Paul Howard & Ors v Sunita Surana

Paul Howard & Ors v Sunita Surana

The Tribunal found that the new accesses and the houses under construction represent a reasonable user of the land, and that the covenants no longer secure practical benefits of substantial value or advantage to the objector. There is no greater impact on amenity or the building scheme than from the previously permitted development. The Tribunal exercised its discretion to modify the covenants to regularise the applicants' position, noting that the objector retains the right to seek damages for past breaches.

Parties
Applicant: Paul and Debby Howard; Applicant: John and Elizabeth Baines; Objector: Sunita Surana
Jurisdiction
England and Wales
Judgment Date
23 October 2023
Procedural Posture
Application for Modification of Restrictive Covenants / Final Decision
Outcome
applications granted
Legal Topics
Restrictive Covenants, Modification of Covenants, Building Schemes, Discretionary Powers, Planning Permission
Property Law Land Law Restrictive Covenants Modification of Covenants Building Schemes Discretionary Powers Planning Permission

Case Brief

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Parties

Paul and Debby Howard

Applicant

John and Elizabeth Baines

Applicant

Sunita Surana

Objector

Procedural Posture

Application for Modification of Restrictive Covenants / Final Decision

Legal Issues

  1. 1 Whether the restrictive covenants should be modified to permit the constructed houses and new access through the hedge on the application land
  2. 2 Whether the covenants secure practical benefits of substantial value or advantage to the objector
  3. 3 Whether the Tribunal should exercise its discretion to modify the covenants despite the breach

Ratio Decidendi

The Tribunal found that the new accesses and the houses under construction represent a reasonable user of the land, and that the covenants no longer secure practical benefits of substantial value or advantage to the objector. There is no greater impact on amenity or the building scheme than from the previously permitted development. The Tribunal exercised its discretion to modify the covenants to regularise the applicants' position, noting that the objector retains the right to seek damages for past breaches.

Court Disposition

applications granted

Orders

  • The restrictive covenants are modified to permit the development for which detailed planning permission was granted by Elmbridge Borough Council under the constructed permission and the access permission, subject to the hedge being maintained and/or renewed except for the driveways.
  • The parties are directed to submit a draft order to put the modification into effect.