Housing Solutions v Bartholomew Smith

Housing Solutions v Bartholomew Smith

The covenants do not secure any practical benefit of substantial value or advantage to Mr Smith; modification will not injure him; the Hospice Trust consents; Tribunal has jurisdiction and exercises discretion to modify the covenants to permit the affordable housing.

Parties
Applicant: Housing Solutions; Objector: Mr Bartholomew Smith; Beneficiary of Covenant (non Objector): Alexander Devine Children’s Cancer Trust
Jurisdiction
England and Wales
Judgment Date
27 January 2023
Procedural Posture
Application for Modification of Restrictive Covenant / Upper Tribunal (lands Chamber) Decision
Outcome
Application allowed; covenants modified as requested.
Legal Topics
Restrictive Covenants, Modification of Covenants, Section 84 Law of Property Act 1925, Discretion of Tribunal, Compensation
Property Law Land Law Restrictive Covenants Modification of Covenants Section 84 Law of Property Act 1925 Discretion of Tribunal Compensation

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Parties

Housing Solutions

Applicant

Mr Bartholomew Smith

Objector

Alexander Devine Children’s Cancer Trust

Beneficiary of Covenant (non Objector)

Procedural Posture

Application for Modification of Restrictive Covenant / Upper Tribunal (lands Chamber) Decision

Legal Issues

  1. 1 Whether restrictive covenants should be modified to permit affordable housing built in breach of covenant
  2. 2 Whether covenants secure practical benefits of substantial value or advantage to objector
  3. 3 Whether applicant is estopped or barred from bringing application

Ratio Decidendi

The covenants do not secure any practical benefit of substantial value or advantage to Mr Smith; modification will not injure him; the Hospice Trust consents; Tribunal has jurisdiction and exercises discretion to modify the covenants to permit the affordable housing.

Court Disposition

Application allowed; covenants modified as requested.

Orders

  • Restrictive covenants on Exchange House site modified to permit affordable housing.
  • No compensation payable to Mr Smith.