Foley & Anor v [2008] EWLands LP_58_2006 (25 February 2008)

Foley & Anor v [2008] EWLands LP_58_2006 (25 February 2008)

The Tribunal found that the persons entitled to the benefit of the 1906, 1908, and 1915 restrictions had impliedly agreed to their modification by omission to enforce, so the application succeeded as to those. However, the 1960 restriction was not obsolete, continued to secure practical benefits of substantial value to the objectors, and its modification would cause injury. Therefore, the application to modify the 1960 restriction failed.

Citation
[2008] EWLands LP_58_2006
Parties
Applicant: Anthony Foley; Applicant: Karen Patricia Sinclair-Foley; Objector: Richard Edgecliffe-Johnson; Objector: Gillian Edgecliffe-Johnson
Jurisdiction
England and Wales
Judgment Date
25 February 2008
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Decision After Hearing
Outcome
Application granted in part and refused in part.
Legal Topics
Restrictive Covenants, Modification of Covenants, Section 84 Law of Property Act 1925, Planning Permission, Injury to Beneficiaries, Obsolescence of Covenants
Property Law Land Law Restrictive Covenants Modification of Covenants Section 84 Law of Property Act 1925 Planning Permission Injury to Beneficiaries Obsolescence of Covenants

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Parties

Anthony Foley

Applicant

Karen Patricia Sinclair-Foley

Applicant

Richard Edgecliffe-Johnson

Objector

Gillian Edgecliffe-Johnson

Objector

Procedural Posture

Application Under Section 84 of the Law of Property Act 1925 / Final Decision After Hearing

Legal Issues

  1. 1 Whether restrictive covenants imposed by four conveyances should be modified to permit construction of a detached dwellinghouse on the rear garden of Montana House
  2. 2 Whether the restrictions are obsolete under section 84(1)(a)
  3. 3 Whether those entitled to the benefit of the restrictions have agreed to their discharge or modification under section 84(1)(b)

Ratio Decidendi

The Tribunal found that the persons entitled to the benefit of the 1906, 1908, and 1915 restrictions had impliedly agreed to their modification by omission to enforce, so the application succeeded as to those. However, the 1960 restriction was not obsolete, continued to secure practical benefits of substantial value to the objectors, and its modification would cause injury. Therefore, the application to modify the 1960 restriction failed.

Court Disposition

Application granted in part and refused in part.

Orders

  • The 1906, 1908, and 1915 covenants are modified to permit the construction and use on the application site of a detached two-storey dwelling with a single storey garage and vehicular access pursuant to planning permission 04/01569/FUL granted by South Bucks District Council on 9 February 2005 and subsequent approval...
  • Ancillary and incidental temporary structures and rubbish are permitted during construction as required for implementation of the planning permission.