Restrictions on the use to which land can be put do not always stand the test of time and that is why the law permits their discharge or modification. In a case on point, the Upper Tribunal (UT) opened the way for construction of new homes on a site which had hitherto been protected from development.
The 1.83-hectare site was on the rural edge of a village. It was subject to a planning agreement, dated 1984, whereby the executors of the estate of a previous owner had consented to restrictions on its future development. They had done so as a quid pro quo after consent was granted for a house-building project on other land held by the estate. The agreement with the local authority forbade construction of any permanent non-agricultural buildings on the site.
The current owners of the site had, following an appeal to a planning inspector, been granted outline consent to build 30 new homes on it,12 of them affordable. However, the council – which had opposed the development contrary to the advice of its own planning officers – refused to waive the terms of the agreement, with the result that the development could not proceed. Faced by that impasse, the owners applied to the UT under Section 84(1) of the Law of Property Act 1925 for an order discharging or modifying the agreement.
In ruling on the matter, the UT noted that circumstances on the ground had changed greatly since 1984. The area had a pressing need for more new homes, especially social housing, and the proposed development would be a reasonable use of the site. It would positively benefit the local community and the building restriction was no longer of any substantial value or advantage to the council. The agreement was modified so as to enable the development to be brought to fruition.
