[2023] UKUT 251 (LC)

In their notice of objection Mrs Cunningham and Mr Nix objected to all of the grounds advanced by the applicants. In relation to ground (a) they stated that there had been no changes to the character of Lea Hurst or of the benefited land in the 18 years since the imposition of the covenant.

As far as ground (aa) is concerned, the objectors accept that the covenant impedes the proposed use but deny that the proposed use is reasonable. They assert that the
covenant secures to them practical benefits of substantial value and advantage in upholding the peace and quiet, amenities and value of the benefited land. They also fear that alteration of the covenant will create an unfavourable precedent for future modifications. Furthermore, they deny that money would be an adequate compensation for the effect of the proposed modification. They regard any reliance on the public interest grounds as set out in s. 84(1A)(b) as fundamentally misconceived and dispute that the application under ground (b) is supported by any factual evidence. Similarly, in their objection to the application ground (c) the objectors dispute the applicant’s characterisation of Lamp Cottage as being not used as a private residence.

Mr Francis submitted that the conduct of Mr Kay amounted to a ‘cynical breach’ of the covenant. The fact that Mrs Cunningham and Mr Nix had to obtain an injunction to restrain breaches of the covenant demonstrated that Mr Kay chose to ignore warnings in full knowledge of his obligations. A further reason for refusal is that the first objector is the original covenantee under the 2005 transfer and is entitled to rely on it.