Restrictive covenants: Transmission of burdenSale of land for purpose of public house - vendor covenanting not to permit competing operation on parts of land retained - whether subsequent buyers of those parts would be bound by the covenant - whether current owner of public house able to rely on s.

79 of the Law of Property Act 1925Morrells of Oxford Ltd v Oxford United Football Club and others: Chancery Division: Lloyd: June 9 2000In August 1962, the second defendant (the council) sold to the claimant's predecessor a small part of property known as Blackbird Leys Estate on terms that the part so conveyed would be developed and used as a public house.

By clause 3 of the conveyance, the council covenanted, for the benefit of the part conveyed, that it would not at any time permit any land or building in their ownership at the date of the conveyance, and within a half mile radius of that part, to be used for the preparation, supply, sale or consumption of intoxicating liquors.In or about 1999, the council entered into a contract for the sale of other parts of the estate to the first, third, fourth and fifth defendants (the company defendants) which had plans to build, among other things, a football stadium, hotel and leisure complex.

The claimant brought proceedings to restrain the defendants from breaching the clause 3 covenant.

The defendants applied for summary judgment in their favour, contending that the company defendants would not be bound by the covenant on completion of their purchase.Held: The defendants' application was allowed.On its proper construction, the obligation contained in clause 3 was personal to the council.

Indicators pointing away from the wider interpretation urged by the claimants included: (i) the absence in clause 3, when compared with the preceding clause, of any express reference to successors or assigns of the covenantor; and (ii) the fact that the prohibition was directed against permitting the use complained of rather than against the use itself: Oceanic Village v United Attractions Ltd [2000] 1 All ER 975; [1999] EGCS 152 distinguished.Thus construed, the covenant disclosed an intention sufficiently strong to displace the deeming provisions of s.

79 of the Law of Property Act 1925, which accordingly afforded no assistance to the claimant: Re Royal Victoria Pavilion, Ramsgate [1961] Ch 581; Earl of Sefton v Tophams Ltd (No 2) [1967] 1 AC 50; Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 EGLR 113 considered.Joseph Harper QC and Colin Sydenham (instructed by Cartwrights of Bristol) appeared for the claimant; Guy Fetherstonhaugh (instructed by Lewis Silkin) appeared for the first, third, fourth and fifth defendants; Kathryn Purkis (instructed by the solicitor to the council) appeared for the second defendants.