Fosse Urban Projects Limited v Robert Whyte & Ors

Fosse Urban Projects Limited v Robert Whyte & Ors

Although the covenant was found to be obsolete and not to secure practical benefits of substantial value, the Tribunal declined to exercise its discretion to discharge or modify the covenant because the applicant deliberately built in breach of the covenant without proper process, amounting to cynical conduct.

Parties
Applicant: Fosse Urban Projects Limited; Objectors: Robert Whyte and Jane Chassels O’Raw; Objector: Helen Sarah Bell
Jurisdiction
England and Wales
Judgment Date
08 December 2023
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Determination
Outcome
Application refused
Legal Topics
Restrictive Covenants, Discharge or Modification of Covenants, Section 84 Law of Property Act 1925, Planning Permission, Neighbourhood Change
Property Law Land Law Restrictive Covenants Discharge or Modification of Covenants Section 84 Law of Property Act 1925 Planning Permission Neighbourhood Change

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Parties

Fosse Urban Projects Limited

Applicant

Robert Whyte and Jane Chassels O’Raw

Objectors

Helen Sarah Bell

Objector

Procedural Posture

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

Legal Issues

  1. 1 Whether the restrictive covenant is obsolete under s.84(1)(a) Law of Property Act 1925
  2. 2 Whether the covenant impedes reasonable use and secures no practical benefits of substantial value under s.84(1)(aa)
  3. 3 Whether discharge or modification will injure persons entitled to the benefit under s.84(1)(c)

Ratio Decidendi

Although the covenant was found to be obsolete and not to secure practical benefits of substantial value, the Tribunal declined to exercise its discretion to discharge or modify the covenant because the applicant deliberately built in breach of the covenant without proper process, amounting to cynical conduct.

Court Disposition

Application refused

Orders

  • The application to discharge or modify the restrictive covenant is refused.