Anthony Rogers & Anor v Michael Dinshaw & Ors
[2024] UKUT 1 (LC)
Clarion Housing Association Limited v VC Chitty & Ors
28 June 2024
[2024] UKUT 187 (LC)
Upper Tribunal
A housing association wanted to build homes on land that was only supposed to have sheltered housing for older people. The old rules were deemed outdated because that type of housing isn't needed as much anymore, and the new homes wouldn't harm neighbours. The court let them build the homes.
Key Facts
- •Clarion Housing Association applied to modify/discharge restrictive covenants prohibiting use of land other than as an 'old persons’ warden scheme'.
- •The covenants were imposed in a 1975 conveyance.
- •The land, previously used as St George’s Court, was demolished.
- •Clarion sought permission for general residential development.
- •Local residents objected, but did not attend the hearing.
- •The Tribunal inspected the site before the hearing.
Legal Principles
Section 84(1)(a) and (aa) of the Law of Property Act 1925 allows for modification/discharge of restrictive covenants if they are obsolete or impede reasonable use of land.
Law of Property Act 1925, s.84(1)(a) and (aa)
A restrictive covenant is 'obsolete' if, due to changes, the objectives for which it was imposed can no longer be achieved.
Re Truman Hanbury & Buxton & Co Ltd’s Application [1956] 1 QB 261
The Tribunal must consider the statutory development plan and any pattern of planning permissions when deciding on modification under s.84(1)(aa).
Law of Property Act 1925, s.84(1)(aa)
The Tribunal only has jurisdiction to discharge or modify negative covenants, not positive ones.
None explicitly stated, inferred from Tribunal's rejection of Mr. Bell's argument.
Outcomes
Application to modify clause 2(a) (prohibiting use other than as an ‘old persons’ warden scheme’) was allowed under s.84(1)(aa).
The covenant impeded reasonable use of the land for general residential purposes, and secured no substantial benefit to objectors. The proposed development was deemed reasonable and caused no significant harm to neighbours.
Application to discharge clause 2(b) (requiring vendors’ consent for development) was allowed under s.84(1)(a).
The original vendors are deceased, rendering the restriction incapable of achievement and thus obsolete.
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