England and Wales Lands Tribunal

[2000] EWLands LP_27_1999 (21 July 2000)

LP/27/1999

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT - interlocutory application to amend application for discharge or modification under section 84 of Law of Property Act by adding further restriction to be discharged or modified - Lands Tribunal Rules 1996 - held no power in Lands Tribunal to permit amendment

IN THE MATTER of an APPLICATION under

SECTION 84 of the LAW OF PROPERTY ACT 1925

by

R I DIGGENS, M H KING, R H COX and G A COX

Re: Land at 37, 39 and 41 Seymour Road, St Albans, Herts

Before: The President

Sitting at: 48/49 Chancery Lane, London WC2A 1JR

on 21 July 2000

Garry Webber instructed by Taylor Walton for the applicants

Edward Cousins instructed by Dawson & Co for certain objectors


 


REASONS FOR A DECISION ON AN INTERLOCUTORY APPLICATION

1. Among the matters for decision at an interlocutory hearing before me this morning was an application by the applicants to amend their application for the discharge or modification of covenants under section 84 of the Law of Property Act 1925. I refused the application, and, because the point is likely to be of wider interest, it seemed to me appropriate that I should set out in this form my reasons for doing so. Discharge or modification was sought in the original application in order that 5 houses might be built on land comprising parts of the rear gardens of numbers 37, 39 and 41 Seymour Road, St Albans. The restriction is in these terms:

"Not more than one detached or semi-detached house shall be erected on the said land."

2. The application was made on grounds (aa) and (c) of section 84(1). It sought the discharge or alternatively the modification of the restriction in order to enable the development of 5 houses in accordance with a full planning permission that had recently been granted on appeal. The Registrar gave directions under rule 14 of the Lands Tribunal Rules 1996 that the notice of the application should be given by advertisement in a local newspaper, display on site and service on certain named owners of adjoining houses, on the owners and occupiers of 51 to 87 Seymour Road, and on Earl Spencer, the successor of the vendor who sold the application land and other land for building in the 1920s. Notice in these forms was duly given, 59 objections were made, and the objectors were all admitted.
3. Subsequently the applicants focussed on the fact that there was another restriction in the conveyances that appeared to stand in the way of the proposed development. This provided that:

"No house shall be erected on the said land until the plans thereof have been submitted to and approved by the Vendor's Agents and their fee of 10s 6d for such approval paid by the Purchaser."

The applicants therefore submitted a further application to discharge or modify this restriction, identifying as the grounds (a), (aa) & (c). When the application was received, the Tribunal raised with the applicants' solicitors the question whether a fresh application was necessary and suggested that instead the original application might be amended to refer to the second restriction, with notice being given to the objectors. I understand that over the years similar advice has been given to applicants where it appeared that time and expense could be saved by proceeding in this way and that there was no likelihood of prejudice to anyone who might be affected. The staff sought my confirmation that this procedure was appropriate, and this was conveyed to the applicants' solicitors.

4. In the light of this, although the advice of their counsel had been that there was no power to amend the application, the applicants sought a direction that they be permitted to amend the application so as to include the second restriction. They pointed out in their application to amend that in each of their objections the objectors had referred to the second restriction referred to in the amended application and had hinted they might seek to frustrate the development by relying upon that restriction. However, solicitors for certain of the objectors, when they heard of the proposal to amend, immediately contended that the Tribunal had no power under the Lands Tribunal Rules to allow the amendment of an application. Having now heard counsel on both sides on the point I am satisfied that it is indeed correct that the Rules do not contain any provision that would allow the application to be amended so as to include within it the second restriction.
5. The procedure for application under section 84 is contained in Part V of the Rules. Under rule 13(1), a person interested in land affected by a restriction who wishes to make an application under the section must send to the registrar in duplicate an application containing those matters set out in the paragraph. Rule 14(1) then provides:

"Upon receipt of an application, the registrar shall determine what notices are to be given, and whether these should be given by advertisement or otherwise, to persons who appear to be entitled to the benefit of the restriction."

Rule 15 then makes provision for notices of objection to the application. Thus the procedure laid down provides for the making an application relating to a particular restriction, and for the giving of notice of the application to those who may be entitled to the benefit of it.

6. Rule 36 provides:

"(1) On the hearing of an appeal under Part III or of an application under Part V, the appellant or applicant may rely only on the grounds stated in his notice of appeal, statement of case or application unless the Tribunal permits additional grounds to be put forward.

(2) If the Tribunal permits additional grounds to be put forward in accordance with paragraph (1) it may do so on such terms as to costs, adjournment or otherwise as it think fit."

7. In relation to a section 84 application "grounds" can only mean, in my view, one or more of the grounds set out in subsection (1) ((a), (aa), (b) and (c)) and such matters in support of them as are set out in the application. It does not extend to the addition of a further restriction.
8. Where else might be found a power to make an amendment of this sort? The only possible candidate is Rule 38 "Interlocutory applications", paragraph (1) of which provides:

"Except where these Rules make other provision or the President otherwise orders, an application for directions of an interlocutory nature in connection with any proceedings shall be made to the registrar."

Other paragraphs require the application for directions to be in writing, and they provide for service of the application on every other party (unless they have consented to the application), objections, and hearings. Rule 38 is, in my view, to be construed as a procedural provision and not one that itself confers the power to give directions of an interlocutory nature. It is in any event to be read in the light of rule 36. Unless rule 36 is to be treated as relating solely to permission granted at the hearing and not at an interlocutory stage, and I do not think that it is, it makes it unlikely that rule 38 contains within it a general power to permit amendments.

9. There may be cases where an applicant wishes to cut down the scope of his application - as indeed is the situation in the present case, where the applicants now say they seek only modification and not discharge of the first restriction. It does not, however, seem to me necessary in such a case that the application should be amended for this purpose, although it would no doubt be advisable (in view of the costs for which he might otherwise be liable) for the applicant to give notice to objectors of the more restricted relief that he seeks.
10. The conclusion, in my judgment, is that, apart from rule 36, which is confined to the grounds on which an application is made, there is no power to permit the amendment of an application so as to add to it a restriction not previously included. Where an applicant seeks the discharge or modification of a restriction not included within his application, a further application is required.

DATED 21 July 2000

George Bartlett QC, President