Gilbert v Spoor

I will ask Lord Justice Eveleigh to deliver the first Judgment.

The Appellant applied to the Lands Tribunal under Section 84(1) of the Law of Property Act 1925 for the discharge in part or modification of restrictive covenants affecting land at Heddon Banks, Heddon on the Wall, Northumberland. There were a number of objectors who like the Applicant derived title under a common vendor in circumstances in which it is agreed the land was subject to a scheme of reciprocal rights and obligations amounting to a local law. We are only concerned with one restriction and the ground for the application based on Section 84(1)(aa) although the original application covered a wider field.

The restriction is contained in the First Schedule of a conveyance dated the 3rd November 1954. So far as is material it reads: "Not to erect on the piece of land hereby conveyed any building whatsoever other than one private dwelling house with proper offices and outbuildings (including at the purchaser's option a private garage)….."

The application was for an order that the restriction be discharged wholly or modified by "Permitting the erection and maintenance on the said land of three dwelling houses with proper offices, outbuildings and garages, of design and specification approved by the Castle Morpeth Borough Council by and or pursuant to the said Council's grant of planning permission to the Applicant dated the 11th day of October one thousand nine hundred and seventy six."

Section 84 of the Law of Property Act 1925 , as amended by the Law of Property Act 1969, reads so far as is material for this case as follows: "Section 84(1) The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time on the application of any person interested in any freehold land and affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied—(aa) that (in a case falling within sub-section (1A) below) the continued existence 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". Sub-section (1A) reads as follows: "Sub section (1)(aa) above authorise 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 to persons entitled to the benefit of it any practical benefit of 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 the discharge or modification".

Sub-section (1B) reads: "In determining whether a case is one falling within sub-section (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 ascertainable pattern for the grant or refusal of planning permission in the relevant areas, as well as the period at which and in the context in which the restriction was created or imposed and any other material circumstances."

Before the Tribunal the argument centred upon the question whether or not the Applicant had brought his case within sub-section (1A). The member of the Tribunal visited the land and came to the conclusion that: "The power which the relevant restrictions gave to the persons entitled to the benefit of them to prevent interference, by the erection of dwelling houses, with the landscape view from a certain part of Centurion Way, Heddon-on-the-Wall, or from the public seats situated thereon or from the mad itself or the vicinity of the said seats was a practical benefit to the persons aforesaid."

The Applicant's land measures approximately 111 yards from west to east and 20 yards from north to south. A road called Centurion Way runs along the northern boundary for two-thirds of the distance from east to west and then turns sharply north for approximately fifty yards when it turns sharply east for another fifty yards to form the stem of a 'T' junction with Heddon Banks.

The objectors are the owners of numbers 18, 19, 21, 23, and 25 Heddon Banks. Number 18 is situated on the east side of the road right opposite its junction with Centurion Way. The remaining properties lie within the area bordered by Centurion Way from where it turns north and then east to the 'T' junction, Heddon Banks running north and south and by approximately fifty yards of the northern boundary of the Applicants land from Heddon Banks to where Centurion Way turns north. Very roughly it forms a quadrilateral with sides approximately fifty yards long.

The land to the south of the Applicant's land is approved Green Beltwhich falls rapidly away and becomes the valley of the River Tyne. In the decision attached to the Stated case it is said to be a resplendent landscape view which is almost entire rural. In Centurion Way about fifty yards from the beginning of the area in which four of the objectors houses are situated two seats commanding the view have been fixed for public use. The Tribunal found that the construction of the two extra houses would obscure that view and interfere with the view at present enjoyed from the road when walking along it.

The decision has been attacked upon the following grounds: 1. That the enjoyment of the landscape view could not in law be a practical benefit to the respondents for the purposes of Section 84 (1A) because it was not a benefit annexed to the land owned by the respondents for the view was not one obtainable from their land. 2. That there was no evidence to support the finding that the enjoyment of the view was in fact a practical benefit to the respondents or alternatively that it was of substantial advantage. 3. That the applicant could not reasonably have been expected to know that he was going to meet a case based on the landscape view and the Tribunal failed to afford justice to the applicant by not giving his Counsel an opportunity to make submissions or call evidence in relation thereto. 4. That since detailed planning permission had been given for a development, the implementation of which depended upon the successful outcome of the applicant's application, the Tribunal should not have taken into account the landscape view in exercising its discretion against the applicant.

While the Tribunal specifically held that the power to preserve the view was a benefit, it is to be inferred that the Tribunal was referring to the power of the objectors to preserve the view for the occupiers of the objectors' land. No distinction was made in argument between the view itself as a benefit and the power to preserve it.

It is submitted that as the view is not enjoyed from the land of the objectors it cannot constitute a practical benefit within the meaning of the sub-section. It was argued that we are concerned with covenants which are said to run with the land. Such covenants must directly affect the land of the covenantor by controlling its user and they must directly benefit the land of the covenantee. From this it is argued that the "practical benefits" referred to in the sub-section are restricted to benefits the observance of which directly benefit the land of the covenantee. The view, it is submitted, does not do this because it is not a view from the covenantee's land.

We are concerned to construe the words of a statute. The limited construction for which the appellant contends might be more firmly based if Section 84 were concerned only with the situation where it is necessary to rely upon the rule of Tolk—v—Moxey (1848) 2Ph. 774 or in Miles—v—Easier 1933 Ch. 611 in other words cases which can only arise when the covenant was in its inception capable of benefiting the land of the covenantee.

It is clear from the introductory sentence of sub-section 1 of Section 84 that its provisions apply as between the original parties and to restrictions of any kind. (See the observations in Ridley—v—Taylor 1965 1 WLR 611). I therefore do not think that it is permissible to construe sub-section (1A) only in the context of restrictive covenants which run with the land. The first task is to construe the section in isolation and then to relate it to the facts of the present case.

The words of the sub-section, in my opinion, are used quite generally. The phrase "Any practical benefits of substantial value or advantage to them" is wide. The sub-section does not speak of a restriction for the...