Back to News

Restrictive Covenants: tackling the Bath Rugby Case.

In December last year, the Court of Appeal determined the issue of enforceability of a restrictive covenant affecting development on the Recreation Ground (‘the Rec’) in Bath, the home of Bath Rugby Club (BRC). In this article we discuss the importance of tackling older restrictive covenants.

Legal Context

A restrictive covenant is an agreement or promise which prevent land from being used for a certain purpose or in a certain way. The original parties to a conveyance are generally able to enforce covenants on each other without too much legal trouble. However, enforceability can become very complex when the original parties sell their interests on. To show that the benefit of a covenant has passed to a successor in title, you need to establish that the covenant was annexed to the land. That is to say, that the benefit is attached to the land and it automatically passes on.

The Case

BRC has a long lease on the Rec, and it has plans to extensively redevelop the Bath Rugby Stadium and the surrounding area.

BRC had previously applied to the High Court to remove a restrictive covenant contained in a 1922 conveyance which purported to prevent anything which could be or could grow to be “a nuisance and annoyance or disturbance or otherwise prejudicially affect the adjoining premises or the neighbourhood”.

BRC argued that  the land which benefitted from the covenant was insufficiently defined, and therefore there was no annexation. However, the High Court denied BRC’s application. They held that the ‘adjoining land or the neighbourhood’ should be interpreted as referring to ‘buildings and land of the vendor…adjoining or near to’ the land conveyed.

The Appeal

BRC appealed and the Court of Appeal overturned the original decision.  The court held that the words “neighbourhood and adjoining land” were not a sufficient indication of the land which would the benefit from the covenant. The wording was “inherently imprecise” and that it would be “theoretically impossible to draw up a list of properties” which fall within the description.

This decision means that there was no annexation, and therefore no one was able to enforce the covenant. With the legal ‘scrum’ over, BRC are now free to continue with their development plans without fear that this covenant can be enforced.

Key Points

  • The decision highlights the critical importance of conducting a good and thorough title investigation when planning to develop or redevelop land. Identifying issues early will help you tackle them efficiently.
  • It shows that you should not ignore old covenants. Often older covenants are disregarded on the grounds that no one will enforce them, but, as shown above, this is not always the case.
  • The case also illustrates the need to ensure that the land which benefits from a covenant is clearly defined. The land which benefits should be easily ascertainable, and ambiguity should be avoided at all cost.

If you have an enquiry regarding matters discussed in this article, please contact a member of our Litigation & Disputes department.

Written by Tom Spratley – Trainee Solicitor

What People Are Saying

Hear what some of our clients have to say about Mercers Solicitors...

I just want to thank you again for all your help… we couldn’t have placed ourselves in more trusting, caring hands than your good kind self. It was great we had the opportunity to meet you when we did Alex!

Mrs A from Maidenhead

Peter has gone above and beyond with his informative, sympathetic and extremely wise advice.

Mrs H of Oxfordshire

We should like to place on record our appreciation of the highly professional and yet patient and stress-free manner in which Mercers have handled these matters for us.


I really do want to thank you for your patience, kindness and the meticulous way in which you tackled both me and my problem.

Mrs D from Maidenhead

Very professional and helpful. Don't know what I would have done without Shella!

Mrs G of Australia

You are so meticulous, efficient, and very responsive. Your professionalism and quality of work is outstanding. The fact that this matter was carried out during the very challenging times we have all experienced due to the Pandemic, makes the level of your service even more outstanding. Throughout the complete process I have always had the feeling that I was working with a friend I had known for years.

Mr D of Oxfordshire

Having sometimes experienced slow and reactive lawyers, it was refreshing to deal with Ruth and her team. The transaction was done promptly and smoothly. We will definitely use Ruth again and would have absolutely no hesitation in recommending her to family and friends.

Mrs B of Berkshire.

We have never experienced such fast and efficient return of communication from any past or present Paralegal/ Solicitor. Thank you Jess and Sam.

Mr & Mrs Masri of Berkshire

I have always received first class service from Sarah Crowther. Her advice and suggestions have always proven excellent. What she says she will do she does.

Mrs W of Berkshire

Thank you for all your care and understanding in helping me … through the complexity of a will.

Mr P from Berkshire

Quality, professional firm with integrity, nice people – I had a first class experience.

Mr A S of Oxfordshire

We have very much appreciated Paula's patience and expert guidance through, for us, a tricky landscape.

Mr A and Mrs S

Contact Us

Talk to a Mercers expert today

Contact Us