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Housing Shortages – Public Policy Demands Derelict Land Be Put to Use

Amidst acute housing shortages, public policy demands that use be made of derelict land. In one case that illustrated the point, a tribunal modified a restrictive covenant to enable residential development of a former sports club.

The club had been closed for almost 20 years. Its pavilion had been demolished and its grounds were overgrown and empty. A developer had purchased the site with a view to construction of 130 dwellings, including two blocks of flats. Given the scarcity of new homes in the area, it had every prospect of obtaining planning permission for the scheme.

Standing in the way, however, was a restrictive covenant dating back to 1956 which required that the land only be used as a sports ground or for construction of detached private residences. The developer applied to discharge or modify the covenant but faced resistance from local residents who feared that the project would lead to loss of privacy and harm the ambience of spaciousness in the surrounding housing estate, which dated back more than 200 years and was substantially comprised of detached homes worth seven-figure sums.

Ruling on the dispute, the Upper Tribunal (UT) found that it was very unlikely that planning permission would be granted for a development solely comprised of detached homes. There was also no prospect of the land being returned to use as a sports ground. If the covenant remained in place in its original form, the likelihood was that the land would remain derelict and incapable of use.

In refusing to discharge the covenant, the UT found that the requirement that only detached homes be built on the land was not anachronistic or obsolete and brought real benefits to the objectors. However, it ruled that the covenant should be modified to enable the proposed development to proceed, subject to planning permission. The detailed amendments were designed to meet the objectors’ concerns as far as possible, but also to afford the developer reasonable flexibility in carrying out its proposals.