Sharon Shac-Yin Cheung & Anor. v Neil John Mackenzie
[2023] EWHC 220 (Ch)
Neil John Mackenzie v Sharon Shac-Yin Cheung & Anor
17 January 2024
[2024] EWCA Civ 13
Court of Appeal
Two neighbors argued over building plans. An old agreement allowed the land's original owner (a charity) to change the rules about building. The court decided the charity could let the neighbor build the flats, even though the old rules said only one house could be built. The court said the wording of the agreement allowed the change.
Key Facts
- •Mr. Mackenzie (claimant/appellant) and Ms. Cheung (defendant/respondent) own neighboring properties in Croydon, formerly part of the Fox Farm Estate owned by the Whitgift Educational Foundation.
- •Ms. Cheung obtained planning permission to demolish her house and build nine flats.
- •The 1947 Conveyance contains restrictive covenants, including limitations on building on the land.
- •A crucial clause (paragraph 11 of the Third Schedule) allows the Foundation to depart from the stipulations of the covenants.
- •The Foundation agreed to release Ms. Cheung from the covenants via a Deed of Modification.
- •Mr. Mackenzie argued that the development would breach the restrictive covenants and sought declarations and injunctions.
Legal Principles
Interpretation of contracts requires assessing the objective meaning of the language chosen, considering the context and background knowledge available to the parties.
Wood v Capita Insurance Services Ltd [2017] UKSC 24
The benefit of a restrictive covenant can be transmitted by assignment, annexation, or a building scheme. Annexation to retained land means only owners of land retained by the original covenantee can enforce.
Whitgift Homes Ltd v Stocks [2001] EWCA Civ 1732
A grantor cannot derogate from grant; they cannot do anything to substantially deprive the grantee of the benefit conferred.
Johnston & Sons Ltd v Holland [1988] 1 EGLR 264, Molton Builders Ltd v City of Westminster (1975) 30 P&CR 182
Outcomes
Appeal dismissed.
The court found that paragraph 11 of the Third Schedule allows the Foundation to release or waive the covenants, and that the proposed development wouldn't constitute a breach of covenant or derogation from grant.