Nigel James Rutherford Briant v Hugo John Baldacchino
[2024] UKUT 164 (LC)
Colin Bernard Medley v Ross Mackenzie & Ors
8 May 2024
[2024] UKUT 112 (LC)
Upper Tribunal
Someone wanted to build two houses where one bungalow stood, but rules prevented it. A court ruled that some of the rules no longer applied, but others did. Keeping the area open and nice, and protecting an old wall, was more important than letting the person build their houses.
Key Facts
- •Mr. Medley applied to discharge or modify restrictive covenants preventing him from demolishing his bungalow (number 12 High Elms) and building two houses.
- •The covenants were imposed in 1966 and 1967, some relating to a dissolved company, High Elms Properties Limited.
- •Objectors included the owner of Forest House and other High Elms property owners.
- •Mr. Medley's proposed development involved land outside his registered title, raising a jurisdictional issue.
- •The development involved building two three-story houses with basements, potentially impacting the open aspect and character of the High Elms estate.
Legal Principles
Section 84 of the Law of Property Act 1925 allows the Upper Tribunal to discharge or modify restrictive covenants if certain conditions are met, including obsolescence or lack of substantial practical benefit.
Law of Property Act 1925, Section 84
A restrictive covenant requiring consent from a dissolved company is considered discharged.
Crest Nicholson Residential (South) Ltd v McAllister [2002] EWHC 2443
In determining whether a covenant should be modified under section 84(1)(aa), the Tribunal considers whether the covenant impedes reasonable use, provides substantial practical benefits, and whether money is adequate compensation.
Re Bass Ltd’s Application (1973) 26 P & CR 156
Restrictive covenants are annexed to land and benefit subsequent owners.
Federated Homes Limited v Mill Lodge Properties Limited (1980) 39 P & CR 576
Outcomes
Covenant 3(c) (requiring consent from High Elms Properties Limited) was discharged due to the company's dissolution.
The covenant became obsolete upon the company's dissolution, aligning with the principle in Crest Nicholson v McAllister.
The application to modify the remaining covenants was refused.
The Tribunal found that the covenants provided substantial practical benefits to the objectors by preserving the open aspect, preventing over-development, and protecting the listed wall. The applicant's proposed development would damage these benefits.