Davies & Ors, Re [2000] EWLands LP_32_1999 (05 October 2000)

Davies & Ors, Re [2000] EWLands LP_32_1999 (05 October 2000)

The covenant is not obsolete as its object—to control development near the forest edge—remains capable of fulfilment and provides real protection to the objector. Discharge of the covenant would injure the objector by removing this control. However, modification to permit the approved conversion of The Stables to a dwelling will not injure the objector, provided compensation is paid for the reduction in consideration at the time of sale.

Citation
[2000] EWLands LP_32_1999
Parties
Applicant: Melvyn Henry Davies; Applicant: Jacqueline Davies; Applicant: Dennis Murphy; Objector: Forest Enterprise (Forestry Commission)
Jurisdiction
England and Wales
Judgment Date
05 October 2000
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Decision After Hearing
Outcome
Application for discharge dismissed; application for modification to permit approved conversion granted with compensation.
Legal Topics
Restrictive Covenants, Modification or Discharge of Covenants, Compensation for Modification, Planning Permission
Property Law Land Law Restrictive Covenants Modification or Discharge of Covenants Compensation for Modification Planning Permission

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Parties

Melvyn Henry Davies

Applicant

Jacqueline Davies

Applicant

Dennis Murphy

Applicant

Forest Enterprise (Forestry Commission)

Objector

Procedural Posture

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

Legal Issues

  1. 1 Whether the restrictive covenant is obsolete under s.84(1)(a) of the Law of Property Act 1925
  2. 2 Whether discharge or modification of the covenant would injure the objector under s.84(1)(c)
  3. 3 Whether compensation is payable for modification of the covenant

Ratio Decidendi

The covenant is not obsolete as its object—to control development near the forest edge—remains capable of fulfilment and provides real protection to the objector. Discharge of the covenant would injure the objector by removing this control. However, modification to permit the approved conversion of The Stables to a dwelling will not injure the objector, provided compensation is paid for the reduction in consideration at the time of sale.

Court Disposition

Application for discharge dismissed; application for modification to permit approved conversion granted with compensation.

Orders

  • The restrictive covenant is modified to permit conversion of The Stables to a dwelling in accordance with planning permission dated 12 October 1994.
  • Applicants to pay compensation of £2,450 to the objector.