The Upper Tribunal has recently made a surprising decision finding in favour of developers building in breach of a restrictive covenant with full knowledge, Millgate Developments and another v Smith and another.
The development was on land subject to a restrictive covenant in favour of a neighbouring children’s cancer hospice. The hospice claimed the development infringed upon their patients privacy and seclusion. The development comprised of 23 houses, 13 of which were built on the burdened land.
The developer continued and once the development was completed applied to the Upper Tribunal to have the restrictive covenant modified or discharged under section 84(1) Law Property Act 1925 on the basis that the covenant restricted the reasonable use of the land, was contrary to public interest and did not confer any practical benefit.
The Upper Tribunal accepted that privacy was a substantial benefit to the patients of the hospice, but it was deemed contrary to the public interest for the houses to remain unoccupied, particularly as the Country is undergoing a housing crisis. It decided it would be unconscionable for the properties to remain empty, although awarded £150,000 to the hospice to be put towards planting trees and other methods to afford privacy to the patients.
The Upper Tribunal warned the decision should not be used as a precedent to ‘flout their legal obligations’.
Jacksons Law Firm has a wealth of experience dealing with all forms of dispute resolution, if you require any assistance regarding any commercial litigation matters please contact Inderjit Gill.
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