Sutcliff & Anor v No Respondent [2006] EWLands LP_20_2005 (10 October 2006)

Sutcliff & Anor v No Respondent [2006] EWLands LP_20_2005 (10 October 2006)

Restriction 1 is not obsolete and continues to serve its original purpose of controlling the type of residential development; restriction 6, while not obsolete, impedes reasonable use and does not secure practical benefits of substantial value or advantage to the objectors in the context of the proposed development. Therefore, restriction 6 should be modified by proviso to permit the approved development, with compensation payable to the objectors. The regulatory covenants (3, 7, 8) do not impede reasonable use and secure practical benefits; their discharge or modification is refused.

Citation
[2006] EWLands LP_20_2005
Parties
Applicant: Anthony Sutcliffe; Applicant: Joyce Sutcliffe; Objector: Michael O'Kane; Objector: Paula O'Kane
Jurisdiction
England and Wales
Judgment Date
10 October 2006
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Decision
Outcome
Application to discharge or modify restrictive covenants granted in part; restriction 6 modified by proviso, all other discharge/modification requests refused.
Legal Topics
Restrictive Covenants, Discharge or Modification of Covenants, Compensation for Modification, Residential Development, Planning Permission
Property Law Restrictive Covenants Discharge or Modification of Covenants Compensation for Modification Residential Development Planning Permission

Case Brief

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Parties

Anthony Sutcliffe

Applicant

Joyce Sutcliffe

Applicant

Michael O'Kane

Objector

Paula O'Kane

Objector

Procedural Posture

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

Legal Issues

  1. 1 Whether restrictive covenants on Oak Tree Lodge should be discharged or modified under section 84 of the Law of Property Act 1925
  2. 2 Whether the covenants are obsolete, impede reasonable use, or cause injury to the objectors
  3. 3 Whether compensation is payable for modification

Ratio Decidendi

Restriction 1 is not obsolete and continues to serve its original purpose of controlling the type of residential development; restriction 6, while not obsolete, impedes reasonable use and does not secure practical benefits of substantial value or advantage to the objectors in the context of the proposed development. Therefore, restriction 6 should be modified by proviso to permit the approved development, with compensation payable to the objectors. The regulatory covenants (3, 7, 8) do not impede reasonable use and secure practical benefits; their discharge or modification is refused.

Court Disposition

Application to discharge or modify restrictive covenants granted in part; restriction 6 modified by proviso, all other discharge/modification requests refused.

Orders

  • Restriction 6 to be modified by proviso to permit the development for which planning permission has been granted.
  • Applicants to pay compensation to the objectors in the sum of £17,100.