| Topic: | Re:Re:Re:Restrictive Covenant Breach - Compensation of £224,000 awarded to Ealing neighbours | |
| Posted by: | Victor Mishiku | |
| Date/Time: | 01/10/21 15:16:00 |
| The Restrictive Covenant is quite separate to planning considerations. Planning decisions even when there have been thousands of objections to a planning application are taken by a Local Authority or may be finally granted by The Planning Inspectorate (PINS) in Bristol. The following example may be a useful summary of the processes. This was the case at 8 Longfield Road Ealing W5 where Ealing Council at first granted Outline Planning Permission in 1986/1987. Days after Outline Planning Permission was given following the signing of a Section 52 Agreement to protect certain Rights of Way, a High Court Writ was issued by neighbours in the three surrounding roads. Not long after, the developers applied to transfer the case to The Lands Tribunal - now called the Upper Tribunal (Lands Chamber) for a possible modification of the 1928 restrictive covenant imposed by the Prudential Assurance Co. Ltd, who had acquired about 600 plots on the Victorian "Hanger Hill Estate, Ealing" from Major Charles Peevor Boileau Wood, the only surviving son of Edward Wood Esq, benefactor to the Ealing Board, on 4th May 1906. In the meantime, the developers proceeded with their ongoing planning efforts and applied to Ealing Council for Detailed Planning Permission. However, this time, Ealing Council refused their application for full planning permission at their Planning Committee meeting in May 1989. It is the only case I know of where an Outline Planning Permission has been refused at the Details stage! The developers next went to Appeal at PINS and in 1990 were finally granted planning permission. In the same year 1990, a 5-day Hearing took place at The Lands Tribunal in Chancery Lane. The late Cllr. Donald Gordon attended every day so did Mr Colin Bibra, Estate Agent, who also gave evidence to the court. The writer was allowed to represent all of the Objectors for the Hearing as a layperson. The President of The Lands Tribunal, Victor Wellings QC, carried out a site visit of the neighbourhood. In March 1991, the Tribunal announced its Decision to dismiss the application by the developers, Hassall Homes Ltd, who had wanted to demolish 8 Longfield Road (a handsome two-storey red-bricked detached dwellinghouse built by James Wills in 1883) in order to construct a block of flats with a Tunnel Access Road to develop the backland former horticultural land known as "Hawkins Nurseries" dating back to 1893. As part of the proceedings, Objectors are required in the event the Tribunal grants the Application, to state if they wish to claim Compensation for the loss of their legal rights and any detriment caused during and after the development. In our first case, the question of Compensation was thus not ruled on as the benefit of the covenant was considered to be substantial and therefore Compensation was not an appropriate remedy. The Objectors in these cases were not saying that covenants can simply be overturned for cash payment - they did not want the development at all. It is the law that if legal covenantees have their rights taken away, then they may be entitled to Compensation in certain instances where the detriment is not so substantial as to preclude it outright. In our first case, the Tribunal considered the threatened breach of covenant was a serious detriment of substantial value (this need not be financial value only - a loss of a view has been said to be priceless). In the Eaton Rise case, the Tribunal allowed the application on terms. If the Compensation of £224,000 is not paid, then the covenant is not modified so as to allow the development. I expect that the developer will likely have legal and surveyors' bills to additionally pay probably over £100,000 and the planning agents and architect's costs must have been about £20,000 since before 2018 and onwards. In a recent case in Stanmore, there was only one Objector with the benefit of a covenant designed to protect his property. The Objector spent £99,000 in legal fees to resist a change in the status quo but the Tribunal did allow a modification but on terms that the developer compensate the Objector in the sum of £75,000 and pay £60,000 towards his legal costs. This case was for only a small change - a replacement cottage would be 2m closer to the Objectors large Living-Room windows. The developer had to spend some 6 years making planning applications plus the Tribunal proceedings (which can take a long time - our first case took nearly 4 years) so the importance of a restrictive covenant can be seen. You may often hear people say that "covenants are not worth the paper they're written on" - but this is not usually the case. Residents who had lost their planning fights have later been awarded Compensation or Damages for breach of covenant in the amounts of £350,000, £230,000, £224,000, £175,000, £100,000, £80,000 in cases in Middlesex and elsewhere also some smaller awards of £20,000 and £10,000 but in other cases like 8 Longfield Road, the covenants have been fully upheld therefore Compensation was not activated. Victor Mishiku 1/10/2021 "The Covenant Movement" |