- Hideous Developments Limited (“Hideous”) is looking for a major expansion of its residential housebuilding activities.
- Hideous thinks that it has found the perfect site when an agent effects an introduction to Green & Pleasant Land Bank Limited (“GP”). GP owns a large site (“the Site”), comprising picturesque agricultural land on the outskirts of a rural market town. Hideous decides that the Site is ideal for a substantial development of several hundred houses (“the Development”), on which it is confident that it will turn a substantial profit.
- There are two particular snags.
- First, the Site has no planning permission for residential development. Achieving this planning permission is not likely to be easy. Both Hideou s and GP anticipate considerable local objection to the planning application, and considerable political pressure on the local planning authority to refuse the application.
- Second, the Site is subject to a restrictive covenant, dating from the 19th Century, which prevents residential use of the site. This covenant (“the Covenant”) was imposed by the Backward family, when the site was sold out of the Backward Estate in the 19th Century. There are question marks over whether the Covenant is still enforceable. GP has obtained an expensive Opinion from eminent Leading Counsel which, after much learned analysis and verbal teeth sucking, concludes that the better view is that the covenant is not enforceable against the Site. The Opinion acknowledges the possibility that the covenant would be found to be enforceable, if the matter came to be tested in Court. Leading Counsel is clearer in advising that, if the Covenant is enforceable, there is a good case for securing its discharge pursuant to Section 84 of the Law of Property Act 1925. Hideous is shown the Opinion by GP.
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