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 benefit is not of any real importance in either money terms or in having some other advantage’ The application of the word ‘substantial’ was ‘a question of fact and degree having regard to all the circumstances’; and ‘The question I have asked myself in this case is whether the benefits and advantages to the (covenantee) are of so little weight in relation to what is proposed by the appellants that they can regard as having no real importance.’ The answer in this case was ‘No’.
Held: The award was upheld: ‘the modification of this restrictive covenant clearly resulted in the respondents suffering the loss of a practical benefit of substantial value or advantage. For that substantial loss or disadvantage they were entitled to substantial compensation.’
Stephenson LJ
[1974] 28 P and CR 200, (1975) 234 EG 363, [1976] RVR 219
Law of Property Act 1925 84
England and Wales
Cited by:
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
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. . .
Cited – Batchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
Cited – Winter and Another v Traditional and Contemporary Contracts Ltd CA 7-Nov-2007
The land-owners applied for a variation of a restrictive covenant to allow them to put a second house on their plot. They had bought out the right of the original builder, but a neighbour also had the benefit of the covenant. They now appealed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.186377