Objecting neighbours appealed against a decision allowing a variation of a restrictive covenant to allow the owner to convert a dwellinghouse into two self-contained apartments.
Held: The appeal failed. The power in the 1985 Act to vary a covenant must be used judicially, and ‘the statute does not create any presumption in favour of the variation of a restrictive covenant where planning permission has been granted.’ However the court must have regard to the interests sought to be protected by the restrictive covenant, and the extent to which those interests will be harmed by the proposed variation, as well as to the interests of the person seeking to vary the covenant and the advantages that will accrue from the variation. That last factor may engage matters of public as well as private interest, in particular where there are said to be policy considerations in favour of the more intensive use of existing dwelling-houses. The judge was wrong to confine his attention to matters not taken into account in the planning decision. The provisions of the 1925 Act as amended and the 1985 Act differed, with the latter giving a broader discretion. It was necessary to allow also for the urgent need for additional housing in London. This reflected the purposes of the 1985 Act.
Judges:
Richards LJ, Gage LJ, Lawrence Collins LJ
Citations:
[2007] EWCA Civ 949, Times 14-Nov-2007, [2008] JPL 1027, [2008] 1 WLR 2656, [2007] NPC 103, [2008] 1 All ER 446, [2008] 1 EGLR 73, [2008] 1 EG 136, [2007] 42 EG 295
Links:
Statutes:
Housing Act 1985 610, Law of Property Act 1925 84(1)
Jurisdiction:
England and Wales
Citing:
Cited – Sarum Trust Ltd v Duke of Westminster 1953
Lessees asked the court for variation of the terms of their lease so as to permit further subdivision of the premises. The application failed in the county court. The landlord’s interests elsewhere might be affected if the application were granted, . .
Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – Re Martin and Another’s Application CA 10-May-1988
The applicants had agreed with the planning authority under section 37 of the 1962 Act that part of their land would be used only as a private open space. They later sought planning consent to build a house. The consent was granted on appeal to the . .
Cited – Re Snaith and Dolding’s Application LT 1995
The applicants sought modification of a covenant, to enable them to build a second house on a single plot within a building scheme.
Held: ‘The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the . .
Cited – Re Hunt’s Application LT 1997
Application was made to relax a restrictive covenant to allow a further house to be built within a garden plot.
Held: The scheme had the primary intention of securing a relatively low density residential development of houses and bungalows. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 12 November 2022; Ref: scu.259767
