Ben Maltz has obtained an order from the Upper Tribunal modifying a restrictive covenant in respect of Clarion’s proposed redevelopment of a site at the village of Wrotham in Kent, thereby unlocking the land from restricted use as a retirement housing scheme, which had become increasingly unviable as a result of limited facilities and public transport links in the immediate locality.
This decision of Martin Rodger KC, Deputy Chamber President, was the culmination of extensive consultation and successive planning applications by Clarion since 2014, leading to the application to the Tribunal under section 84(1) of the Law of Property Act 1925. There had been persistent local opposition to the proposed development, which will create 38 new homes on Clarion’s land.
The Tribunal agreed with Ben’s submissions that a covenant not to use the subject land for any purpose other than as an “old persons’ warden scheme” ought to be modified as the covenant was preventing a reasonable use of the land and did not secure any practical benefit of substantial value or advantage to the adjoining land owners with the benefit of the covenant.
Ben’s further argument that the restriction was also contrary to the public interest was noted as likely to give rise to a “compelling case” given the pressing need for additional housing in Kent, but the Tribunal stopped short of reaching a concluded view on that alternative limb under ground (aa) in section 84(1) of the 1925 Act.
Clarion’s further request for discharge of a separate covenant requiring written consent from the original vendors under the 1974 Conveyance, in respect of any alterations or additions, was granted under ground (a) in section 84(1), the vendors having long since died and the covenant therefore being obsolete.
Ben was instructed by Joshua Stolberg at Weightmans LLP.
A link to the Tribunal’s full decision is here.