England and Wales Lands Tribunal

 


Haghighi v No Respondent [2006] EWLands LP_13_2005 (20 October 2006)

LP/13/2005

LANDS TRIBUNAL ACT 1949

COSTS - application for modification of restrictive covenant - application by applicant to dismiss proceedings - application for modification dismissed - applicant to pay objectors' costs on standard basis - Law of Property Act 1925, s84

IN THE MATTER OF AN APPLICATION TO DISMISS AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925

BY

MOHAMED ALI SALKHORDEH HAGHIGHI

Re: 2 Sutherland Drive

Burpham

Guilford

Surrey

GU4 7YJ

Determination on the basis of written submissions

© CROWN COPYRIGHT 2006

DECISION ON COSTS

1. On 13 September 2005 Mr M.A.S. Haghighi ("the applicant") applied to the Lands Tribunal for the modification of a restrictive covenant affecting land in his freehold ownership known as 2 Sutherland Drive, Burpham, Guildford, Surrey, GU4 7YJ. The restriction was imposed under a transfer dated 19 July 1983, made by Focus 21 Properties Ltd to the applicant and Farah Badiel and the proposed modification was intended to allow infill residential development to be carried out in accordance with a planning permission granted by Guildford Borough Council.
2. Objections to the proposed modification were received from the owners of twenty neighbouring properties, who all instructed Messrs Clyde & Co, solicitors, to act on their behalf.
3. On 31 July 2006 the applicant informed the objectors of his intention to withdraw the application and on 25 August 2006 he wrote to advise the Tribunal of the position. The objectors' solicitors made it clear that they would only consent to the proposed withdrawal on the basis that the applicant paid their clients' costs. By a letter dated 31 August 2006 the applicant was informed that his letter to the Tribunal would be treated as an application under rule 45(2) of the Lands Tribunal Rules 1996 to dismiss the proceedings, and that I would dismiss the proceedings after determining whether an order for costs should be made.
4. The objectors have made written submissions in support of their application for costs. The applicant has made no submissions. The objectors say that in August 2003, shortly after they first heard that a planning application had been made to erect a detached dwelling on the application site, four of the current objectors wrote to the applicant advising him that they had the benefit of the restriction and that, should work start on the proposed development, they would take immediate legal steps to prevent it. On 11 December 2005, two of the objectors visited the applicant and attempted to persuade him to withdraw the application to the Tribunal, on the basis that it would not succeed and that costs would become involved. The applicant was provided with title deeds relating to a number of the objectors' properties, showing that they were all subject to and had the benefit of the same covenants. Nevertheless, the applicant insisted on being provided with copies of the title deeds of all the remaining objectors and on 19 May 2006 the objectors were advised that the applicant did not admit any of them. The matter was set down for preliminary hearing on 4 September 2006, but this was cancelled following receipt of the letter from the applicant to the Tribunal dated 25 August 2006.
5. The objectors say that on numerous occasions they advised the applicant as to the costs implications of proceeding with the application. They suggest that, had he taken proper legal advice earlier, many of the objectors' costs could have been avoided. Costs had been saved by the residents instructing one firm of solicitors, but the costs incurred were still significant, particularly in the light of the applicant's conduct.
6. The objectors submit that the application should be regarded as being frivolous and that they are entitled to an order for costs on an indemnity basis. The applicant has not responded to the application for costs, despite being invited to do so.
7. A successful objector to an application to discharge or modify a restrictive covenant will normally receive all his costs unless he has in some respect been unreasonable (Lands Tribunal Practice Directions 11 May 2006, paragraph 22.4). I am aware of nothing to suggest that the objectors' conduct in this case has been unreasonable. I do not consider, however, that the conduct of the applicant is properly to be described as frivolous, and there is not in my view sufficient reason for awarding costs on an indemnity basis.
8. The application for modification of the restriction is dismissed. The applicant must pay the objectors' costs which, in default of agreement, will be assessed by the Registrar on the standard basis.

Dated: 20 October 2006

George Bartlett, QC, President