| HOUSING — Restrictive covenants — Variation — Planning permission granted to convert single dwelling house into flats — Application to vary restrictive covenants — Factors to be considered in exercise of court’s discretion — Housing Act 1985, s 610
Lawntown Ltd v Camenzuli and another [2007] EWCA Civ 949
CA: Gage, Richards and Lawrence Collins LJJ : 10 October 2007
Where the court was exercising its discretion under s 610(2) of the Housing Act 1985 to decide whether to vary a restrictive covenant to permit conversion of a single dwelling house into flats where planning permission had been granted there was no presumption, let alone duty, in favour of varying 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.
The Court of Appeal so stated in dismissing the appeal of Mr and Mrs Camenzuli against a decision of Judge Marr-Johnson in the City of London County Court on 3 March 2006 to allow an application by Lawntown Ltd under s 610 of the 1985 Act to vary restrictive covenants and allow the conversion into flats of 7 Heathdene Rd, Streatham Lodge Estate, a property adjoining the appellants’ property at 5 Heathdene Rd, for which planning permission had been obtained.
RICHARDS LJ said that there was no guidance on the exercise of the court’s discretion under s 610 of the 1985 Act. The discretion was a broad one but must 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 permission for such use had been granted. But the statute did not create any presumption in favour of the variation of restrictive covenants where planning permission had 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. The court must have regard to the interests sought to be protected by the restrictive covenant and the extent to which those interests would be harmed by the proposed variation, as well as to the interests of the person seeking to vary the covenant and the advantages that would accrue from the variation. That last factor might engage matters of public as well as private interest, in particular where there were said to be policy considerations in favour of the more intensive use of existing dwelling-houses. Most importantly, it was for the court to make its own assessment of the relevant factors and the weight to be accorded to them. It must not leave matters out of account, or give them no weight in the overall balancing exercise, merely because they have already been considered by the local planning authority in granting planning permission. The court’s task under s 610 , although triggered by the grant of planning permission, was separate from the planning process and required an independent exercise of judgment. That did not mean that the court had to second-guess the authority’s planning judgments or to reach a view on the correctness of the grant of planning permission. It was simply that the authority’s factual assessment was not determinative, however careful it may have been, and the court had to examine the facts for itself and carry out its own balancing exercise. The court would exercise a fresh discretion of its own in the matter and the balance came down decisively in favour of granting the variation sought.
LAWRENCE COLLINS and GAGE LJJ agreed.
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