Martin & Anor, Re Application for Judicial Review [1988] EWCA Civ 1 (10 May 1988)

Martin & Anor, Re Application for Judicial Review [1988] EWCA Civ 1 (10 May 1988)

The grant of planning permission does not compel the discharge or modification of a restrictive covenant imposed by a section 37 (now section 52) agreement; the Lands Tribunal must determine on the evidence whether the statutory grounds for discharge or modification under section 84 are satisfied. In this case, the original purpose of the restriction—to prevent excessive density and protect visual amenity—could still be achieved, and the restriction continued to confer a practical benefit of substantial value to the local authority for which money would not be adequate compensation.

Citation
[1988] EWCA Civ 1
Parties
Appellants: Mr and Mrs Martin; Respondents: Hastings Borough Council
Jurisdiction
England and Wales
Judgment Date
10 May 1988
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Lands Tribunal
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Modification or Discharge of Covenants, Section 84 Law of Property Act 1925, Section 37 Town and Country Planning Act 1962, Section 52 Town and Country Planning Act 1971
Property Law Planning Law Restrictive Covenants Modification or Discharge of Covenants Section 84 Law of Property Act 1925 Section 37 Town and Country Planning Act 1962 Section 52 Town and Country Planning Act 1971

Case Brief

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Parties

Mr and Mrs Martin

Appellants

Hastings Borough Council

Respondents

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Lands Tribunal

Legal Issues

  1. 1 Whether a restrictive covenant imposed by a section 37 (now section 52) agreement should be discharged or modified under section 84 of the Law of Property Act 1925 after planning permission is granted for development contrary to the covenant.

Ratio Decidendi

The grant of planning permission does not compel the discharge or modification of a restrictive covenant imposed by a section 37 (now section 52) agreement; the Lands Tribunal must determine on the evidence whether the statutory grounds for discharge or modification under section 84 are satisfied. In this case, the original purpose of the restriction—to prevent excessive density and protect visual amenity—could still be achieved, and the restriction continued to confer a practical benefit of substantial value to the local authority for which money would not be adequate compensation.

Court Disposition

Appeal dismissed

Orders

  • Application to discharge or modify the restrictive covenant refused
  • Appellants to pay costs