New case on modification of restrictive covenants under section 84 LPA
In Re Rae's Application [2016] UKUT 0552 (LC), the Upper Tribunal was asked to modify a set of covenants under ground (as) to permit the development of a second house on a development plot at the fringe of a housing estate. The Applicant had obtained planning permission.
The land in question was at the end of a cul-de-sac and was unusually large for the Estate. The original developer company had extracted covenants regarding density, use and appearance, but was long dissolved. The benefit of those covenants had passed to neighbouring owners.
The objecting neighbours opposed the modification because:
1. They asserted the existence of a development scheme which had to be maintained; and
2. They were concerned about a change in view.
The Tribunal held that it was immaterial whether or not a scheme existed. The unique features of the application land meant it would not set a precedent so that the "thin end of the wedge" argument was inapplicable. A variation permitting the planning permission development was made, with compensation payable to the two most proximate objectors.
Judgment is here
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