Variation

Lawntown Ltd v Camenzuli and another CA TLR 14 November

The claimant applied under s610(2) of the Housing Act 1985 to vary restrictive covenants to allow the conversion into flats of a property adjoining the defendant’s property. There is no guidance on the exercise of the court’s discretion under s610, which is a broad one that has to be exercised judicially with due regard to the purpose for which the power was conferred, namely, to enable restrictive covenants to be varied, so as to permit the conversion of single dwelling houses into flats where planning consent for such use has been given. Although planning permission had been given in the present case, the statute does not create any presumption in favour of the variation of restrictive covenants where planning permission has been granted, let alone any duty to vary the covenant. It was left to the court 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 the present case, the judge had been wrong to confine his attention to those matters that the planning authority had not taken into account in reaching its decision. He failed to have proper regard to many of the objections to variation of the covenants. Accordingly, the court exercised a fresh discretion of its own and taking all relevant factors into account, the balance came down decisively in favour of granting the variation sought and upholding the decision of the judge.