Re University of Westminster
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1998 |
| Date | 15 July 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Swinton Thomas, Lord Justice Waller and Lord Justice Chadwick
Restrictive covenants - no objection to application to modify or discharge - no presumption that restriction should be discharged
Where no objection was made to a notice of application to modify or discharge a restrictive covenant, there was no presumption that the restriction should be discharged. The Lands Tribunal was entitled to refuse to discharge the restrictions where it considered the notice of application to be so unclear that potential objectors might have misunderstood it and consequently not raised any objection.
The Court of Appeal so held in a reserved judgment when dismissing an appeal by case stated by the University of Westminster from the refusal by the President of the Lands Tribunal to discharge certain restrictions affecting the land of which the university was freehold owner.
Mr Nicholas Taggart for the university; the Lands Tribunal did not appear and was not represented.
LORD JUSTICE CHADWICK said that the university was the freehold owner of land situated at 35 Marylebone Road, London, and applied under section 84 of the Law of Property Act 1925 to modify or discharge certain restrictions over the land regarding its use.
Notices were served on those who were entitled to the benefit of the restrictions in accordance with directions given by the tribunal. As no objections were lodged, the application was treated as unopposed.
On August 1, 1996 the tribunal informed the university that it would deal with the application without a hearing and ordered that the restrictions could be modified but would not be discharged altogether.
In those circumstances the university applied for a full hearing which took place on November 19, 1996 and was the subject of the appeal.
The tribunal held that it could only exercise its discretion to modify the restrictions on the grounds that:
1 Persons receiving the notice of application might have failed to understand what was being proposed for the land if the restrictions were discharged and had therefore failed to raise an objection on the basis of a misunderstanding and
2 To discharge the restrictions entirely would deprive those who might have been entitled to enforce them of any opportunity to exercise control over the future use of the property.
Mr...
To continue reading
Request your trial
-
Decision Nº LP 25 2011. Upper Tribunal (Lands Chamber), 28-05-2013
...1088 Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P. & C.R. 278 Re University of Westminster’s Application [1998] 3 All E.R. 1014, C.A. Re Child Brothers Ltd’s Application (1959) 10 P. & C.R. 71 Re Robinson’s and O’Connor’s Application (1965) 16 P. & C.R. 106 Re H......
-
Synlait Milk Ltd v New Zealand Industrial Park Ltd
...stage and consider whether the discretion to modify the covenants should be exercised in Synlait's favour. Discretion 168 In Re University of Westminster, the Court of Appeal of England and Wales observed, in relation to the equivalent United Kingdom provision, that “[a] finding of fact tha......
-
Pontifex Ii Ltd v Hayhow
...Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657 (footnotes omitted). At [168], citing to Re University of Westminster [1998] 3 All ER 1014 at 1024 per Chadwick At [168]. (Footnotes omitted). [105] The injury may be of an economic kind (for example, a reduction in the value of......
-
Table of Cases
...of State for Communities and Local Government [2016] EWHC 476 (Admin), [2016] JPL 709 441 University of Westminster’s Application, Re [1998] 3 All ER 1014, [1998] EGCS 118, [1998] NPC 120, CA 322, 329 Urban Housing Co Ltd v Oxford City Council [1940] Ch 70 283 Valentine v Allen [2003] EWCA ......
-
Release, Discharge or Modification of Restrictive Covenants
...discretionary but should normally be exercised where the criteria for discharge or modification are met ( Re University of Westminster [1998] 3 All ER 1014 at 1024 (CA)). Although covenants may be modified against the original covenantor, it seems that the discretion in Law of Property Act ......