Published: Fri, 12 Oct 2018
Re Page’s Application (1996) 71 P & CR 440, Lands Tr.
LAND LAW – RESTRICTIVE COVENANTS – DISCHARGE – PLANNING PERMISSION
The applicant sought to convert a stable into a dwelling to allow her to live near to her horses. The applicant had acquired planning permission, but was restrained from starting work by a restrictive covenant. She sought to have the covenant discharged.
S.84 of the Law of Property Act 1925 grants the Upper Tribunal discretion to alter or discharge restrictive covenants in certain circumstances. One circumstance is where covenant impedes some reasonable user and either is contrary to the public interest or does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them.
The issue in this case was whether these conditions were met, and the relevance of planning permission. The objectors argued that as the land was within the an ‘Area of Special Character’ and the Green Belt, there was a benefit and public interest in preserving the area’s historic character.
The Tribunal declined to discharge the covenant.
It accepted that preserving an area’s historic character is a practical benefit of advantage. While the proposed construction would not destroy this historic character, it would be the ‘thin edge of the wedge’ allowing further developments which would damage the area. In addition, it was relevant the covenant had only been recently created: to discharge it would make the sanctity of contract meaningless.
The Tribunal also concluded that the development was not in the public interest. Planning permission was relevant to this, though not decisive. The Tribunal noted that, with the exception of this instance, planning-policies in the area were normally very restrictive to maintain the Green Belt, indicating that it was in the public interest to prevent residential development.
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