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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> Birdlip Ltd v Hunter & Anor [2015] UKUT 115 (LC) (24 March 2015) URL: http://www.bailii.org/uk/cases/UKUT/LC/2015/115.html Cite as: [2015] UKUT 115 (LC) |
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Neutral Citation Number: [2015] UKUT 115 (LC)
Case No: LP/13/2014
IN THE UPPER TRIBUNAL
(LANDS CHAMBER)
Royal Courts of Justice
Strand
London WC2A 2LL
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANTS – Entitlement to benefit - Enforceability – right to object
IN THE MATTER OF AN APPLICATION TO VARY RESTRICTIVE COVENANTS AT LITTLE ORCHARDS, LAYTERS WAY, GERRARDS CROSS SL9
AND IN THE MATTER OF SECTION 84(3A) OF THE LAW OF PROPERTY ACT 1925
BETWEEN :
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BIRDLIP LIMITED |
Applicant |
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(1) GRAHAM AND CHARLOTTE LISTER (2) CHRISTOPHER VEYS AND DEBORAH VEYS (3) JOHN PURSSELL AND ANN PURSELL (4) DUNCAN HOWE AND CAROLINE HOWE (5) ROBIN PARKER AND KIRSTY PARKER (6) RICHARD FODEN AND RACHEL WALTON (7) ANDREW HUNTER (8) NEIL MATHERS
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Objectors |
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Martin Hutchings QC and Jonathan Chew (instructed by IBB solicitors) for the Applicant
Wayne Beglan (instructed by SJS Law) for the Seventh Defendant
Hearing dates: 2nd and 3rd March 2015
Before :
His Honour Judge Behrens sitting as a Judge of the Upper Tribunal
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DECISION
No cases are referred to in this decision:
Judge Behrens :
1. This was a preliminary hearing to determine whether the 8 objectors had the right to oppose the application of modification of the restrictive covenants affecting Little Orchards. It raised the same issues and was therefore combined with a High Court action in the Chancery Division in which Birdlip sought declarations against Mr and Mrs Hunter that the covenants were unenforceable.
2. Following the submissions in the Chancery action I heard brief submissions from Mr Howe, Mr Veys and Mr Purssell. Mr Howe was content to rely on his written submission in his Notice of Objection.
3. Mr Veys was critical of the conduct of Birdlip’s solicitor who had written to him drawing his attention to the possibility of a liability for substantial costs. In his view there would have been more objectors if this had not occurred.
4. Mr Purssell produced a helpful skeleton argument which raised a number of points that had been canvassed in the Chancery action. He did however draw to my attention the finality of an order under section 84(3A) and was concerned as to the possibility of an appeal in the Chancery action. Fortunately s 84(3A) contains an express power to suspend the order so as to avoid the difficulties that Mr Purssell helpfully drew to my attention.
5. For the reasons given in my judgment which is annexed to this ruling I have concluded that there is a valid scheme of development and that the covenants are enforceable.
6. It follows that I will make a
direction permitting each of the 8 objectors to oppose the application. However
for the reasons so eloquently expressed by Mr Purssell the order will be
suspended pending any possible appeal in the Chancery action.
H H Judge Behrens
24th March 2015