Land

Conveyance - land for site of public house - covenant not to build licensed premises within half a mile - sale of adjacent land - covenant personal and not binding vendor's successors in title

Morrells of Oxford Ltd v Oxford United Football Club Ltd and others: CA (Schiemann, Robert Walker LJJ, Sir Ronald Waterhouse): 21 July 2000

In 1962, land intended for the site of a public house was conveyed by the council to the claimant's predecessor in title with a vendor's covenant not to permit the building of licensed premises within half a mile.

The council proposed to sell adjacent land, some or all of which lay within half a mile of the public house, to a developer for the construction of a football stadium and leisure facilities.

The claimant sought to enforce the 1962 covenant, but the claim was dismissed under CPR, Part 24.

The claimant appealed, contending that the judge had misconstrued the 1962 conveyance and misapplied s.79 of the Law of Property Act 1925.

John Cherryman QC and Colin Sydenham (instructed by Cartwrights, Bristol) for the claimant; Guy Fetherstonhaugh (instructed by Lewis Silkin) for the developers; Kathryn Purkis (instructed by Legal and Corporate Services, Oxford City Council) for the council.

Held, dismissing the appeal, that the covenant, properly construed, apart from the effect of s.79 of the 1925 Act, operated as a personal covenant only; that when considering the effect of s.79, the question was whether the words provisionally read in by the statute could, in the particular commercial context and having regard to the words of the particular document, usefully supplement those words, or whether any extended meaning read in by those means would on a fair reading be 'inconsistent with the purport of the instrument'; and that it would be inconsistent with the purport of the instrument to read into the covenant words which were not there.