Dobbin v Redpath & Anor

In an application to discharge or modify a restrictive covenant under section 84 of the Law and Property Act 1995, a building scheme does not create a free-standing legal presumption that the covenant must be maintained. It is, however, a highly material circumstance. Beneficiaries have a collective interest in the estate being administered according to its mutual covenants, or “local law”, and their objections may therefore carry greater weight. The Lands Tribunal must evaluate the statutory matters, including planning policy, the purpose and context of the covenant, practical benefits and injury. An appellate court should not convert essentially evaluative planning and amenity judgments into questions of law. The appeal was dismissed because the Tribunal was entitled to treat the scheme’s low-density character and amenity as substantial practical benefits.

Mr Dobbin owned an undeveloped plot formerly forming part of 1 Briar Close. A 1960 conveyance imposed a restrictive covenant preventing further building without the vendor’s written consent. Planning permission had been granted for a detached bungalow and garage, but trustees and an owner of adjoining properties objected.

The Lands Tribunal refused the application under section 84 of the Law and Property Act 1995. It accepted that the proposed residential use was reasonable, but found that the covenant protected the low-density character and pleasant amenity of a five-plot building scheme, constituting substantial practical benefits. The central issue on appeal was whether the Tribunal had erred in law by applying an “increased presumption” that a covenant forming part of a building scheme should be maintained.

1. Appeal dismissed. The Lands Tribunal had not misdirected itself in treating the building scheme as materially strengthening the objectors’ case.
2. A building scheme may create a system of mutually enforceable covenants, described as a form of “local law”, preserving the character and amenity of the estate. Each plot owner within the scheme has an interest in the estate being administered according to that local law, even where the effect of a breach on that owner is indirect or limited.
3. The phrase “increased presumption” may be misleading. The proper approach is to assess the weight to be attached to objections in light of the beneficiaries’ special interest in the building scheme. The scheme does not impose a separate statutory rule or automatically defeat an application.
4. The Tribunal was required to balance the statutory considerations under section 84(1B) of the Law and Property Act 1995, including the development plan, the ascertainable pattern of planning permissions, and the context in which the restriction was created. Planning permission and a development plan favouring higher density did not compel modification. The Court relied on the guidance in Gilbert v Spoor [1983] (Ch) 27.
5. On the facts, the Tribunal was entitled to find that the proposed bungalow would adversely affect the scheme’s low-density residential character and amenity, which constituted a substantial practical benefit to the objectors. The weight of those benefits was a matter for the Tribunal’s professional judgment and disclosed no legal error warranting appellate intervention. Lord Justice Carnwath concurred, stressing that essentially planning judgments on amenity should not be turned into issues of law.

• Court of Appeal (Civil Division): Under section 3, sub section 4 of the Lands Tribunal Act 1949, the Court dismissed the appeal and upheld the Lands Tribunal’s refusal of the application.
• Lands Tribunal: On 30 August 2006, the Tribunal refused the application to discharge or modify the restrictive covenant.