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Paul Howard & Ors v Sunita Surana

23 October 2023
[2023] UKUT 248 (LC)
Upper Tribunal
Two people built houses that were bigger than allowed and wanted to change the rules so it would be legal. A judge decided to let them because the changes wouldn't hurt their neighbour very much, even though they broke the rules first.

Key Facts

  • Ms. Sunita Surana owns property adjacent to plots 17 and 19 Icklingham Road, subject to restrictive covenants.
  • Previous Tribunal decision (Re Surana's Application [2016] UKUT 0368 (LC)) modified covenants to allow residential development under specific planning permission (2014/4564), maintaining a 2.5m hedge.
  • Subsequent owner, Indigo, obtained new planning permissions (2019/3475, 2020/1742, 2021/0058) for larger houses and altered access through the hedge.
  • Current applicants (Howards and Baines) purchased plots and are building houses exceeding the previous permission.
  • Applications seek modification of covenants to allow the constructed houses and new access through the hedge.
  • Ms. Surana objects to the Baines' application, citing increased size and proximity of the house to her property.

Legal Principles

Section 84 of the Law of Property Act 1925 allows modification of restrictive covenants if their continued existence impedes reasonable land use and either doesn't secure substantial practical benefits or is contrary to public interest, with adequate compensation for affected parties.

Law of Property Act 1925, Section 84(1)(aa), (1A)

The Tribunal has discretion whether to exercise its power under s.84, considering the statutory development plan, the context of the restriction, and material circumstances.

Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45

In considering modification under s.84(1)(aa), the Tribunal assesses whether the restriction secures substantial practical benefits and whether adequate compensation is available.

Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45

Outcomes

Applications granted.

The Tribunal found that the new accesses and larger houses represent reasonable use, and preventing their construction doesn't secure substantial practical benefits to Ms. Surana, considering the previous modifications and the lack of evidence suggesting significant devaluation of her property. The Tribunal exercised its discretion to regularise the situation despite the prior breaches, emphasizing that modification doesn't absolve past responsibility.

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