It is not irrational to conclude that there is a real prospect of a restrictive covenant being modified or discharged where there are conflicting opinions as to the prospects of success.
The High Court has considered a challenge of irrationality in House and another v Waverley Borough Council and another [2023] EWCH 3011 (Admin).
The claimants owned a house with land at Godalming with the benefit of a covenant, imposed in 1929, which restricted the development of land to the north of the property, formerly part of Milford Golf Course, to one detached house with ancillary accommodation per acre. The covenant extended to 27 acres of open land proposed by the council for redevelopment for 190 dwellings for which planning permission had been granted.
The claimants challenged by statutory review the council’s decision to adopt the second part of its local plan based on the report of an inspector appointed by the secretary of state. Their challenge failed on the basis that the issues raised were fully aired before the inspector who addressed them.
The claimants also challenged as irrational the inspector’s conclusion that the golf course site was developable within the plan on the basis that there was “at least a reasonable prospect” that an application under section 84 of the Law of Property Act 1925 could be determined in its favour. The inspector had considered the outcome of a section 84 application as “unknowable” but a counsel’s opinion obtained by the claimants put their prospects of success in defeating such an application at “at least 70%”. The claimants argued that since it was extremely unlikely, even in the most compelling of cases, that any counsel’s opinion would ever predict 100% prospect of success or even close to it, it was irrational to equate less than a 30% prospect of success with “a reasonable prospect”.
The judge decided that the claimants’ analysis failed to take into account the entirety of the evidence before the inspector, which included counsel’s advice for both the council and the owners of the golf course concluding that the clear public interest in the development proceeding, which was impeded by strict adherence to the restrictive covenant, meant that it was very likely that it would be released.
It was highly likely that the inspector took into account all the evidence and submissions before him. In concluding that the golf course site was developable, the inspector made an exercise of planning judgment which was open to him on the evidence. The high threshold for an irrational challenge had not been met.
Louise Clark is a property law consultant and mediator
