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Bath Rugby intends to replace its existing stadium at the “Rec” in Bath with a new, bigger stadium.
However, in a judgment handed down in October 2020, HHJ Matthews held that the Rec is subject to a restrictive covenant that might have impeded that development. Namely, a covenant prohibiting doing anything “which may be or grow to be a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood”. That covenant was imposed by a clause 2 of a 1922 Conveyance of the Rec. The purchaser covenanted with “the Vendor [being the tenant for life of the Bathwick Estate] his successors in title and assigns”. The judge interpreted those words as identifying “the adjoining land or the neighbourhood” as the land intended to benefit from the covenant. He held that the benefit of the covenant was therefore annexed to that land.
In a decision handed down on Tuesday 21 December 2021 (Bath Rugby Ltd v Greenwood [2021] EWCA Civ 1927), the Court of Appeal allowed an appeal. Nugee LJ said (at [63]) that “I think it is asking too much of these words in clause 2 to make them do the work of not only identifying the scope of the covenant but also of identifying, at the level of conceptual certainty, the lands of the vendor to which the benefit of the covenant was intended to be annexed”. So, in the absence of anyone able to enforce the covenant, the covenant is not binding on Bath Rugby.
The judgment can be read here.
Tom Weekes QC (instructed for the first time on the appeal) appeared for Bath Rugby.
