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Conveyancing Case Law – Variation of Restrictive Covenant 2009

A case heard by the Lands Tribunal on the 21st May 2009 concerned restrictive covenant modification for  proposed development of a detached bungalow
to the rear of existing house . The Tribunal had to consider whether practical benefits of substantial value or advantage secured to objectors. The Tribunal made a decision for a £23, 000 awarded under the Law of Property Act 1925 s84(1)(aa)

Mr David and Mrs Susan Robinson (the applicants) wanted to build a detached bungalow in the rear garden of their house at 5 Beckworth Close, Lindfield, Haywards Heath, West Sussex RH16 2EJ (the application land). They had obtained planning permission to do so on appeal, on 6 October 2004. They were prevented from implementing the planning permission by a restrictive covenant contained in the Third Schedule to a conveyance of the application land dated 22 September 1943 which states:

“NOT at any time to erect or suffer to be erected more than one dwelling house
upon the said land nor any outbuildings other than a garage tool house conservatory
summerhouse or similar building to be used in connection with the dwelling house
erected thereon”.

Mr and Mrs Robinson made an application under section 84 of the Law of Property Act 1925 on 15 January 2008 for the modification of this restriction to allow the construction of the bungalow for which planning permission has been obtained. They rely upon ground 84(1)(aa). There were nine objections to the application, eight of which are from the freeholders of other dwellings in Beckworth Close who have the benefit of the restrictive covenant. The other objection is from Beckworth Close Lindfield Limited, the owner of the private road serving the application land and all the other dwellings in the Close.

The Tribunal decided that order should  be made subject to the prior payment of the compensation referred to in the following paragraph:

In the conveyance dated 22 September 1943 – Restriction 2 is modified on ground (aa) by insertion of the following:

“Provided that a new detached bungalow may be constructed in accordance with the
planning permission granted in appeal on 6 October 2004 in respect of planning
application reference LF/03/02214/FUL dated 28 August 2003 and the plan submitted therewith as amended by revised layout plan drawing No. DMH/90036. 1/1. Reference to the said planning permission shall include any subsequent planning permission that is a renewal of that planning permission and any other matters approved in satisfaction of the conditions attached to such permission. ”

An order modifying restriction 2 in accordance with the above was made by the
Tribunal provided, within three months of the date of this decision, the applicants shall have paid the total sum of £23, 000 split between the objectors ( set out in the order )  A full copy of the order can be found at http://www.landstribunal.gov.uk/judgmentfiles/j622/LP-4-2008.pdf

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