Dobbin v Redpath and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lawrence Collins,Lord Justice Carnwath,Lady Justice Hallett |
| Judgment Date | 01 May 2007 |
| Neutral Citation | [2007] EWCA Civ 570 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2006/2088 |
| Date | 01 May 2007 |
[2007] EWCA Civ 570
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lady Justice Hallett and
Lord Justice Lawrence Collins
Case No: C3/2006/2088
MR P COPPELL (instructed by Messrs Darling & Stephenson) appeared on behalf of the Appellant.
MR C ZWART (instructed by Messrs Ward Hadaway) appeared on behalf of the Respondent.
This is an appeal from a decision dated 30 August 2006 of the Lands Tribunal, Mr A J Trott, FRICS member, in which the member refused an application by the appellant, Mr Dobbin, seeking the nullification of a restricting covenant, pursuant to section 84 of the Law and Property Act 1995. The appeal is under section 3, subsection 4, of the Lands Tribunal Act 1949, which permits an appeal by any person grievant on the basis the decision is erroneous on a point of law.
Mr Dobbin has freehold land comprising an undeveloped plot adjoining and formerly part of 1 Briar Close, Darlington, County Durham. The land is subject to a restrictive covenant imposed by a conveyance dated 12 September 1960 made between John Joseph Calder and Frederick and Lucy Winter in the following terms:
“No other building or erection other than the said dwellinghouse and outoffices shall be erected on the said land without the consent in writing of the Vendor.”
It is accepted that the land, together with numbers 1–5 Briar Close, forms part of the building scheme. Mr Dobbin sought modification of the restrictive covenant, so as to permit on the land the erection of a detached bungalow and private garage in accordance with the planning permission granted by Darlington Borough Council, as the local planning authority, on 26 August 1987. There were two objections to that application by Mr John Lawson and Mrs Lilian Redpath as trustees of a certain comprising 3 Briar Close, and by Mrs Redpath as owner of 4 Briar Close. Numbers 3 and 4 are effectively one property consisting of a house and garden. Another objector, Blackwell Grange Golf Club, withdrew its objection and there was no objection to the application from any other member.
Section 84 of the Law and Property Act provides, so far as material:
“(1) The Lands Tribunal shall… have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the use thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied –
[And then a number of matters are set out, the relative ones for this purpose being …]
(aa) that (in a case falling within subsection 1(A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or
…
(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.
…
1(A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either –
(a) does not secure the person's entitlement to the vendor for the benefit of any practical benefits or substantial value or advantage to them; or
(b) is contrary to the public interest;
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from discharge or modification.
(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.”
In coming to his decision, the member accepted that the existence of planning permission was very persuasive in determining the reasonableness of the user. For the purposes of section 84(1)(aa), and he concluded first that the existence of valid planning permission, compliance with the development plan and the location of land within an established residential area, meant that the proposed user of the land was reasonable for purposes of section 81(1)(aa). But, secondly, the mere fact that Mr Dobbin had planning permission and accorded with a development plan was not of sufficient public interest to override the objections.
He turned to the practical benefits conferred on the objections by the covenant and found the following:
“(2) That the continued existence of the Restriction, unless modified, would impede that reasonable user [J45].
(3) That it was not possible to see the… Land from either inside or the garden of 4 Briar Close [J46].
(4) That it was not possible to see the… Land (other than a birch tree that was to be retained) from 3 Briar Close [J46].
(5) That neither 3 nor 4 Briar Close would be overlooked by the proposed development [.
That impeding the proposed development did not secure any practical benefits to the objectors in terms of protecting an existing view or preventing overlooking.
That the restriction did not secure any practical benefits to the objectors in terms of preventing an increase in traffic generation or disruptive on street parking.
That the proposed development would not interfere with any noteworthy view enjoyed by the objectors, whether within or outside their properties.
That the effect of the proposed development upon the value of 3 and 4 Briar Close would be nominal.”
He concluded that a low density of development and a pleasant, peaceful ambience in Briar Close were practical benefits secured by the restriction in favour of the objectors. But if the proposed development were built, the density and development of the building scheme would rise by 20 per cent from approximately 11.5 dwellings per hectare to 14 dwellings per hectare. But the residential density of the wide area, if it becomes 50 dwellings, was 14.48 dwellings ahead. But the average plot size of the building scheme was approximately 769 square metres and it was probable that the land, and the land to the north of the application line, would be occupied together; giving a resultant plot size of 745.7 square metres, which was above the average for the existing dwellings.
His overall conclusion was that this was a small building scheme extended to only five plots. It had come into effect in the early 1960s and had retained its integrity ever since. Its original purpose could still be fulfilled. Despite its small size, the building scheme had achieved the creation of a pleasant, quite cul de sac with low density residential development and the location of the proposed bungalow on that land would give that land a cramped, over-developed appearance. This would be especially noticeable given the narrowness of the road. It would occupy a site that was two-thirds of the average area of the other plots within the building scheme. The density of the development of the scheme would increase by 20 per cent, although it would remain low and in harmony with that of the surrounding area. But the building scheme creates a local environment which is steeped in character from that of neighbouring homes such as Briar Walk. The density and character of the building scheme would be adversely affected were the proposal to be allowed and their maintenance was of practical benefit, a substantial advantage to the objectors.
Accordingly, Mr Dobbin had failed to satisfy ground (aa) and having found that the restrictions secured practical benefit, a substantial advantage to the objectors, it followed that those objectors would be injured by the proposal of an application and the application was therefore refused.
The only ground of appeal by Mr Dobbin is that the tribunal was wrong to refuse his application on the basis that a building scheme results in an increased resumption, in words of the member, that a restrictive covenant will be maintained. There is nothing, it is said on his behalf, in the Law and Property Act 1925 or in any other statutory provision which expressly modifies the operation of section 84.1 where there is a building scheme.
The particular passages in the...
To continue reading
Request your trial
-
Decision Nº LP 24 2011. Upper Tribunal (Lands Chamber), 06-08-2013
...AC 773,775] The following further cases were referred to in argument: Crest Nicholson v McAllister [2004] 1 WLR 2409 Dobbin v Redpath [2007] 4 All ER 465 Re Stanborough’s Application [2012] UKUT 21 (LC) Gilbert v Spoor [1983] 1 Ch 27 DECISION Introduction The Trustees of the Green Masjid an......
-
Decision Nº LP 57 2007. Upper Tribunal (Lands Chamber), 26-07-2010
...1 QB 330 Re Ghey and Galton [1957] 2 QB 560 Shephard v Turner [2006] 2 EGLR 73 Gilbert v Spoor [1982] 3 WLR 183 Dobbin v Redpath [2007] 4 All ER 465 Re Snaith and Dolding (1995) 71 P & CR 104 McMorris v Brown [1999] 1 AC 142 Meridian Global Funds Management Asia Ltd v Securities Commission ......
-
Decision Nº LP 4 2007. Upper Tribunal (Lands Chamber), 01-03-2010
...[1999] 1 AC 142 Estates Governors of Alleyn’s College of God’s Gift at Dulwich v Williams [1994] 1 EGLR 112 Dobbin v Redpath and anor [2007] EWCA Civ 570 Re Calthorpe Estate (1973) 26 P&CR 120 DECISION INTRODUCTION This is an application to modify restrictions on the Property under section ......
-
Decision Nº LP 2 2010. Upper Tribunal (Lands Chamber), 29-02-2012
...LLP, for the objectors The following cases are referred to in this decision: Gilbert v Spoor [1983] 1 Ch 27 Dobbin v Redpath [2007] 4 All ER 465 Re Fairclough Homes Limited’s Application [2004] LP/30/2001 (unreported) Shephard v Turner [2006] 2 P&CR 28 Winter v Traditional & Contemporary Co......
-
Table of Cases
...Civ 1250, [2016] 1 WLR 1839, [2016] 1 P & CR 16 529 Dixon v Hodgson, 26 May 2006, unreported, Carlisle Cty Ct 46 Dobbin v Redpath [2007] EWCA Civ 570, [2007] 4 All ER 465, (2007) 104(20) LSG 29 327 Dobbs v Linford [1953] 1 QB 48, [1952] 2 TLR 727, [1952] 2 All ER 827, CA 281 Doe d Bish ......
-
Release, Discharge or Modification of Restrictive Covenants
...(1996) 73 P & CR 126; Re Cordwell’s Application [2008] 2 P & CR 26; Re Lee’s Application (1996) 72 P & CR 439; Dobbin v Redpath [2007] EWCA Civ 570; Re Vertical Properties Ltd’s Application [2010] UKUT 51 (LC)); (e) preventing an increase in traffic movements and associated traffic problems......