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. It was in effect part of a building scheme. The tribunal had found that the grant of planning permission indicated the reasonableness of the application, and that there would be only a limited adverse effect on neighbouring properties, and awarded small sums in compensation to the neighbours for expected disturbance.
Held: The tribunal had borne in mind the statutory requirements as interpreted in the cases to the ‘thin end of the wedge’ argument. As to the works required to broaden the drive, the Tribunal should have applied the test of what would be reasonable user as a whole, but (Lord Justice Carnwath): ‘account must be taken of the policy behind paragraph (aa) in the amended statute. The general purpose is to facilitate the development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the area. The section seeks to provide a fair balance between the needs of development in the area, public and private, and the protection of private contractual rights. ‘Reasonable user’ in this context seems to me to refer naturally to a long term use of land, rather than the process of transition to such a use. The primary consideration, therefore, is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which is inherent in any ordinary construction project. There may, however, be something in the form of the particular covenant, or in the facts of the particular case, which justifies giving special weight to this factor. ‘ Though there may have been weakness in the reasoning, the decision had properly taken account of the correct issues and the appeal failed.
Lord Justice Carnwath, Lord Justice Mummery, Lord Justice Latham
[2006] EWCA Civ 8
Bailii
Law of Property Act 1925 84(1)
England and Wales
Citing:
CitedGilbert v Spoor CA 1983
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 . .
CitedPalser v Grinling HL 1948
The House considered the meaning of the word in the phrase ‘substantial proportion of the whole rent’.
Held: In accordance with ‘one of its primary meanings’; it was to be read as ‘equivalent to considerable, solid or big’. The concept was . .
CitedSJC Construction v Sutton London Borough Council CA 1976
An appeal was mounted against the decision of the Lands Tribunal to allow the variation of a restrictive covenant under 84(1A)(b) only and not under 84(1A)(a). The tribunal had said that the word ‘substantial’ required applicants to show: ‘that the . .
CitedRe 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 . .
CitedStannard v Issa PC 1987
(Jamaica) The landowners proposed to erect six blocks providing some 40 dwellings, and sought variation of a restrictive covenant to allow this. The provsion as to the variation of restrictive covenants was whether there were: ‘practical benefits . .
CitedFairclough Homes Ltd, Re LT 8-Jun-2004
Application was made to vary a restrictive covenant: ‘ . . how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without . .
CitedMcMorris v Claude Brown and others PC 30-Jul-1998
(Jamaica) It could be a proper argument that the first relaxation of a restrictive covenant was merely the thin end of the wedge and it may be sufficient to reject the application though there was no immediate detriment to dominant land. . .
CitedRe Kershaw’s Application LT 1975
Two bungalows were to be built in the grounds of a house subject to a restrictive covenant. The tribunal considered the degree of disturbance which would be suffered by the objector neighbours.
Held: The neighbours would ‘suffer considerably . .
CitedRe Tarhale Limited LT 1990
Two five bedroom houses were proposed on the garden of a plot for which only one plot was permitted by the restrictive covenant. There was a specific covenant relating to the use of the approach drive and preventing its use by lorries or heavy . .
CitedRe Bromor Properties Limited LT 1995
On an application to vary a restrictive covenant preventing further building, construction disturbance was treated as one of number of factors justifying refusal to modify. . .
CitedRe Lee’s Application LT 1996
There was a proposal to erect a detached in house in the grounds of a property subject to a ‘one house per plot’ restriction. The tribunal considered the issue of disturbance: ‘I do not think that the prevention of a short term interference with the . .
CitedHampstead and Suburban Properties Ltd v Diomedous ChD 1969
A covenant against causing nuisance or annoyance is to be read to refer to wider nuisance than is referred to by the tort of nuisance. It is to be applied ‘according to robust and common sense standards’ Megarry J granted an interlocutory injunction . .
CitedShephard 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. . .
CitedRailtrack Plc (In Railway Administration) v Guinness Limited CA 20-Feb-2003
The case involved an appeal from the Land’s Tribunal arbitration award setting compensation for land to be acquired. The question was whether the value should have been that acceptable to a willing seller, or to a ‘a company regulated and subsidised . .
CitedDiggens and Others, Re (No 2) LT 21-Jul-2000
There was a proposal to erect five houses in the gardens of houses subject to restrictive covenants.
Held: The existing restrictions did secure practical benefits. The Tribunal referred to a number of factors, one of which was ‘the prevention . .
MentionedAndreae v Selfridge and Co Ltd CA 1938
The plaintiff had a hotel. The rest of the island had been acquired by the defendant which was demolishing and rebuilding the other properties. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and . .

Cited by:
CitedShephard 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. . .

These lists may be incomplete.
Updated: 26 January 2021; Ref: scu.237841