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Restrictive covenant - hypotheticals |
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To what extent can the LT take into account hypothetical situations when
deciding whether to discharge a restrictive covenant? For instance, if a
covenant prevents the erection of a block of fl ats at the rear of a property, and
it is argued that that restriction protects a view of trees, can the LT then take
into account the hypothetical suggestion that the block of fl ats could be built
at the side of the building (and thus obscure the view of the trees) without there being a breach of covenant.
In other words, can a developer argue that
he could hypothetically do a different course of action, which will have the
same effect – and then use that in support of the contention that a covenant
does not secure ‘any practical benefits’?
The rule on ‘hypothetical situations’ was laid down in Re Fairclough [2001] :
‘if ‘other development’ having adverse effects could be carried out without
breaching the covenant, these ‘practical benefits’ may not be of any ‘substantial
value or advantage’. Whether they are of substantial value or advantage is likely
to depend on the degree of probability of such other development being carried
out and how bad, in comparison to the applicant’s scheme, the effect of the
development would be.’
In other words, the LT can consider hypothetical alternatives and the ‘degree
of probability’ of those alternative schemes being carried out. Thus, in
the present case, the LT could consider the possibility of a block of
fl ats being built at the side (and not in breach of the restrictive covenant).
On the facts the tribunal decided that there was no evidence to suggest
that such a development was intended or that it would indeed be feasible.
Thus, the hypothetical alternative was taken into account, but then
dismissed. Re Hopkins Application [2008] EWLands LP/89/2006 . Source:
www.practicallaw.com (subscription service).© Practical Lawyer
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September 2008 |
