The Alexander Devine Children's Cancer Trust v Millgate Developments Ltd & Anor

The Alexander Devine Children's Cancer Trust v Millgate Developments Ltd & Anor

The Court of Appeal held that the Upper Tribunal erred in law by giving improper weight to the existence of planning permission and the fact that the development had already been built in breach of covenant. The public interest did not justify overriding the restrictive covenants, especially given Millgate's deliberate and opportunistic breach and the availability of alternative affordable housing provision. The proper approach under section 84 required greater respect for private property rights and procedural fairness. The appeal was allowed and the application to modify the covenants was refused.

Parties
Appellant: The Alexander Devine Children's Cancer Trust; Respondent: Millgate Developments Limited; Respondent: Housing Solutions Limited
Jurisdiction
England and Wales
Judgment Date
28 November 2018
Procedural Posture
Civil Appeal / Appeal From Upper Tribunal (lands Chamber) to Court of Appeal
Outcome
Appeal allowed; application to modify restrictive covenants refused.
Legal Topics
Restrictive Covenants, Modification of Covenants, Section 84 Law of Property Act 1925, Public Interest, Planning Permission, Affordable Housing
Property Law Land Law Restrictive Covenants Modification of Covenants Section 84 Law of Property Act 1925 Public Interest Planning Permission Affordable Housing

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Parties

The Alexander Devine Children's Cancer Trust

Appellant

Millgate Developments Limited

Respondent

Housing Solutions Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Upper Tribunal (lands Chamber) to Court of Appeal

Legal Issues

  1. 1 Whether the Upper Tribunal erred in modifying restrictive covenants under section 84 of the Law of Property Act 1925 to permit residential development in breach of covenant.
  2. 2 Whether the public interest justified overriding private property rights in the circumstances.
  3. 3 Whether the conduct of the developer in building in breach of covenant before seeking modification should affect the outcome.

Ratio Decidendi

The Court of Appeal held that the Upper Tribunal erred in law by giving improper weight to the existence of planning permission and the fact that the development had already been built in breach of covenant. The public interest did not justify overriding the restrictive covenants, especially given Millgate's deliberate and opportunistic breach and the availability of alternative affordable housing provision. The proper approach under section 84 required greater respect for private property rights and procedural fairness. The appeal was allowed and the application to modify the covenants was refused.

Court Disposition

Appeal allowed; application to modify restrictive covenants refused.

Orders

  • The appeal is allowed.
  • The decision of the Upper Tribunal is set aside.