Broomhead & Ors, Re Law Of Property Act 1925 [2003] EWLands LP_7_2001 (13 March 2003)

Broomhead & Ors, Re Law Of Property Act 1925 [2003] EWLands LP_7_2001 (13 March 2003)

The restrictive covenant is not obsolete as its original purpose remains capable of fulfilment. However, the restriction does not secure practical benefits of substantial value or advantage to the objector, and its continued existence would impede reasonable use of the land. Access is not impeded by a ransom strip as the adopted highway extends to the boundary. Modification of the covenant is appropriate to permit development of five houses.

Citation
[2003] EWLands LP_7_2001
Parties
Applicant: John Peter Broomhead; Applicant: John Michael Kidd; Applicant: Barbara Ann Kidd; Objector: Upton Hunter Estates Limited
Jurisdiction
England and Wales
Judgment Date
13 March 2003
Procedural Posture
Application Under Law of Property Act 1925 S.84 / Final Judgment
Outcome
application for modification granted; discharge refused
Legal Topics
Restrictive Covenants, Modification of Covenants, Obsolescence, Practical Benefits, Access Rights
Property Law Land Use Planning Law Restrictive Covenants Modification of Covenants Obsolescence Practical Benefits Access Rights

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Parties

John Peter Broomhead

Applicant

John Michael Kidd

Applicant

Barbara Ann Kidd

Applicant

Upton Hunter Estates Limited

Objector

Procedural Posture

Application Under Law of Property Act 1925 S.84 / Final Judgment

Legal Issues

  1. 1 Whether restrictive covenant is obsolete under s.84(1)(a)
  2. 2 Whether covenant secures practical benefits of substantial value under s.84(1)(aa)
  3. 3 Whether modification or discharge should be granted

Ratio Decidendi

The restrictive covenant is not obsolete as its original purpose remains capable of fulfilment. However, the restriction does not secure practical benefits of substantial value or advantage to the objector, and its continued existence would impede reasonable use of the land. Access is not impeded by a ransom strip as the adopted highway extends to the boundary. Modification of the covenant is appropriate to permit development of five houses.

Court Disposition

application for modification granted; discharge refused

Orders

  • Restriction modified to permit development of up to five houses on the paddock
  • Nil compensation payable to objector