fbpx

Tribunal Paves the Way for Suburban Garden Development

18th March 2019 By Arman Khosravi

Restrictions on land use appear in the title deeds of many properties – but the law permits their deletion or modification if they become obsolete over time or stand in the way of reasonable development. Exactly that happened in one case in which the Upper Tribunal (UT) opened the way for construction of three new homes in a large suburban garden despite neighbours’ objections.

The garden once formed a large field on the outskirts of a major city. Part of it was subject to a restrictive covenant, dated 1928, which forbade construction of more than three detached homes on the field. Those homes had long since been built. A further covenant, dated 1929, affected another part of the garden and required that any house built on that plot must have direct frontage to a public road.

A couple who owned one of the detached houses were granted planning consent to construct three houses on their land. It was accepted that two of the properties would breach the 1928 covenant and that the third was precluded by the 1929 covenant. In those circumstances, the couple applied to the UT to discharge or modify the covenants so as to enable the development.

In ruling that the 1929 covenant was obsolete, the UT noted that it did not amount to an absolute prohibition on house building. Due to the city’s expansion during the 20th century, the area had been absorbed into the urban area. The covenant had already been breached by a previous construction project and the protection it was designed to afford had been significantly eroded. It was therefore discharged, enabling construction of the third house.

Despite neighbours’ concerns that their sunlight and views would be harmed, the UT found that, by impeding development of the other two homes, the 1928 covenant did not secure any practical benefits of substantial advantage to objectors. The covenant was modified to the extent required to permit the development. The modification would take effect on the couple paying a total of £15,000 in compensation to the owners of two properties whose value would be affected by the project.

Source: Concious

Latest News

Court Sanctions Leg Amputation for Man Lacking Mental Capacity

24th April, 2024 By

The courts are often called upon to sanction treatment for patients whose ability to make decisions for themselves is impaired. In a recent case on point, the Court of Protection had to decide whether it was in the best interests of a man with mental health issues to have his right leg amputated above the knee. The man, aged 60, was taken to hospital by his niece. He was found to have an ulcerated leg. He had a history of paranoid schizophrenia, and believed that the sores on his leg...

High Court Grants Parental Order Despite Previous Adoption

18th April, 2024 By

In law, adopted children are regarded as having been born to their adoptive parents. The Family Division of the High Court recently considered whether that fact precluded a parental order being granted under the Human Fertilisation and Embryology Act 2008 (HFEA) in respect of a child born via surrogacy. A couple who lived in the USA had entered into a surrogacy arrangement with another woman. An adoption order naming the couple as the child's parents had been made by a US court and was automatically recognised under UK law. However,...

Flat Owner Not Liable for Pre-existing Structural Issues

16th April, 2024 By

When building owners carry out works on their property, are they liable for damage to adjoining properties that results from pre-existing structural issues? The Court of Appeal recently provided welcome clarification on that question. The owner of a ground-floor flat wished to extend it by building out into his garden. He served notices on owners of adjoining properties, as required by the Party Wall etc. Act 1996. The works caused the rear wall of two adjoining properties to drop by about 2 mm, which led to internal walls and floor...

Challenge to Will's Validity Rejected by High Court

12th April, 2024 By

The best way to ensure your assets will be distributed as you wish is to have your will professionally drafted by a qualified solicitor. In a recent case, a challenge to the validity of an elderly man's will was dismissed by the High Court. The man had previously made a will in 2011, leaving most of his estate equally to his three children. In 2018, by which time one of his sons had predeceased him, he made a further will, leaving the residue of his estate to his other son...