Marcello Developments Ltd, Re [2001] EWLands LP_31_2000 (30 March 2001)

Marcello Developments Ltd, Re [2001] EWLands LP_31_2000 (30 March 2001)

The restrictive covenants are obsolete in relation to the proposed development, do not secure practical benefits of substantial value or advantage to objectors, and modification/discharge will not injure those entitled to enforce them. Compensation of £2,500 per objecting house is adequate for personal disadvantages. The use restriction is also modified based on implied agreement from longstanding use as flats.

Citation
[2001] EWLands LP_31_2000
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
Outcome
Application granted in part; restrictive covenants discharged or modified as specified.
Legal Topics
Restrictive Covenants, Modification and Discharge of Covenants, Planning Permission, Obsolescence of Covenants, Compensation for Discharge
Property Law Land Use Planning Restrictive Covenants Modification and Discharge of Covenants Planning Permission Obsolescence of Covenants Compensation for Discharge

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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

Legal Issues

  1. 1 Whether restrictive covenants on the application land should be discharged or modified to permit redevelopment with flats and houses
  2. 2 Whether the covenants are obsolete, prevent reasonable use, or cause injury to objectors
  3. 3 Effect of High Court declaration on enforceability of use restriction

Ratio Decidendi

The restrictive covenants are obsolete in relation to the proposed development, do not secure practical benefits of substantial value or advantage to objectors, and modification/discharge will not injure those entitled to enforce them. Compensation of £2,500 per objecting house is adequate for personal disadvantages. The use restriction is also modified based on implied agreement from longstanding use as flats.

Court Disposition

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

Orders

  • Discharge and modification of specified restrictive covenants to permit redevelopment with flats and houses as per planning permission.
  • Payment of £2,500 to owners of each of 8 houses who maintained objections as compensation.