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Monthly Update

March 2019

The March 2019 update is now available.

Topics this month:
  • Easements: Express and implied easements – Right of Way
  • Long Leases: Collective Enfranchisement – Initial Notices under s13 LRHUDA93
  • Planning: Community Infrastructure Levy – Commencement Notice; Planning Use – Permitted Development Rights
  • Restrictive Covenants: Modification – s84 Law of Property Act 1925
  • Solicitors Practice Points: Law Society Code for Completion; SDLT second home surcharge; Estate Rentcharges

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The next update will be in the middle of April.

Gary Webber
14 March 2019



Right of way – Benefit to other land? - Interpretation – Arnold v Britton – Obligation to contribute to maintenance of road

Parker v Roberts
[2019] EWCA Civ 121

The Court of Appeal determined that the High Court had been wrong to find that a landowner, who wished to build a property on land to the rear of a house he owned, enjoyed a right of way over a private road to access that particular parcel of land. The conveyance expressly stated that the right of way attached to other land, which did not include that plot.

On the proper interpretation of a conveyance the subject land did not benefit from a right of way. An easement could also not be implied either on the basis of “reasonable necessity” or that the activity was one that was “reasonably expected to take place in the future” at the date of the relevant conveyance.

Long leases

Collective enfranchisement - Avoidance scheme

Aldford House Freehold Limited v Grosvenor (Mayfair) Estate
[2018] EWHC 3430 (Ch)

The Claimant failed in its claim for a declaration that it was entitled to acquire the freehold of a building under Chapter 1 of Part 1 of the Leasehold, Reform, Housing and Urban Development Act 1993 (“the Act”). The Second Defendant had taken various steps to prevent the building being collectively enfranchised, including transferring the titles to various underleases of its flats.


There are two cases this month:
  • Whether a technically invalid commencement notice could be rendered valid by substantial compliance with the spirit and purpose of the relevant legislation?
  • Whether for the purposes of the General Permitted Developments Order 2015 (SI 2015/596), the definition of a “school” is sufficiently wide so as to incorporate a “nursery”?

Community Infrastructure Levy - Commencement Notices

Shropshire Council, R (On the Application of) v The Secretary of State for Communities and Local Government
[2019] EWHC 16 (Admin)

The Court was unwilling to allow a technically invalid commencement notice to be deemed valid on account of substantial compliance with the spirit and purpose of the commencement notice within the legislative regime.

Permitted Development - School = nursery?

Bright Horizons Family Solutions Ltd v Secretary of State for Communities and Local Government [2019] EWHC 14 (Admin)

Under the General Permitted Developments Order 2015 (SI 2015/596), the definition of a “school” is not sufficiently wide as to incorporate a “nursery”. Neither the natural meaning of the word, nor provisions in the Order, lend support to any broader definition which would give a “nursery” the same permitted development rights as a “school”.

Restrictive Covenant

There are two cases this month:
  • Whether a restrictive covenant preventing use of land for more than one dwelling could be modified?
  • Discharge or modification?

Restrictive Covenant - Modification

Application by O’Byrne & O'Byrne under section 84 of the LPA 1925
(2018) UKUT 395 (LC)

When a couple made an application under grounds (aa) and (c) of section 84(1) of the Act seeking to modify or discharge a restrictive covenant in relation to their farm, the Upper Tribunal were convinced that the continued existence of a restriction would impede some reasonable user of the land for public or private purposes (under ground (aa)) but did not allow the application under ground (c) (that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction).

Modification - Covenants contrary to the public interest?

Millgate Developments Limited v Bartholomew Smith
[2018] EWCA Civ 2679

The Court of Appeal allowed the appeal against the Tribunal’s decision that modification of the covenants should be permitted under the second limb of ground (aa), i.e. on the basis that the covenants were operating contrary to the public interest. It is generally in the public interest that contracts should be honoured and not breached and that property rights should be upheld and protected. It emphasised that the Tribunal should not usually be inclined to reward parties who deliberately flout their legal obligations.

Solicitors' Practice Points

There are three points this month:
  • Revised Law Society Code for Completion: A revised version of the Law Society Code for Completion by Post has been issued. The new Code will take effect from 1 May 2019.
  • SDLT Second Home Surcharge: The decision in P N Bewley Ltd v HMRC [2019] UKFTT 65 (TC) has confirmed that a residential property which was to be demolished after purchase because it was in such a poor state of repair could not be classed as residential.
  • Estate Rentcharges: On significant numbers of newbuild developments the cost of managing and maintaining the shared parts are imposed on homeowners by means of an Estate Rentcharge. Amongst other issues this has led to concerns about the impact of the Statutory Rights given to Rentcharge owners by s121 of the Law of Property Act 1925.

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