Development — Owners wishing to develop land — Restriction on use of land for road or way without consent — Application to discharge restriction as obsolete — Lands Tribunal dismissing application — Restriction had practical benefits for those entitled — Money not adequate compensation for loss of benefit — Court of Appeal upholding that decision
The applicants owned the freehold of Wick House, 50 Marshal’s Drive, St Albans, and adjoining land (“the application land”). The applicants wished to develop the application land. The land had been substantially developed with houses in the 1930s and was subject to restrictive covenants imposed by conveyances made in 1934 and 1935. Restriction 9 placed an absolute prohibition without consent on any part of a lot being used as a road or way. The 1935 conveyance had included permission for a proposed road to be known as Woodside Way, which was never in fact constructed, the land reserved for that purpose having been incorporated into the various plots adjoining it. The applicants’ proposed scheme involved the construction of a road. The applicants applied under section 84(1) of the Law of Property Act 1925 for an order that restriction 9 might be discharged on the ground that it ought to be deemed obsolete.
The Lands Tribunal dismissed the application but the applicants appealed to the Court of Appeal. They argued that the elimination of the possibility of the construction of Woodside Way constituted material circumstances from which it was to be inferred that the restriction in the 1935 conveyance ought to be deemed obsolete. Enforceability of the restriction was dependent on the plots to the south of the area getting access from the south.
Having regard to the express rights of way granted by the 1935 conveyance the original covenantees could not have prevented building at any time before Woodside Way was built because to do so would derogate from the grant. The applicants claimed to be entitled to rely upon that principle notwithstanding the lapse of time.
Held The appeal was dismissed.
1. The tribunal was correct to conclude that it was too late to rely on the principle of non-derogation from grant. Moreover, that principle could not be relied upon to over-turn the express prohibition contained in restriction 9: see Birmingham Dudley & District Banking Company v Ross (1888) 38 ChD 295.
2. The tribunal was entitled to find the facts it did on the evidence before it. The purpose of restriction 9 was to prevent backland or cul-de-sac development. It would be incongruous if that restriction were converted by non-derogation from grant into the opposite of what was intended. If the proposed scheme was implemented it would cause injury to the objectors in that it would establish a backland or cul-de-sac development. Accordingly, the restriction ought not to be deemed obsolete.
3. The tribunal had not erred in law in deciding that the restrictions in impeding what would otherwise be reasonable user of the application land gave benefits of substantial advantage to those who were entitled to them.
4. The court was not satisfied that money would be an adequate compensation for loss or disadvantage which persons would suffer from the proposed discharge or modification if permitted.
Martin Mann QC and Christopher Young (instructed by Pictons, of St Albans) appeared for the appellants; John Cherryman QC and Robert Bailey-King (instructed by Machins, of Luton) appeared for the objectors.
