Court of Appeal
Published November 14, 2007
Lawntown Ltd v Camenzuli and Another
Before Lord Justice Gage, Lord Justice Richards and Lord Justice Lawrence Collins
Judgment October 10, 2007

When exercising its discretion whether to vary a restrictive covenant to permit conversion of a single dwellinghouse into flats where planning permission had been granted, the court had to carry out its own balancing exercise and not be swayed by the fact that the planning authority had already granted permission.

The Court of Appeal so stated in a reserved judgment when dismissing the appeal of Mr and Mrs Camenzuli against a decision of Judge Marr-Johnson in the City of London County Court on March 3, 2006 to allow an application by Lawntown Ltd, under section 610(2) of the Housing Act 1985, to vary restrictive covenants and allow the conversion into flats of a property adjoining the appellants’ property, Heathdene Road, Streatham Lodhe Estate, for which planning permission had been obtained.

Mr Paul Oakley for the appellants; Mr Philip Coppel for Lawntown.

LORD JUSTICE RICHARDS said that there was no guidance on the exercise of the court’s discretion under section 610 of the 1985 Act. The discretion was a broad one but had to be exercised judicially with due regard to the purpose for which the power was conferred, namely, to enable restrictive covenants to be varied so as to permit the conversion of single dwellinghouses into flats where planning consent for such use had been given.

But the statute did not create any presumption in favour of the variation of restrictive covenants where planning permission had been granted, let alone any duty to vary the covenant. It was left to the court to take account of all relevant factors and to carry out a balancing exercise, giving such weight as it judged appropriate to the various factors in the exercise of its discretion.

In order to carry out that task properly the court had to have regard to the interests sought to be protected by the restrictive covenant and the extent to which those interests would be harmed by the proposed variation, as well as to the interests of the person seeking to vary the covenant and the advantages that would accrue from the variation.

That last factor might engage matters of public as well as private interest, in particular where there were said to be policy considerations in favour of the more intensive use of existing dwellinghouses.

Most importantly, it was for the court to make its own assessment of the relevant factors and the weight to be accorded to them. It could not leave matters out of account, or give them no weight in the overall balancing exercise, merely because they had already been considered by the local planning authority in granting planning permission.

The court’s task under section 610, although triggered by the grant of planning permission, was separate from the planning process and required an independent exercise of judgment.

That did not mean that the court had to second-guess the authority’s planning judgments or to reach a view on the correctness of the grant of planning permission. The authority’s factual assessment was not determinative, and the court had to examine the facts for itself and carry out its own balancing exercise: see Re Martin’s Application ([1989] 1 EGLR 193) and South Bucks District Council v Porter ([2003] AC 558).

In the present case, the judge was wrong to confine his attention to those matters that the planning authority had not taken into account in reaching its decision. He failed to have proper regard to many of the objections to variation of the covenants.

The court would, having seen all the material available to the court below, exercise a fresh discretion of its own in the matter. Taking all relevant factors into account the balance came down decisively in favour of granting the variation sought.

Lord Justice Lawrence Collins and Lord Justice Gage agreed.

Solicitors: Paul Smith & Co, Croydon; Lane & Partners.

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