Articles
- September 2017
"Deadlock Holiday" (with apologies to 10cc)A recent Court of Appeal illustrated the difficulties facing the owner of a holiday bungalow on a development estate, seeking to use it for his full-time home.
In the case of Roland Stafford-~Flowers –v- Linstone Chine Management Co. Ltd. the bungalow owner had in fact been living in the holiday bungalow as his home for over 10 years. There was in existence a planning restriction against such occupation imposed by the Local Planning Authority and the owners’ occupation was in breach of planning control. However because the breach had been going on for over 10 years there could not be any enforcement action taken because of a limitation period against such proceedings after 10 years of breach. The owner obtained a Certificate of Existing Lawful Use and no further breach of Planning Control could be enforced.
The other side of the coin was that the ownership documentation to the owner contained a restrictive covenant mirroring the planning condition that the bungalow could only be used for holiday use.
Emboldened by the Certificate of Existing Lawful Use the owner applied to the Upper Tribunal to have the restrictive covenant removed under the provisions of Section 84 of the Law of Property Act 1925. Amongst other grounds for removing a restrictive covenant are that the continued existence of the restriction would impede some reasonable use of the land for public or private purposes or that the proposed discharge of the covenant would not injure the persons entitled to the benefit of the restriction.
The Upper Tribunal considered that the owner of the holiday home had failed to satisfy the requirements of the 1925 Act. The Management Company in charge of the holiday bungalow site raised a number of arguments including that the removal of the covenant would be the “thin end of the wedge” and would lead to the integrity of the original holiday development scheme being threatened. This would be to the detriment of the other bungalow owners who had not breached the covenant, or indeed planning law. There was also evidence that the existing roads on the estate were inadequate for the increased use that would result from the presence of significantly more permanent residents. The Upper Tribunal therefore rejected the owner’s application to remove the restriction and the Court of Appeal agreed with the Upper Tribunal’s decision. The owner may have won the planning argument but lost the restrictive covenant battle and the restriction could still be enforced.
For further details please contact Paul Stevens on 01473 255591 or email paul.stevens@jackamans.co.uk.
This article provides only a general summary and is not intended to be comprehensive. Special legal advice should be taken in any individual situation.
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