C London, to which the case related. case the which to London, in Square Leicester law—and the affected have they way the and aspects, historical and human of these some later, examine to 170 years interesting, be it might thought case,however. sideofthe historical be alandlawyer to humanand appreciate the land.You ofthe and occupiers donot have to against present, but alsoagainst future, owners way,particular are enforceable which not just promisescontractual not to uselandina inappropriate. entirely not is birthdays to reference law, the so land English in covenants of restrictive birth the representing as 9. Rep (1848) ER 774, 2PH SC All [1843-60] in Chancellor Lord of the QC Gasztowicz Steven of Leicester Square A legal history | www.newlawjournal.co.uk Leicester SquareinLondon. – andthewaytheyhaveaffectedlaw the humanandhistoricalaspectsofcase f restrictive covenants. f IN BRIEF On the anniversary of the decision, I decision, of the anniversary the On Restrictive covenants are, ofcourse, seen is which case celebrated the is This f f An examination,170yearslater,ofsome Tulk vMoxhay 170th anniversary of the decision decision of the 170th anniversary the 2018 marked December 22 However, of course. no, really, not Well, abirthday? have acase an (1848) and the birth of birth the and (1848)

Tulk v Moxhay Tulk vMoxhay 4 January 2019 4 January marks the 170th the marks birthday of

© Istockphoto/ilbusca the case puts it, ‘formed a plan, or scheme for for or scheme aplan, ‘formed it, puts case the of report the as and, land of the owner the order…’ ornamental and neat a in buildings, any with uncovered state, open an in ground, pleasure and garden a square form….as present its …in garden square and of ground or parcel piece said the maintain and …keep after here ever for times at all and time, to time from will, and shall assigns and heirs ‘his he that return in him with covenanted Elms, buyer, Mr etc’. The ways and easements all and garden, the around ironwork and railings iron the and thereof, centre the in standing statue… equestrian the with ground, or pleasure garden Square Leicester called commonly of land, parcel or piece that Tulk ‘all sold 1808 Mr had In The natureofthecase action. firm for as much however, so judgments, sophisticated for known not was Cottenham Lord that said be to It has difficult? more much so become really it on, of moving ways law, the the and long?so Has be to points, on seminal even judgments, for necessary it always is Why that. from learn might judges modern Some pages. two over 1850. until Chancellor Lord remained He 1846. in Minister Prime became he when Russell John Lord by Chancellor Lord appointed was and politician awhig was He Cottenham. Lord by decided was case The The judge&hisapproach His judgment in in judgment His Moxhay, a builder, subsequently became became subsequently Moxhay, abuilder,

Tulk vMoxhay Tulk vMoxhay ran to just just to ran Pro course of proceeding.’ course such any sanction would never court this informed, Iam as far as and, unconscientious; most and unjust most inequitable, most be would ‘That said: Cottenham Lord it. for value agreater able get to be would he restriction, the from free was who party third it a to able sell to was he if and restriction of the reason by land the for less paid have inevitably would land of the purchaser original the when covenant the enforce to not inequitable be it would that ground simple on the upheld was injunction The The basisofthedecision Chancellor. Lord the to injunction the against made was appeal An or pleasure-ground’. garden ‘square a as than other purpose any for garden the restraining him from converting or using granted was injunction an and followed action An ahoarding. erected and garden the around railings iron the down pulled shrubs, and trees of the several down cut to proceeded but Moxhay Tulkthereon’. objected buildings and of shops lines certain erecting without notice’. without it purchased he show can person that unless possession, in is who person the against effect into carried and it exercised have to and contract, the of benefit the to entitled is party other The possesses. himself he than notice with purchaser the to title abetter give to permitted not is owner the owner, the in property the to attaching [is] equity an there of it—‘if aware were they as long so taking subsequently on persons binding land, the created’. has property of the owner the which equity the to it subject takes land the takes who party possess’. yourself you vendor, than your and yourself between as interest to regard with title, higher a vendee or your assignee your to give and property, that over hand to permitted be not perty This equity was said to be attached to to attached be to said was equity This on equity—‘the however, based It was, will ‘you put it, Chancellor’s Lord the As LEGAL UPDATE 11 12 LEGAL UPDATE Property 4 January 2019 | www.newlawjournal.co.uk

It was admitted by Moxhay that the land the garden to its former condition, and sell it a hoarding in the garden. He was now was acquired by him with notice of the back to members of the Tulk family, whose subject to legal action by residents and in covenant, and, said Lord Cottenham, ‘it seems forbear had sold it with the original covenant. 1873 the Master of the Rolls ruled that the to me to be the simplest case that a Court The globe was duly built and the equestrian current members of the Tulk family were not of Equity ever acted upon, that a purchaser statue (which was in fact of George I on permitted to use it other than as a garden and cannot have a better title than the party under horseback) was buried beneath it. The inside required the hoarding to be removed. The whom he claims’. of the globe was hollow and the public could Tulks had finally lost—on their forbear’s own Out of this simple point subsequently enter it and view the surface of the earth on its original point. developed, however, a very large body of law, internal surface. with added requirements that must be met Its erection coincided with the Great Philanthropy in the Square revives—the if a subsequent owner of land is to be bound Exhibition at Crystal Palace and the globe garden protected for the public by a covenant entered into by a predecessor attracted more visitors than any other London In 1874 Lord Grant (a wealthy industrialist, in title, such as the need for the covenant to attraction aside from the Great Exhibition and MP for Kidderminster) bought the be restrictive of user and for the covenantee’s itself. garden (for a total, for the various portions, of land to be benefited. These were developed In 1862, the agreement for the placing of £11,060—the equivalent now of about £1.2m) on the basis that they fitted-in with the the globe expired. Wyld initially failed to and presented it to the Metropolitan Board of facts of Tulk v Moxhay, though they did not remove it, which led to another legal dispute, Works for the nation. It was laid out at Grant’s actually form any part of the judgment or the before it was finally removed later that year expense in lavish fashion. reasoning of Lord Cottenham. and the equestrian statue and the railings It seems that whoever was associated with restored. The garden was sold in parts to the square was somewhat blighted, however, So what of Leicester Square itself in various members of the Tulk family with one and within four years he had lost his fortune 1848? part retained by Wyld. and was insolvent. Leicester Square was very different then to Ironically, the garden then fell into the present day. The garden in the middle disrepair in the hands of the members of the Leicester Square now, & the ongoing was surrounded largely by houses. There was Tulk family itself, who had by their forbear’s legacy of the case also a German hotel, in which Karl Marx was original covenant sought to have it maintained The garden is now the responsibility of living in 1848, and where he was often visited properly by whoever owned it. Westminster City Council, whose fortunes by fellow revolutionaries. It is an interesting fluctuate like those of all local authorities, thought that the English courts were Further changes in the law & legal action and although it no longer contains Lord protecting the landscape views of, among by the Tulk family Grant’s elaborate Italianate fountain, the land others, German revolutionaries. The garden became such a disgrace to the remains an important open space of value to This bizarre fact is added to when it is capital that in 1861 Lord Redesdale told the the public. realised that great Chartist riots took place in House of Commons he would introduce a 170 years on, though mainly surrounded Trafalgar Square in early 1848—something bill to ensure the state of it was improved. In now by entertainment places and restaurants, the railings around Leicester Square would 1863 the Act 26 Vict. c. 13 was passed for ‘the the land which is the subject of the covenant have prevented there. protection of certain gardens or ornamental remains as an open space. Had it not been grounds in Cities and Boroughs’. This enabled for that covenant—entered into before any And what of the people involved in the the Metropolitan Board of Works in London planning laws were conceived—the square case? (and corporations elsewhere) to take over and would, by reason of the erection of buildings Charles Augustus Tulk died within a month of improve certain neglected enclosed gardens in the garden in the middle, as long ago the decision in the case, on 16 January 1849. or ornamental grounds. as 1848 have been entirely built up, and Edward Moxhay, who had hoped to make Again the Tulk family had changed the law the entire feel of this iconic part of London a lot of money by the development of the —this time by statutory intervention and this would have been much more dense and very garden, was heavily in debt after losing the time on the basis of their own neglect. different. SoTulk v Moxhay was historically case. He died just three months after it, on 19 Even more ironically, however, while important not only to the law, but to the feel March 1849. following the passage of the Act the of this part of London even today. Now, of Lord Cottenham had 15 children. After the Metropolitan Board of Works took charge of course, these things would be controlled by case he suffered from ill health and ceased the garden, John Augustus Tulk, the owner planning laws, but not in 1848, when there to be Lord Chancellor in June 1850. He went of one of the parts of it, then sued the Board were none. abroad on doctors’ advice and died in Lucca on for trespass in the Court of Queen’s Bench on What might the knock-on effects otherwise 29 April 1851, his 70th birthday. the grounds that the square was technically have been—what would the outside shots not within the definition of the type of garden of the many film premieres at the Odeon The history of the Square after Tulk v to which the Act applied (though it had in Leicester Square now have looked like, for Moxhay fact been introduced because of it). Like his example? In reality there may have been none, In 1851 James Wyld (a distinguished forbear, he succeeded in his action (pity the as such up-market facilities may in the 1930s geographer and for some years MP for Bodmin) draftsman). well have been established elsewhere instead. acquired the garden and sought to erect a great Anyone who thinks land law is not globe there—over 60 feet in diameter. The subsequent history of the Square— interesting in terms of what it covers, or is Tulk’s heirs (who still owned some the Tulks finally lose a case devoid of the human factor, need look no property around the square) threatened to The garden continued as a result to be further. NLJ take proceedings to prevent the erection of unmaintained, and the statue had by 1873 the globe, but reached an agreement with been virtually destroyed by acts of vandalism. Steven Gasztowicz QC is a member of Wyld to allow him to erect it and keep it Subsequently, John Augustus Tulk went Cornerstone Barristers & the author of there for a period of 10 years. This was on an to live in Algiers, for the sake of his health, Scamell & Gasztowicz on Land Covenants undertaking by him to then remove it, restore and allowed an advertising agent to erect (www. cornerstonebarristers.com).