Home > Cases > Dobbin v Redpath [2007] EWCA Civ 570

The Appellant was the freehold owner of a house in a cul-de-sac of five houses that had been constructed in the 1960s. He also owned an adjoining vacant plot of land. He obtained planning permission from the local authority to construct a detached bungalow and private garage on the adjoining plot of land. The cul-de-sac was, however, part of a building scheme by which each plot was subject to a restrictive covenant, preventing the construction of more buildings without the consent in writing of the ‘vendor’. The applicant applied to the Lands Tribunal for the modification of the covenants under s 84(1)(a) and (c) of the Law of Property Act 1925. The objectors to the application owned two plots in the cul-de-sac. The tribunal dismissed the application, on the ground that the existence of the building scheme created an increased presumption against the modification of the restrictive covenant, pursuant to established authority of the tribunal. It found that the purpose of the building scheme was still being fulfilled: the maintenance of a pleasant, quiet cul-de-sac, with low level residential density. The building scheme had created a local environment distinctive in character from neighbouring roads, which constituted a practical benefit for the objectors of advantage to them. It found that the proposed development would increase the residential density, although it would still be low by local standards, and affect that distinctive local environment.

The Appellant appealed, contending that the tribunal had erred in applying an increased presumption against the modification of a restrictive covenant.

Appeal dismissed. Although the term ‘increased presumption’ was apt to mislead and although was better for the tribunal to consider the matter in terms of weight, in the light of the special interest that residents had because of the building scheme, nevertheless the tribunal had the statutory considerations well in mind. It had found that the purpose of the building scheme was still being fulfilled, creating a local environment distinctive in character from neighbouring roads, which constituted a practical benefit for the objectors of real advantage to them. That was a question of weight for the tribunal, and there was no ground for interfering with the decision.

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