In the case heard this summer of San Juan and others v Allen the Defendants had applied for and been granted planning permission to demolish their home and construct four new properties on the site, despite there being a restrictive covenant which prevented the use of the property ‘for any other purpose than a private dwelling-house with garage for the use and occupation of one family only.’
The claimants made an application for summary judgment on their claim for a declaration against the defendants. They claimed that the defendants were bound by the terms of the covenant under the building scheme and also sought an injunction to restrain a breach of the covenant.
The defendants argued that:
- The declaration should not be made on hypothetical facts;
- The claim was premature as there was no evidence to say they would carry out the development; and
- There was a risk of inconsistent decisions between the Court and the Upper Tribunal and as such, the case such be stayed pending that application and outcome.
The Court found in favour of the claimants.
The Court said that the facts should not be treated as hypothetical where they were likely to occur ‘within a reasonable timescale’. The grant of planning permission clearly indicated an intention to build in accordance with the permission and on that basis, the claimants’ claim could not be regarded as premature or unnecessary. The threat of inconsistent decisions was not sufficiently strong not to grant the declaration and above all, the requirements for the building scheme were clearly met and enforceable.
The Court did not agree that the test for granting a declaration was the same for a quia time injunction and highlighted circumstances where an injunction would not be suitable but a declaration would be.
A sensible and interesting decision showing that matters don’t have to be advanced before the Court is prepared to exercise its jurisdiction.
*A quia time injunction is one granted where an actionable wrong has been threatened but not yet been committed in order to prevent the commission of the act.*
