RESTRICTIVE COVENANT APPLICATION: PUBLICITY NOTICE

Lands Chamber
LP/19/2011

Her Majesty’s Courts and Tribunals Service
Upper Tribunal

RESTRICTIVE COVENANT APPLICATION: PUBLICITY NOTICE

TAKE NOTICE that an application under section 84 of the Law of Property Act 1925 to discharge a restrictive covenant affecting the land referred to below has been made to the Tribunal. If you are legally entitled to the benefit of the covenant and you wish to object to the application, you should object within 1 month of the date of this notice. The application relates to land at 45a Christchurch Road, Bournemouth BH1 3PA

The applicant is Andrew Clifford Duits, Suzanne Linda Maitland, Miriam Wherrett and Ann Mitchell as trustees for First Church of Christ, Scientist, Bournemouth care of First Church of Christ, Scientist, 45a Christchurch Road, Bournemouth BH1 3PA

The covenant contained in a conveyance dated 23rd November 1932 made between (1) Sir George Llewellyn Tapps Gervis Meyrick (2) Paul Phipps and Caryl Liddell Hargreaves and (3) Helen Gertrude Holroyd, Sidney George Tite and Archibald Charles Meader (as varied by a deed of variation dated 27th June 2008 and made between (1) Alexander Craig-Mooney, Sir James Chichester Bt and John Richard Westmacott and (2) Joan Lucy Cave, Robert Henry Couling, Valerie Constance Reed, Anne Priscilla Smart and Gerald Douglas Sealy Smart, the then custodian trustees of First Church of Christ, Scientist, Bournemouth) in respect of which the application is made contains the following restrictions:

4(b) No meetings processions or other gatherings shall be held or made outside the said buildings and no bell for the calling of worshippers or meetings shall be put up in or about the said premises and no bell or other means of summoning such meetings or worshippers together involving noise of any kind shall be used on the said premises.

4(c) No notice board hoarding or advertisement of any kind shall be exhibited or affixed on the said premises excepting those referring to the Church activities as specified in clause 4(a) hereof without the approval in writing of the Vendor

4(d) The Purchasers will not exercise or carry on or permit to be exercised or carried on upon the said premises or any part thereof any trade or business whatsoever but this stipulation is not to preclude the use of those portions of the said premises appropriate to such user to the use of the same for a Sunday School Class Rooms and Reading Rooms in connection with Christian Science and the sale of literature relating thereto

A. The application seeks the discharge of the restrictions on the following grounds:

(a) that the restrictions ought to be deemed obsolete;
(aa) that unless discharged the covenant would impede the use of the land for the permitted uses, being those set out in Class D1 of the Town and Country Planning (Use Classes) Order 1987 as amended by the Town and Country .Planning (Use Classes) Order 2005; that such use is a reasonable use; that in impeding that use the restrictions do not secure to the persons entitled to the benefit of them any practical benefits of substantial value or advantage; and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge;
(c) that the proposed discharge will not injure the persons entitled to the benefit of the restriction. You may inspect the application, plan and other documents at the offices of Messrs Goadsy, 99 Holdenhurst Road, Bournemouth BH8 8DY during office working hours. A copying charge may be payable if copies are required.

If you are a person legally entitled to the benefit of the restrictive covenant and you wish to object to the application, you may download a Notice of Objection form from the Lands Chamber website or contact:

The Registrar, Lands Chamber, 45 Bedford Square, London WC1B 3DN

(or telephone 020 7612 9710) and ask for a form of objection (Form LPD). The form should be completed and signed and sent to the Tribunal and to the applicants’ solicitors within 1 month of the date of this notice. You may apply for an extension of this time period.

Persons who file objections become parties to the case, and, provided they are entitled to object, they may appear at the hearing of the application, if there is one. Objecting to an application is the assertion of a property right. The Applicant will be asked whether it accepts that the person giving notice of objection is entitled to the benefit of the restriction of which discharge or modification is sought. If it does not accept this, it will be for the Tribunal to determine whether or not the objector appears to be so entitled and should therefore be admitted to oppose the application. If such a determination has to be made the general rule is that the unsuccessful party will pay the costs of the party in whose favour the determination is made.

Regarding the application to discharge or modify a restrictive covenant, when there is a person or people entitled to its benefit the applicant is seeking to have a property right removed from them. For this reason, successful objectors may normally expect to have their legal costs paid by the unsuccessful applicant. Likewise, although they will usually pay their own costs, unsuccessful objectors will not normally be ordered to pay the costs of successful applicants. Only an objector who acts unreasonably may be required to pay some or all of the applicant’s costs.

The applicant may rely on a lack of objections, or a failure on the part of any particular person to object, in support of the application.

If you are unsure of your position you should seek legal advice,

Coole & Haddock (Reference: JGL/CSBournemouth)
14 Carfax, Horsham, West Sussex RH12 1DZ
Phone no. 01403 210200
Fax no. 01403 241275 2nd December 2011