Marcello Developments Ltd, Re [2001] EWLands LP_18_1999 (30 March 2001)

Marcello Developments Ltd, Re [2001] EWLands LP_18_1999 (30 March 2001)

The restrictive covenants in question are obsolete in relation to the proposed development, as the original purposes (frontage, building line, and use as private dwellinghouses) can no longer be fulfilled due to changes in the character of the neighbourhood and the planning context. The restrictions do not secure practical benefits of substantial value to the objectors that would justify refusal of modification/discharge, and any personal disadvantages can be compensated by a monetary payment.

Citation
[2001] EWLands LP_18_1999
Parties
Applicant: Marcello Developments Limited; Objector: Barnet London Borough Council; Objector: J M Fassbender; Objector: Mrs Zelda Fassbender; Objector: Mrs Michelle Queenie Kauffman; Objector: Miss Razia Currimbhoy; Objector: Ms Salimah Currimbhoy; Objector: Mr Zafar Currimbhoy; Objector: Mrs Carole Harding; Objector: Mrs Hifnun Nahar Islam; Objector: Mr Raymond Beckman; Objector: Mrs Carole Beckman; Objector: Mrs Alison Jodieri; Objector: Mr Sadegh Jodieri
Jurisdiction
England and Wales
Judgment Date
30 March 2001
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Decision After Consolidated Hearing
Outcome
Application granted in part: restrictive covenants discharged or modified as specified.
Legal Topics
Restrictive Covenants, Discharge and Modification of Covenants, Section 84 Law of Property Act 1925, Planning Permission, Compensation for Modification of Covenants
Property Law Land Use Planning Law Restrictive Covenants Discharge and Modification of Covenants Section 84 Law of Property Act 1925 Planning Permission Compensation for Modification of Covenants

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 24 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Marcello Developments Limited

Applicant

Barnet London Borough Council

Objector

J M Fassbender

Objector

Mrs Zelda Fassbender

Objector

Mrs Michelle Queenie Kauffman

Objector

Miss Razia Currimbhoy

Objector

Ms Salimah Currimbhoy

Objector

Mr Zafar Currimbhoy

Objector

Mrs Carole Harding

Objector

Mrs Hifnun Nahar Islam

Objector

Mr Raymond Beckman

Objector

Mrs Carole Beckman

Objector

Mrs Alison Jodieri

Objector

Mr Sadegh Jodieri

Objector

Procedural Posture

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

Legal Issues

  1. 1 Whether restrictive covenants on the land are obsolete or should be discharged/modified under Section 84 of the Law of Property Act 1925
  2. 2 Whether the proposed development constitutes a reasonable user of the land
  3. 3 Whether the covenants secure practical benefits of substantial value to objectors

Ratio Decidendi

The restrictive covenants in question are obsolete in relation to the proposed development, as the original purposes (frontage, building line, and use as private dwellinghouses) can no longer be fulfilled due to changes in the character of the neighbourhood and the planning context. The restrictions do not secure practical benefits of substantial value to the objectors that would justify refusal of modification/discharge, and any personal disadvantages can be compensated by a monetary payment.

Court Disposition

Application granted in part: restrictive covenants discharged or modified as specified.

Orders

  • Discharge and modification of restrictive covenants in conveyance H to permit the proposed development of flats and houses as per planning permission.
  • Payment of £2,500 to each of the 8 objecting house owners as compensation for modification of the covenants.