Mill Strand Developments Ltd v James Ernest Tapp & Ors
Decision date: 5 July 2022
Neutral citation: [2022] UKUT 176 (LC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
The Upper Tribunal considered an application under s.84(1) LPA 1925 to modify a 1972 restrictive covenant preventing non‑agricultural buildings on a 1.24 acre site, where outline and reserved‑matters planning permission for five houses had been implemented. It held the covenant impeded a reasonable use of the land and secured a practical benefit to the owner of No.4 but not of substantial value, so the restriction was capable of modification; modification was approved subject to payment of £25,000 compensation to No.4 and conditions for registering and implementing the permissions. Ground (c) (injury to the persons entitled) was not made out on the facts after compensation. There is a limited right of appeal on a point of law as provided in the order.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: medium
The Tribunal applied s.84(1)(aa) to hold that a covenant preventing development can be modified where it impedes a reasonable use of the land and does not secure practical benefits of substantial value to those entitled; in assessing substantial value under s.84(1A)(b) the Tribunal may consider factors including the site's present suitability for the restricted use, surrounding development and planning history, and the likely long‑term (not short‑term) effect on value and amenity.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The Tribunal suggested that short‑term diminution in value caused by uncertainty about proposed development should be disregarded when assessing long‑term diminution under s.84(1A), and observed that new planting and landscaping in approved schemes can mitigate visual impact over time although interim loss of outlook may be a lasting disadvantage.