by Mira Bar-Hillel
In the mid-Eighties, Victor Mishiku was working in his parents' import business and living on the green and pleasant Hanger Hill Estate in Ealing. The housing boom was at its height, and builders were scouring the back gardens of London's suburbs for "development opportunities".
The residents became desperate to protect the special character of Ealing once described as the "Queen of Suburbs", and a residents' group, led by Mr Mishiku, was formed. Extensive research uncovered the answer to their problems - restrictive covenants, which prohibit any further development on the land concerned.
The first big covenant success involved Martin and Anne Tighe. The day after they moved into their Ealing dream home in March 1987, they discovered the council had given planning permission for a developer to demolish the house next door and drive a road through to several blocks of flats to be built just beyond their garden wall.
Fortunately for them, the residents group had already established that The Prudential Assurance Company, which bought 700 of the Hanger Hill Homes in 1906, imposed restrictive covenants on virtually all of the homes it sold onto owner occupiers between the Twenties and Sixties.
The Pru stipulated that the homes had to remain as private dwellings or professional residences and that the gardens could only be used as gardens, with nothing built on them that could be a nuisance to the neighbours or the neighbourhood.
The group successfully challenged the developer in the High Court and began a battle of attrition with the local planning officers and committee, which ended in May 1987 when the council rejected the controversial scheme.
News of Victor's "covenant movement" began filtering through to other beleaguered London suburbs. The next big success came in 1989, when a £20 million proposal by Charles Church for 70 dwelling on the site of six houses on the Harrow Weald Park Estate was abandoned shortly after the residents issued writs for breach of covenant.
At the same time, a High Court judge ordered a man who built a £250,000 bungalow in breach of covenants in Chingford, Essex, to demolish the illegal building, although he had planning permission for it.
The judge said: "It is fortunately still the law that people who have contracts are entitled to enforce them regardless of what local authorities think is suitable in terms of planning permission."
Chelmerton Avenue, Chelmsford
// / This indenture saved residentsfromlosing theirbigbackgardens to developers
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The estate of detached and semi-detached houses was developed in 1924. Houses on one side of Chelmerton Avenue had very long back gardens with a park behind. Restrictive covenants prohibit the back land being used for anything other than private gardens.
In October 1998, developer P O Plummer applied for planning permission for nine houses with garages on the back gardens. Two owners offered to sell them their houses and two others gave them options on part of their gardens. The chairman of the residents' association, Chas Amiss, was offered £200,000 for his garden which he angrily turned down.
On Victor Mishiku's advice, the association appointed solicitor Gerald Moran of Dawson and Co.
He issued a writ last month, citing the covenants. In less than 10 days Plummer agreed to pull out and pay some of the residents' costs.
"We are pursuing our case against the owners who agreed to sell the land, in case another developer turns up," says Mr Moran.
Sutton and Epsom Rugby Club
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/ Anthony Widdett, Ginny Duffield and Chas Amiss of the residents' association with the indenture prohibiting use of development on local park land
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Plans by a rugby club in Cheam to sell its site to a house builder for a 55-home estate were stopped by 111 local residents last May when a High Court judge decided that a restrictive covenant on the land meant no houses could be built on it.
In 1936, when the land was sold to the rugby club, the contract of sale included a restrictive covenant which clearly bans any further building on the club land.
The row began in August 1995, when the Sutton and Epsom Rugby Club announced its intention to sell the grounds for house building.
The developer bought two houses nearby which were to be demolished to make way for a new road into the new estate.
Planning permission was won on appeal in 1997, but by then the Cheam Neighbourhood Action Group, led by publishing executive Roger Hale, and assisted by Victor Mishiku, had unearthed their hidden treasure.
In the autumn the residents issued a High Court writ to stop the developers and the case was won some six months later.
Seymour Road, St Albans
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/ Seymour Road residents Trevor and Jeanette Grenby, who led the fight against developers Litchfield
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The 7th Earl Spencer, the grandfather of Diana, Princess of Wales, sold off land in St Albans in 1923, but imposed covenants limiting development to a single detached house or one pair of semis per plot, which have all been built.
Last year developers Litchfield made a planning application for five large detached houses with garages on the backlands.
The residents tried to get the Spencer estate to give them details of the covenant but were rebuffed.
In May, the residents issued a writ against Litchfield on the basis of what they thought the covenant would be. At that point the Spencer estate relented and provided the details. In July, the High Court upheld the covenants and ordered costs against Litchfield.
The developers said they would apply to the Land Tribunal to have the covenants scrapped, but this has not happened.
In the meantime, the plans were rejected by the council and an appeal inquiry took place last month. "Even if they win the appeal, Litchfield will not be allowed to build while the covenants are in force", says Gerald Moran, who represented the residents.
SuttonGarden Suburb recreation ground
The recreation ground was used as "dig for victory" allotments during the First World War and a restrictive covenant was put in place in 1925 to protect it from development.In September 1997 the owners decided to sell the land for development and issued the allotment holders with notices to quit. In May 1998 a planning application was made by Wimpey Homes for 28 houses. The residents knew that their massive objections would not be enough. They then saw an Evening Standard article on the battle over the Sutton and Epsom Rugby Club and contacted Victor Mishiku.
As a result, pressure was turned on Sutton Council not to waive the covenant. In July the council turned down Wimpey's application. The builders lodged an appeal which was set for January this year. But in November 1998 Wimpey withdrew its applications. It is now selling the house it had bought which needed to be demolished to provide an access road to the site.
The residents are jubilant. "Recent events have made it clear to us that, should there be any further threat of development of the allotment land, we can have absolute confidence that Sutton Council will stand by us and the covenant", says Angela King. "We are delighted".
How to find restrictive covenants
1. The key to finding helpful covenants is the Land Registry. Covenants are normally recorded on the title. If you cannot find the address for your local district Land Registry, contact head office (0171 917 8888) or ask a solicitor.2. When looking for covenants you will need to get an "office copy" of Register entries for the property you are checking and also the "filed plan for the registered title". You will need the precise address of the site. The fee is £8 per title. A growing number of solicitors can now access the Register by computer, which will save time.
If the Register refers to a separate document containing covenants, you will need to ask for a copy of it (the fee is an additional £4).
3. In some cases the backland itself will not be subject to a covenant, but the demolition of property to create an access road to a new development might be. If a covenant stipulates use limited to "a private dwelling house", then neither a block of flats, a nursing home or a hostel are permitted. Check everything carefully.
4. If the title is not registered, you will need to work harder. Try to find from old public records or directories who was the first occupier of the property. Your mortgage lender may have useful information - ask for help.
5. If none of the above is working, contact Victor Mishiku, who offers free covenant research. Call him on 0181 991 2538, or write to him at PO Box 841, Bollo Lane Sorting Office, Acton, London W3 8RL.
6. Act quickly, as soon as you become aware of the proposed development, and get together with as many fellow residents as possible: - record your written objection to the breach of covenant as soon as you find out about it. - do not be fobbed off by dismissive responses from the developer. - do not wait for the plans to receive planning permission. - serve your writ before the developer has bought the land, when it is easier for them to pull out.
7. If your solicitor tells you that covenants are worthless or that they can only be enforced by the person who imposed them, change your solicitor. An expert solicitor will cost more, but you will have a much better chance of winning, in which case the opponent will pay most of your costs.
Many covenant successes have been won by Gerald Moran of Dawson and Co (0171 421 4800).
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© Associated Newspapers Ltd., 02 March 1999
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