Re Martin and Another's Application (Application for Judicial Review)

Planning permission does not extinguish or override a restrictive covenant created by a planning agreement. Such an agreement operates as an effective restrictive covenant, and the owner must use the statutory jurisdiction under Law of Property Act 1925, section 84, unless the beneficiary agrees to release it.

Planning permission is a relevant circumstance, but it does not require discharge or modification. The Lands Tribunal must independently decide whether a section 84 ground is established. A restriction is obsolete only if its original object can no longer be achieved. Protection of visual amenity may constitute a practical benefit of substantial value for which money is inadequate compensation.

The applicants owned a house and garden subject to an agreement made under section 37 of the Town and Country Planning Act 1962. The agreement restricted part of the garden to private open space and prohibited building. After the Secretary of State granted outline planning permission for a house on that land, the local authority declined to release the restriction.

The Lands Tribunal dismissed the applicants’ application under section 84 of the Law of Property Act 1925, relying on the continuing planning and amenity purpose of the restriction. The applicants appealed, arguing that the planning permission had removed that purpose and required discharge or modification.

1. Appeal dismissed. The section 37 agreement created a fully effective restrictive covenant. It operated as if the local authority owned adjacent land for whose benefit the covenant had been taken. The applicants could escape its effect only by agreement or through the section 84 jurisdiction.
2. The planning-permission regime and the restrictive-covenant regime are distinct, although they may overlap. A grant of planning permission under the Town and Country Planning Act 1971 did not determine the section 84 application. It was a circumstance which the Lands Tribunal could and should consider, while retaining responsibility to decide whether the statutory requirements were met.
3. Under section 84(1)(a), the relevant question was whether the original object of the restriction could still be achieved. Applying Re Truman, Hanbury, Buxton & Co Ltd’s Application [1956] 1 QB 261 and Driscoll v Church Commissioners for England [1957] 1 QB 330, the Tribunal was entitled to find that preventing excessive density and protecting visual amenity remained achievable. The outline planning permission did not displace that conclusion.
4. Section 84(1)(aa) was available only where the case fell within section 84(1A), including absence of a practical benefit of substantial value or inconsistency with the public interest, together with adequacy of monetary compensation. The Tribunal was entitled to find a substantial practical benefit in protecting the area’s visual amenity and that money would not adequately compensate the corporation.
5. Under section 84(1)(c), interference with visual amenity could amount to injury to the corporation in its capacity as custodian of the public interest. The Tribunal’s conclusions were open to it on the evidence. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal from the Lands Tribunal with costs and refused leave to appeal to the House of Lords.
• Lands Tribunal: dismissed the application to discharge or modify the restrictive covenant under section 84 of the Law of Property Act 1925.