Regular updates on relevant case law and legislation - October 2008

CHAPTER 14 FREEHOLD COVENANTS

The modification or discharge of a restrictive covenant (page 331)

Developers can also use section 610 of the Housing Act 1985 to apply for variation of a covenant. Where developers propose to convert a single dwelling into two or more separate dwellings, section 610 can be used to apply for variation of a restrictive covenant that would otherwise prevent such construction. The court can vary the covenant as it thinks fit taking into account all relevant considerations. Even so, there is no presumption of variation under this Act and the court’s task is to exercise its own judgement regardless of any planning permission already given as in Lawntown Ltd v Camenzuli [2007] EWCA Civ 949; [2008] 1 All ER 446. In Lawntown it was held that the court had to consider all the factors involved when deciding whether or not to vary a restrictive covenant under section 610. It couldn’t leave out those factors that had already been considered by the Planning Authority when the Planning Authority had granted planning permission because that could infringe rights under the European Convention on Human Rights. Instead, the court had to exercise its own judgment. Variation of the covenant was ordered but compensation was not payable as there was no evidence that neighbouring properties would fall in value if the covenant was varied.

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