In the case of an application to remove or vary covenants for a property within a building scheme, there is ‘a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are satisfied.’ The court rejected a suggestion that ‘practical benefits’ were confined to financial factors, and held that loss of a landscape view, visible from land in the immediate vicinity of the objectors’ properties, was a sufficient reason to refuse modification. Eveleigh LJ: ‘ . . .the words . . are used quite generally. The phrase ‘any practical benefits of substantial value or advantage to them’ is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather of a restriction which secures any practical benefits. The expression ‘any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit it in the matter contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effect upon a broad basis.’
Judges:
Eveleigh LJ
Citations:
[1983] Ch 27
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Shephard and others v Turner and Another CA 23-Jan-2006
The appellants challenged the removal of a restrictive covenant on a neighbour’s house restricting further building on the land to allow further house in the garden. It was in a small close of houses all erected, and the covenant imposed, in 1952. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 May 2022; Ref: scu.238671