O'Brien & Anor v [2008] EWLands LP_8_2005 (22 February 2008)

O'Brien & Anor v [2008] EWLands LP_8_2005 (22 February 2008)

The covenant is not obsolete as its original purpose of controlling development and protecting visual amenity remains, but preventing the proposed conservatory and wall removal impedes reasonable use of the applicants’ land and does not secure practical benefits of substantial value or advantage to the objectors. The visual impact is minimal, and modification rather than discharge is appropriate.

Citation
[2008] EWLands LP_8_2005
Parties
Applicant: Richard O'Brien; Applicant: Ruth O'Brien; Objector: Oxton Farms; Objector: Samuel Smiths Old Brewery (Tadcaster)
Jurisdiction
England and Wales
Judgment Date
22 February 2008
Procedural Posture
Application Under Section 84 of the Law of Property Act 1925 / Decision on Application for Discharge or Modification of Restrictive Covenant
Outcome
Application granted in part; covenant modified as sought by the applicants.
Legal Topics
Restrictive Covenants, Modification or Discharge of Covenants, Section 84 Law of Property Act 1925, Planning Permission, Visual Amenity
Property Law Land Law Restrictive Covenants Modification or Discharge of Covenants Section 84 Law of Property Act 1925 Planning Permission Visual Amenity

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Parties

Richard O'Brien

Applicant

Ruth O'Brien

Applicant

Oxton Farms

Objector

Samuel Smiths Old Brewery (Tadcaster)

Objector

Procedural Posture

Application Under Section 84 of the Law of Property Act 1925 / Decision on Application for Discharge or Modification of Restrictive Covenant

Legal Issues

  1. 1 Whether the restrictive covenant is obsolete under section 84(1)(a)
  2. 2 Whether the covenant impedes reasonable user of the land under section 84(1)(aa)
  3. 3 Whether modification or discharge would injure the objectors under section 84(1)(c)

Ratio Decidendi

The covenant is not obsolete as its original purpose of controlling development and protecting visual amenity remains, but preventing the proposed conservatory and wall removal impedes reasonable use of the applicants’ land and does not secure practical benefits of substantial value or advantage to the objectors. The visual impact is minimal, and modification rather than discharge is appropriate.

Court Disposition

Application granted in part; covenant modified as sought by the applicants.

Orders

  • The restrictive covenant is modified to permit the construction of the conservatory and removal of the specified garden wall as per the planning permission dated 2 January 2003.
  • Parties invited to make submissions on costs.