &c. You must look to the user of the house before you can say that it is or is not a beerhouse, and before declaring that the covenant has been infringed.”
“That in the event of the said covenanting party his heirs appointees or assigns building on the land so purchased by him as aforesaid he or they should and would erect on such land a good and substantial messuage or dwelling-house or one pair of semi-detached messuages or dwelling-houses and no more with all necessary outbuildings and all proper and effectual sewers or drains and culverts thereto and should not erect or permit on the said land any back house public house or pleasure garden.”
“54. The thrust of Mrs Piggott’s submission was that the covenants required the construction of one dwelling house (or a pair of semi-detached dwelling houses) by the original developer, to the specifications contained within the deed poll, but once the original house or houses had been built in accordance with the covenant, the covenant was spent. The only obligation which remained was to maintain the front of any alteration or addition to any such house in conformity with the restrictions in the deed poll (though such an obligation, shorn of the spent restrictions, would seemingly be unenforceable because of its positive nature). [ … ] 56. Mrs Piggott had to accept that her submission would have had the effect that in 1891 a developer could have developed a plot in conformity with the covenant, declared his development complete, then sold the plot to another developer who would – according to the submission – have been free to erect several further houses in the rear garden, all within months of the ink drying on the deed poll. That seems to me to make no sense at all. 57. I have no hesitation in rejecting Mrs Piggott’s construction of the particular obligations imposed by the deed poll. The deed poll did not require the development of any plot. It did require that any development which the then owner decided to implement should be in conformity with the specifications laid down, which included the construction of one dwelling house or a pair of semi-detached dwelling houses ‘and no more’. The latter phrase was not just a reference to the original construction but is a continuing description of what may be contained on the plot.”
“I cannot adopt this view. In my opinion the covenant was broken once and for all when the house was erected contrary to it; it was a breach complete at once and not continuous … ”
“where there are negative covenants which are binding on the defendant the court has, speaking generally, no discretion to consider the balance of convenience or matters of that nature, but is bound to give effect to the contract between the parties, unless the plaintiff seeking to enforce the covenant has by his own conduct, or by that of the persons through whom he claims, become disentitled to sue.”
“But, assuming that the plaintiff and his predecessors have suffered these things to pass without notice when they sustained no particular injury, how can that deprive the plaintiff of his equity to use the covenant for his protection where the breach of it immediately affects the enjoyment of his house?”
“27. [ … ] What Lord Templeman emphasised in Rhone v Stephens was that a successor in title to the original covenantor did not incur a liability to perform a positive covenant such as the covenant to repair in that case unless it had some real relation to a right granted in his favour under the conveyance which he did wish to exercise. The reference in his speech to the exercise of those rights being conditional upon the performance of the positive obligation is not, as he made clear, limited to cases in which it is expressly so conditional. In Halsall v Brizell the owners of houses on an estate covenanted to pay a due proportion of the cost of maintaining and keeping in good repair the roads, sewers, promenade and sea wall serving the estate. There was nothing in the conveyance itself which in terms made the enjoyment of these facilities conditional upon the payment of the maintenance charge and the charge was payable under the terms of the conveyance for their maintenance and not for the exercise of the right to enjoy and make use of them. But Upjohn J said of the owners of the houses who were successors in title to the original covenantors: “If the defendants did not desire to take the benefit of this deed, for the reasons I have given, they could not be under any liability to pay the obligations thereunder. But, of course, they do desire to take the benefit of this deed. They have no right to use the sewers which are vested in the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the roads of the park which lead to their particular house, No. 22, Salisbury Road. The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits.” 28. What this recognises (as Judge Vincent himself held) was that, in substance, the payment of an annual charge for the maintenance of facilities which the defendants are only entitled to use by virtue of rights granted under the deed is relevant to the continued exercise of those rights even though it is in fact (and in terms) a contribution to the cost of their maintenance. The two are not inconsistent. Quite the contrary. 29. In some cases (like Rhone v Stephens) the positive obligation may be completely unrelated to the rights which the owner seeks to exercise. A more obvious example is the decision of this court in Thamesmead Town Ltd v Allotey [1998] 37 EG 166 where the property owners on an estate were asked to contribute to the cost of repairing landscaped and community areas over which they had been granted no rights at all. At page 99 Peter Gibson LJ said that: “The reasoning of Lord Templeman suggests that there are two requirements for the enforceability of a positive covenant against a successor in title to the covenantor. The first is that the condition of discharging the burden must be relevant to the exercise of the rights that enable the benefit to be obtained. In Rhone v Stephens the mutual obligation of support was unrelated to and independent of the covenant to maintain the roof. The second is that the successors in title must have the opportunity to choose whether to take the benefit or, having taken it, to renounce it, even if only in theory, and thereby to escape the burden and that the successors in title can be deprived of the benefit if they fail to assume the burden. On both those grounds Halsall v Brizell was distinguished. Although Lord Templeman expressed his wholehearted agreement with Upjohn J's decision, Lord Templeman's description of that decision was limited to the defendant being unable to exercise the rights to use the estate roads and to use the sewers without paying his costs of ensuring that they could be exercised. Nothing was expressly said about the cost of maintaining the sea wall or promenade and it is a little difficult to see how, consistently with Lord Templeman's reasoning and, in particular, the second requirement for the enforceability of a positive covenant, the cost of maintaining the sea wall would fall within the relevant principle. ….. Mr Routley submits that the judge was wrong in law in holding that a positive covenant can be enforced against the assignee of the covenantor only where the burden of that covenant is a condition attached expressly or by implication to the exercise of a reciprocal right granted by the covenantee. He says that the judge should have held that such a covenant was enforceable against such a person where the burden of the covenant was a condition attached expressly or by implication to the enjoyment of a reciprocal benefit granted or provided by the covenantee, either contained in the same deed or as part of the same agreement or arrangement. In developing this argument, Mr Routley submitted that where the burden of a positive covenant is conditional upon a reciprocal or a relevant benefit, it will be enforced. He pointed out that this is not restricted to the benefit of rights granted by a deed. That is true. An oral agreement or arrangement will suffice, as was held in ER Ives Investment Ltd v High[1967] 2 QB 379 . But that is irrelevant, as here the plaintiff has only the transfer on which it can rely. Mr Routley also pointed out that the benefits need not be expressly related to a corresponding burden, but can be related by implication. That is not in dispute. He drew attention to the fact that Lord Templeman did not use the language of benefit throughout, but also referred to rights and power. He submitted that this meant that Lord Templeman was deliberately distinguishing a right or power, upon which a positive covenant might be made conditional, from the benefit of a covenant. This led him to submit that the communal areas could be used or enjoyed without the defendant walking on them and that their mere existence was sufficient to confer a relevant benefit. Mr Routley pointed to the judge's comment on the importance of the provision of services by the plaintiff to the character and atmosphere of Thamesmead and the advantage to the owners of properties therein that the value of their properties would be maintained by the continued provision of such services. I have no hesitation in rejecting this argument. Mr Routley seems to me to read far more into Lord Templeman's words than could possibly have been intended. Lord Templeman was plainly seeking to restrict, not enlarge, the scope of the exception from the rule that positive covenants affecting freehold land are not directly enforceable except against the original covenantor. Lord Templeman treated Halsall v Brizell as a case where the right to use the estate roads and sewers was conditional on a payment of a due proportion of the maintenance expenses for those facilities. While agreeing with the decision, Lord Templeman made clear that for a burden to be enforceable it must be relevant to the benefit. He said that simply to attach a right to a condition for payment would not render that condition enforceable. Similarly, it is not possible to enforce every burden in a conveyance by depriving the covenantor's successors in title of every benefit that he enjoyed under the conveyance. There must be a correlation between the burden and the benefit that the successor has chosen to take. Lord Templeman plainly rejected the notion that taking a benefit under a conveyance was sufficient to make every burden of the conveyance enforceable. Further, there is no authority to suggest that any benefit obtained by a successor in title, once the property has been transferred to him, to enable the enforcement of a burden under the conveyance is sufficient, even if that benefit was not conferred as of right by the conveyance. In my judgment, it cannot be sufficient that the taking of an incidental benefit should enable the enforcement of a burden against a person who has not himself covenanted to undertake the particular burden. Lord Templeman's reference to rights and power suggests that the successor in title must be able as of right to obtain the relevant benefit. I have already pointed out that, not only is there no right conferred on the defendant by the 1988 transfer to use the communal areas, but also the plaintiff has no obligation to maintain those areas.” “If the defendants did not desire to take the benefit of this deed, for the reasons I have given, they could not be under any liability to pay the obligations thereunder. But, of course, they do desire to take the benefit of this deed. They have no right to use the sewers which are vested in the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the roads of the park which lead to their particular house, No. 22, Salisbury Road. The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits.” “The reasoning of Lord Templeman suggests that there are two requirements for the enforceability of a positive covenant against a successor in title to the covenantor. The first is that the condition of discharging the burden must be relevant to the exercise of the rights that enable the benefit to be obtained. In Rhone v Stephens the mutual obligation of support was unrelated to and independent of the covenant to maintain the roof. The second is that the successors in title must have the opportunity to choose whether to take the benefit or, having taken it, to renounce it, even if only in theory, and thereby to escape the burden and that the successors in title can be deprived of the benefit if they fail to assume the burden. On both those grounds Halsall v Brizell was distinguished. Although Lord Templeman expressed his wholehearted agreement with Upjohn J's decision, Lord Templeman's description of that decision was limited to the defendant being unable to exercise the rights to use the estate roads and to use the sewers without paying his costs of ensuring that they could be exercised. Nothing was expressly said about the cost of maintaining the sea wall or promenade and it is a little difficult to see how, consistently with Lord Templeman's reasoning and, in particular, the second requirement for the enforceability of a positive covenant, the cost of maintaining the sea wall would fall within the relevant principle. ….. Mr Routley submits that the judge was wrong in law in holding that a positive covenant can be enforced against the assignee of the covenantor only where the burden of that covenant is a condition attached expressly or by implication to the exercise of a reciprocal right granted by the covenantee. He says that the judge should have held that such a covenant was enforceable against such a person where the burden of the covenant was a condition attached expressly or by implication to the enjoyment of a reciprocal benefit granted or provided by the covenantee, either contained in the same deed or as part of the same agreement or arrangement. In developing this argument, Mr Routley submitted that where the burden of a positive covenant is conditional upon a reciprocal or a relevant benefit, it will be enforced. He pointed out that this is not restricted to the benefit of rights granted by a deed. That is true. An oral agreement or arrangement will suffice, as was held in ER Ives Investment Ltd v High[1967] 2 QB 379 . But that is irrelevant, as here the plaintiff has only the transfer on which it can rely. Mr Routley also pointed out that the benefits need not be expressly related to a corresponding burden, but can be related by implication. That is not in dispute. He drew attention to the fact that Lord Templeman did not use the language of benefit throughout, but also referred to rights and power. He submitted that this meant that Lord Templeman was deliberately distinguishing a right or power, upon which a positive covenant might be made conditional, from the benefit of a covenant. This led him to submit that the communal areas could be used or enjoyed without the defendant walking on them and that their mere existence was sufficient to confer a relevant benefit. Mr Routley pointed to the judge's comment on the importance of the provision of services by the plaintiff to the character and atmosphere of Thamesmead and the advantage to the owners of properties therein that the value of their properties would be maintained by the continued provision of such services. I have no hesitation in rejecting this argument. Mr Routley seems to me to read far more into Lord Templeman's words than could possibly have been intended. Lord Templeman was plainly seeking to restrict, not enlarge, the scope of the exception from the rule that positive covenants affecting freehold land are not directly enforceable except against the original covenantor. Lord Templeman treated Halsall v Brizell as a case where the right to use the estate roads and sewers was conditional on a payment of a due proportion of the maintenance expenses for those facilities. While agreeing with the decision, Lord Templeman made clear that for a burden to be enforceable it must be relevant to the benefit. He said that simply to attach a right to a condition for payment would not render that condition enforceable. Similarly, it is not possible to enforce every burden in a conveyance by depriving the covenantor's successors in title of every benefit that he enjoyed under the conveyance. There must be a correlation between the burden and the benefit that the successor has chosen to take. Lord Templeman plainly rejected the notion that taking a benefit under a conveyance was sufficient to make every burden of the conveyance enforceable. Further, there is no authority to suggest that any benefit obtained by a successor in title, once the property has been transferred to him, to enable the enforcement of a burden under the conveyance is sufficient, even if that benefit was not conferred as of right by the conveyance. In my judgment, it cannot be sufficient that the taking of an incidental benefit should enable the enforcement of a burden against a person who has not himself covenanted to undertake the particular burden. Lord Templeman's reference to rights and power suggests that the successor in title must be able as of right to obtain the relevant benefit. I have already pointed out that, not only is there no right conferred on the defendant by the 1988 transfer to use the communal areas, but also the plaintiff has no obligation to maintain those areas.”
“The claimant can lose his right of action, or his right to an injunction, by failure to enforce, or acquiescence in, breaches of covenant or by a change in the character of the neighbourhood which he or his predecessors or others have made or allowed. If so, the covenant has ceased to have some or all practical effect.”
“The defendant’s first ground of defence is that there has been such a complete change in the character of the neighbourhood, apart from the plaintiff’s acts or omissions, that the covenants are now unenforceable. But to succeed on that ground the defendant must show that there has been so complete a change in the character of the neighbourhood that there is no longer any value left in the covenants at all. A man who has covenants for the protection of his property cannot be deprived of his rights thereunder merely by the acts or omissions of other persons unless those acts or omissions bring about such a state of affairs as to render the covenants valueless, so that an action to enforce them would be unmeritorious, not bona fide at all, and merely brought for some ulterior purpose. It is quite impossible here to say that there has been so complete change in the character of this neighbourhood is to render the covenants valueless to the plaintiffs. Whether right or wrong the plaintiffs are bringing this action bona fide to protect their property, and it is hopeless to say that the change in the character of the neighbourhood is so complete that it would be useless for me to give them any relief.”
“The defendant really relied on the acts and omissions of the plaintiffs and their predecessors as a bar to equitable relief. Now the plaintiffs are not unduly insistent on the observance of these covenants in this sense, that they do not conduct inquisitorial examinations into their neighbours lives, and do not make it their business to find out very carefully exactly what is being done, unless the matter is brought to their notice, either by complaints of other inhabitants, or by seeing some board or advertisement. I cannot think that plaintiffs lose their rights merely because they treat their neighbours with consideration. They are doing what they think sufficient to preserve the character of the neighbourhood. Whether they do enough is another matter, but I am quite satisfied that they are not intending, by their acts or omissions, to permit this area to be turned into anything other than a mainly residential area. There is no doubt however that they have permitted breaches of covenant in several cases where houses have been turned into flats, they have permitted at least four houses to be carried on as boarding houses or hotels, and they have not prevented – in some cases because they did not know of them – some half a dozen other houses being used as boarding houses or guesthouses.”
“In some of the cases it is said that the plaintiffs by their acts and omissions have impliedly waived performance of the covenants. In other cases it is said that the plaintiffs, having acquiesced in past breaches, cannot now enforce the covenants. It is in all cases a question of degree. It is in many ways analogous to the doctrine of estoppel, and I think it is a fair test to treat it in that way and ask, ‘Have the plaintiffs by their acts and omissions represented to the defendant that the covenants are no longer enforceable and that he is therefore entitled to use his house as a guesthouse?’ [ … ] The answer in my judgment is in the negative. The plaintiff’s acts and omissions did not justify the defendant in thinking that he was entitled to break the covenants by using Bella Vista as a boarding house. [ … ] On the whole I have come to the conclusion that it would be a denial of justice to the plaintiffs if I were to hold that they have so acted in the past is to disentitle them to relief for an undoubted breach of the covenants.”
“72. The Turners moved into number 21 in 1994. There is no evidence before me that they have acquiesced in any development carried out on any other plot in breach of any of the covenants in the deed poll since that date. So if a case of acquiescence is to succeed against the Turners, it is a case which must be based on the acquiescence of their predecessors in title. [ … ] 88. The question posed by Farwell J in the Chatsworth Estates case was (transposed to the facts of this case), ‘have the Turners or their predecessors in title, by their acts or omissions, represented to the Scotts and the Pryces that the covenants in the deed poll are no longer enforceable and that they are therefore entitled to construct properties in their rear gardens regardless of the restrictions contained in those covenants?’ The answer is, in my view, plainly not. Whatever was done or not done by the Turners’ predecessors cannot have had any effect on either the Scotts or the Pryces: as I have already explained, when giving evidence both Mr Scott and Mr Pryce denied all knowledge of the covenants in the deed poll until Mr Turner alerted them to these covenants in 2002 or 2003. From the time of their first becoming aware of the terms of the covenants, the Scotts and the Pryces can have been in no doubt that the Turners considered those covenants to be enforceable, and were determined to enforce them.”