Colin Bernard Medley v Ross Mackenzie & Ors

Under section 84 of the Law of Property Act 1925, a consent covenant in favour of a company which has been dissolved may be discharged as obsolete. A covenant expressed to protect the remainder of an estate may, however, be annexed to that land and enforceable by its owners.

For ground (aa), the Tribunal applies the Re Bass questions. Planning permission and an asserted title can support the reasonableness of a proposed use, but title uncertainty may affect discretion. Modification is unavailable where the restriction secures practical benefits of substantial advantage. The preservation of an estate’s open, uncluttered character, prevention of over-development, and protection of a listed boundary wall were such benefits here.

Colin Bernard Medley v Ross Mackenzie & Ors was an application under section 84 of the Law of Property Act 1925. The applicant wished to demolish a bungalow at 12 High Elms, Chigwell and construct two houses. Restrictive covenants imposed in 1966 and 1967 required consent for building, limited structures and walls, and restricted the plot to one dwelling.

The owner of Forest House and other owners on the High Elms estate objected. The applicant sought discharge of the company-consent covenant because the company had been dissolved. He sought modification of the remaining covenants under section 84(1)(aa) and (c). The central issue was whether those covenants continued to secure practical benefits of substantial advantage to persons entitled to their benefit.

1. The application was allowed only in respect of covenant 3(c) of the 1967 conveyance. That covenant required the prior written approval of High Elms Properties Ltd for any building or structure. The company had long been dissolved. The Tribunal held that the covenant was discharged when the company was dissolved and, insofar as required, discharged it as obsolete under section 84(1)(a) of the Law of Property Act 1925.
2. The remaining 1967 covenants benefited the Green Land. Their wording protected the remainder of the company’s High Elms estate. They were annexed to that land by section 78, save for the covenant requiring the company’s own consent. The owners of the relevant Green Land properties could therefore object.
3. For section 84(1)(aa), the Tribunal applied the questions identified in Re Bass Ltd’s Application, (1973) 26 P & CR 156. The proposed residential use would be reasonable if the applicant had title to the land required. The title issue went to discretion rather than that threshold question. The restrictions plainly impeded the proposal.
4. The restrictions nevertheless secured practical benefits of substantial advantage. They preserved the open and uncluttered aspect of High Elms, prevented an inappropriate intensification of the site and future comparable development, and protected the listed wall from risks posed by deep excavation. Those benefits were substantial for the owners of numbers 1 to 11 High Elms; protection of the wall was also substantially advantageous to the owner of Forest House. Other alleged benefits, including overlooking, pressure on services, loss of access and loss of distant views, were not substantial.
5. Accordingly, the Tribunal had no jurisdiction to modify the remaining covenants under section 84(1)(aa). The applicant also failed under section 84(1)(c), because the proposed modification would injure persons entitled to the covenants’ benefit. The application was otherwise refused.

not stated in the judgment.