The Supreme Court has recently sent a warning to developers who knowingly breach restrictions on land where there are other options available.
In this case the developer owned a plot of undeveloped land which had a restriction for it only to be used as a car park. The neighbouring property with the benefit of this restriction had planned to create a wheelchair path around the edge of its gardens. The developer built 13 affordable houses on the land in order to comply with a planning condition for a nearby high-end development in breach of the restriction.
After the housing units had been built the developer asked the Tribunal to change the restriction regarding building on the land. The Tribunal found that the restriction could be modified as it was considered in the public interest to make more affordable housing available.
The case was appealed and the Court of Appeal instead found that the restriction could not be modified because the developer had shown a blatant disregard for the restriction and had deliberately not modified the restriction prior to building.
The case eventually ended up in Supreme Court who agreed with the decision of the Court of Appeal. Whilst it would be in the public interest to have more social housing units available, this did not outweigh the public interest in protecting the neighbouring owner’s rights. The Court found that the houses could have been built on a different part of the land without the restrictions and the developer also had the option to pay a contribution to provide the social housing on a different area nearby. These two options would have meant an application to modify the restrictions would not have been necessary and the neighbour’s rights would have still been protected.
The Court made it clear that developers should not be able to rely on the fact they have unlawfully started building works as a reason for restrictions to be modified. If the developer had applied to have the restriction removed before going ahead and building the houses then it would likely have succeeded.
This case highlights how important it is that developers ensure they seek to have any restrictions discharged or modified prior to starting the building works.
If you are a developer looking for a Firm that understands your needs give Nick Attwell a call on 01473 229242.