Mill Strand Developments Ltd v James Ernest Tapp & Ors

Mill Strand Developments Ltd v James Ernest Tapp & Ors

The restriction impedes a reasonable use of the land and does not secure practical benefits of substantial value or advantage to the objectors. Adequate compensation for the loss of practical benefits to the owners of No.4 is £25,000. The restriction should be modified to permit the approved development, subject to payment of compensation.

Parties
Applicant: Mill Strand Developments Ltd; Objectors: James Ernest Tapp and Susan Tapp; Objectors: Keith William Henry Jones and Jennifer Mary Jones; Objectors: Hillyard Colin Mitchell and Muriel Mitchell; Objectors: Gareth Robert Oakes and Dr Emma Jane Woodward; Objectors: James R Crossingham and Gemma M Crossingham; Objectors: Peter Causer and Jennifer Causer
Jurisdiction
England and Wales
Judgment Date
05 July 2022
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Final Decision
Outcome
Application granted with modification of the restrictive covenant and compensation to the owners of No.4
Legal Topics
Restrictive Covenants, Discharge or Modification of Covenants, Compensation for Loss of Amenity
Land Law Property Law Restrictive Covenants Discharge or Modification of Covenants Compensation for Loss of Amenity

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Parties

Mill Strand Developments Ltd

Applicant

James Ernest Tapp and Susan Tapp

Objectors

Keith William Henry Jones and Jennifer Mary Jones

Objectors

Hillyard Colin Mitchell and Muriel Mitchell

Objectors

Gareth Robert Oakes and Dr Emma Jane Woodward

Objectors

James R Crossingham and Gemma M Crossingham

Objectors

Peter Causer and Jennifer Causer

Objectors

Procedural Posture

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

Legal Issues

  1. 1 Whether the restrictive covenant should be modified to permit residential development
  2. 2 Whether the covenant secures practical benefits of substantial value or advantage to the objectors
  3. 3 Whether compensation is adequate for any loss or disadvantage

Ratio Decidendi

The restriction impedes a reasonable use of the land and does not secure practical benefits of substantial value or advantage to the objectors. Adequate compensation for the loss of practical benefits to the owners of No.4 is £25,000. The restriction should be modified to permit the approved development, subject to payment of compensation.

Court Disposition

Application granted with modification of the restrictive covenant and compensation to the owners of No.4

Orders

  • The restriction in the Charges Register for Land at Lower Moor, Pershore (Title HW152974) is modified under section 84(1)(aa) of the Law of Property Act 1925 to permit the approved development, subject to the specified planning permissions and conditions.
  • Within three months, the applicant must signify acceptance of the modification and provide evidence of payment of £25,000 to Mr Hillyard Colin Mitchell and Mrs Muriel Mitchell, owners of No.4 Old Manor Close.