The defendants owned a semi-detached house originally designed for occupation as a single family dwelling house and located in an estate where most of the properties were of a similar character. The claimant, a property development company, purchased the adjoining semi-detached house which was subject to restrictive covenants preventing the construction of, or conversion into, maisonettes or flats. The benefit of the restrictive covenants extended to all properties in the estate. The claimant began work on the property with a view to converting it into flats, without having obtained planning permission. The defendants and other neighbours objected. In due course the local planning authority granted permission for change of use from a single dwelling house to two self-contained flats. The claimant then made an application under s 610a of the Housing Act 1985.
The county court judge considered that the court should normally proceed on the assumption that planning permission had been properly granted; that the court should look to see what matters were put forward by the objectors to the application which would make it unfair to modify or vary the covenants; and that, save in exceptional circumstances, the court should not have regard to planning matters which had already been considered and decided by the planning authority, but should have regard to considerations which had not been before the planning authority or had not been relevant to its decision. He allowed the application for relaxing the covenants to allow conversion into two flats and the defendants appealed, submitting that the judge had been wrong to disregard factors just because they had been taken into account by the planning authority in reaching the planning decision.
Although the underlying policy of s 610 of the 1985 Act appeared to be to facilitate the more intensive use of large dwelling houses the Act did not create any presumption in favour of the variation of a restrictive covenant where planning permission had been granted. The court was to take account of all relevant factors and to carry out a balancing exercise, giving such weight as it judged appropriate to the various factors in the exercise of its discretion. In order to carry out that task properly the court had to have regard to the interests sought to be protected by the restrictive covenant and the extent to which those interests would be harmed by the proposed variation as well as to the interests of the person seeking to vary the covenant and the advantages that would accrue from the variation. That latter factor could engage matters of public as well as private interest. It was for the court to make its own assessment of the relevant factors and the weight to be accorded to them. It should not leave matters out of account, or give them no weight in the overall balancing exercise, merely because they had already been considered by the local planning authority in granting planning permission.
Nevertheless the appeal would be dismissed as the decision was the right one.