In Alexander Devine Children’s Cancer Trust v Housing Solutions and Millgate Developments [2020] UKSC 45, the Court considered the correct approach to the ‘public interest’ requirement on an application for the modification or discharge of restrictive covenants under s 84 of the Law of Property Act 1925.
The case is the first concerning s 84 to reach the highest court.
Alexander Devine, which is based near Maidenhead, provides support to families of children with life-limiting and life-threatening conditions. Housing Solutions’ predecessor in title built 13 houses on land next to the hospice, some overlooking its planned garden and wheelchair walk, and made the s 84 application once the units were completed.
The Court unanimously dismissed Housing Solutions’ appeal.
Lord Burrows, giving the lead judgment, agreed that a narrow interpretation should be given to the meaning of ‘contrary to the public interest’, one of the justifications for modifying a restrictive covenant.
“Once one appreciates that the relevant wording requires a narrow enquiry and does not involve asking the wide question of whether in all the circumstances it is contrary to the public interest to maintain the restrictive covenant, it is clear that the good or bad conduct of the applicant is irrelevant at this jurisdictional stage,” he said.
Nevertheless, the ‘cynical breach’ by the house builder was ‘a highly relevant consideration when it comes to the discretionary stage of the decision’. Therefore, there was no error in law, he concluded.
Paul Greatholder, partner at Russell-Cooke, acting for Alexander Devine, said: ‘This ruling sends out a strong message to developers that even where they have planning permission for a development they must have regard to, and respect for, neighbouring owners’ legal rights.’
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