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Arrested development?

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27 July 2012 / Dean Bedford
Issue: 7524 / Categories: Features , Environment , Property
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Conserving history or restricting the future? Dean Bedford puts the National Trust under the spotlight

The benefit of a restrictive covenant attaches to land and can be enforced by successive owners of that land provided certain well-rehearsed conditions are met. However, s 8 of the National Trust Act 1937 enables the National Trust to enforce restrictive covenants without needing to satisfy all these criteria.  This can cause headaches for property developers by removing a developer’s ability to take an informed legal view on the risk posed by a covenant before committing to a project or, giving them little opportunity to defend themselves in the usual way. In the event of enforcement by the Trust developers have struggled to obtain modification or release of covenants in the Upper Tribunal because the injury caused to the Trust cannot be quantified in monetary terms. However, Re Thames Valley Holdings Ltd (2011) LTL 30/8/2011, [2011] UKUT 325 (LC) offers a ray of opportunity to developers looking to utilise land burdened by National Trust covenants.

Restrictive convenants

Thames

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