Re Cordwell's Application [2008]

Re Cordwell’s Application [2008] 2 P & CR 570

LAND LAW – RESTRICTIVE COVENANTS – DISCHARGE – PLANNING PERMISSION

Facts

The claimant’s land was bound by a restrictive covenant restraining them from building more than one dwelling-house. The claimant wished to build a second bungalow, and acquired planning permission for this project. They then applied to discharge the restrictive covenant.

Issues

S.84 of the Law of Property Act 1925 grants the Upper Tribunal discretion to alter or completely discharge restrictive covenants in any of four circumstances. One such circumstance is where the continued existence of the covenant would impede 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 impeding the construction secured the beneficiaries of the covenant practical benefits of substantial value or advantage, and the relevance of planning permission to this. The objectors argued that the use would impact the amenity of their properties and alter the character of the estate, while the claimant argued that it is down to the local planning authority to protect the amenity and character of the community via planning policy.

Decision/Outcome

The Tribunal declined to discharge or alter the covenant.

The Tribunal emphasised that the planning permission and restrictive covenant regimes are two separate systems of planning control which might be relevant to each other, but not necessarily. At most, the grant of planning permission is relevant when determining whether the covenant grants practical benefits of value or advantage, but it was far from decisive of the issue.

The Tribunal concluded that preventing the loss of amenity to the objectors’ property was sufficient practical advantage to exclude the court’s discretion to discharge the covenant.