Broadway Homes (Cambridge) Ltd v Mr Bruce Marshall and Others Case No: LP/28/2017 [2018] UKUT 264 (LC)

S84 Law of Property Act 1925:  “…. (1B) In determining whether a case is one falling within sub-section (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.”

The Upper Tribunal considered:

• whether the covenant impeded some reasonable user of land:  “The first two questions we have to decide is whether the proposed use is reasonable, and if so, whether the existence of the restriction impedes that use. (para 76)”  The tribunal made it clear that this was not a question of the reasonableness or otherwise of purchasing land with full knowledge of the restrictive covenant for the purpose prohibited by the covenant.  Also, it is the long term use of the land that is relevant not, what happens during the construction period.
• Whether the covenant secures practical benefits of substantial value or advantage:  The burden of proof is on the applicant to prove that it does not.  If the covenant does secure practical benefits but they are not of substantial value or advantage, money will be considered to be adequate compensation to the objectors.

On one house one plot scheme, see also Shephard v Turner [2006] EWCA Civ 8

Commentary

From reading the judgment, an application to remove a restrictive covenant could be a second chance for neighbourhood alliances and /or other people who have objected to the development from the start of the planning process to re-hash many of the planning points.  I’m relatively unfamiliar with applications to remove or modify restrictive covenants so perhaps this is an obvious point to make.  At any rate, the case highlights the relationship between planning considerations and applications to remove or modify restrictive covenants.  For instance, grant of planning permission for the same use is a matter to which significant weight is given, as confirmed in paragraph 78 of the judgment.