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 Secretary of State. When the authority still refused to release them, they applied to the Lands Tribunal under section 84 of the 1925 Act. The application was dismissed.
Held: The Court rejected the applicants’ argument that the purpose of the section 37 agreement had gone with the grant of planning permission and that the covenant should therefore be discharged or modified. The section 37 regime and the regime governing the grant of planning permission were distinct and independent from each other.
Fox LJ said: ‘In my view, the applicants’ contention is wrong in so far as it suggests that the granting of planning permission by the Secretary of State necessarily involves the result that the Lands Tribunal must discharge the covenant. The granting of planning permission is, it seems to me, merely a circumstance which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, destructive of the express statutory jurisdiction conferred by section 84. It is for the tribunal to make up its own mind whether the requirements of section 84 are satisfied. All the facts of the case have to be examined by the Lands Tribunal.’
Judges:
Fox LJ, Balcombe LJ, Sir Frederick Lawton
Citations:
[1989] 05 EG 85, [1988] EWCA Civ 1, [1989] 1 EGLR 193, [1988] 3 PLR 45, [1988] 57 PandCR 119
Links:
Statutes:
Law of Property Act 1925 84, Town and Country Planning Act 1962 37
Jurisdiction:
England and Wales
Cited by:
Cited – Lawntown Ltd v Camenzuli and Another CA 10-Oct-2007
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 23 November 2022; Ref: scu.260193
