This is an extract of our Wrotham Park Estate V. Parkside Homes Ltd. document, which we sell as part of our Commercial Remedies BCL Notes collection written by the top tier of Oxford students.
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WROTHAM PARK ESTATE V. PARKSIDE HOMES LTD FACTS By a conveyance dated April 10, 1935, the sixth Earl of Strafford conveyed to Aubrey Aston Blake some 47 acres of land ("area 14") situate in the parish of South Mimms in Hertfordshire and forming part of the Wrotham Park Estate. The second schedule to the conveyance contained, inter alia, the following restrictive covenant: "Not to develop the said land for building purposes except in strict accordance with a lay-out plan to be first submitted to and approved in writing by the vendor or the surveyors such plan to indicate thereon the roads, sewers and drains to be constructed." By 1955 the Potters Bar Urban District Council had acquired the triangle of land for PS225. In 1969 the council decided to sell off part of it as building land, and, having bought No. 11 Brooklands Gardens for PS6,500, they obtained planning permission from the Hertfordshire County Council to demolish it, so as to drive a road through the space thus made available, and to erect 13 houses and garages on the greater part of the triangle ("the allotment site"), leaving the apex unaffected. On September 9, 1971, the Potters Bar Urban District Council offered the allotment site for sale by public auction as freehold building land. The sale was extensively advertised and special conditions in the particulars of sale gave notice of the existence of the restrictive covenants which were set out in full in the charges register. At the auction sale the allotment site was knocked down to the first defendants, Parkside Homes Ltd. ("Parkside"), for PS90,000. Before buying neither Parkside nor their solicitors were provided with, nor requested, a copy of the restrictive covenants, although the answers to requisitions mentioned that approval of the proposed lay-out would be necessary. Parkside applied for and received permission for an additional house on the allotment site. On October 12, 1971, the allotment site was transferred to Parkside which was duly registered as owner. In the same month demolition of No. 11 Brooklands Gardens began and by the end of January some preliminary building work, including footings, had begun on one or more of the houses, and holding deposits had been received from some intending purchasers. By a letter dated January 5, 1972, managing agents for the plaintiffs drew Parkside's attention to the lay-out stipulation and sought an assurance that no building would take place. Parkside's solicitors replied on January 6 confirming that they were aware of the stipulation but that they were advised by counsel that it was not enforceable.
On February 14, 1972, the plaintiffs issued a writ against Parkside seeking an injunction to restrain them from building on the allotment site other than in accordance with a lay-out plan approved by the plaintiffs and a mandatory injunction for the demolition of any buildings in breach of the restrictive covenant. They did not seek interlocutory relief. The issue of the writ and statement of claim did not deter Parkside and building works continued. By mid-July 1972 the access road had been largely constructed and all the houses were in various stages of construction, some being well advanced. On that basis contracts were exchanged with the purchasers of all 14 houses between the beginning of October and the end of November 1972. The houses were completed by January 1973 and the new owners moved in.
HOLDING Mandatory Injunction Refused Mr. Newsom submitted, and I accept, that it is no answer to a claim for a mandatory injunction that the plaintiffs, having issued proceedings, deliberately held their hand and did not seek the assistance of the court for the purpose of preserving the status quo. On the other hand, it is, in my view, equally true that a plaintiff is not entitled "as of course" to have everything pulled down that was built after the issue of the writ. The erection of the houses, whether one likes it or not, is a fait accompli and the houses are now the homes of people. I accept that this particular fait accompli is reversible and could be undone. But I cannot close my eyes to the fact that the houses now exist. It would, in my opinion, be an unpardonable waste of much needed houses to direct that they now be pulled down and I have never had a moment's doubt during the hearing of this case that such an order ought to be refused. No damage of a financial nature has been done to the plaintiffs by the breach of the lay-out stipulation. The plaintiffs' use of the Wrotham Park Estate has not been and will not be impeded. It is totally unnecessary to demolish the houses in order to preserve the integrity of the restrictive covenants imposed on the rest of area 14. Without hesitation I decline to grant a mandatory injunction. Damages in substitution of the injunction I now consider the question what damages, if any, should be awarded to the plaintiffs. I am able under the jurisdiction which originated with the Chancery Amendment Act 1858 (Lord Cairns Act) to award damages in substitution for an injunction.
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