Boroughof Poole
THE UPPER TRIBUNAL (LANDS CHAMBER) LP/5 / 20A
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 I month of the date of this notice.
The application relates to land at Beach Road Car Park (south) between Beach Road, Pinecliff Road and Western Road, Poole, Dorset
The applicant is The Council of the Borough and County of the Town of Poole Of the Civic Centre, Poole, Dorset BHI5 2RU

The covenant contained in a conveyance dated 30th April 1926 made between(l) Henry Bury and (2) Edward William Fisher in respect of which the application is made contains the following restrictions:

1. Not to erect or permit to be erected on the said parcel of the land and premises any buildings whatsoever except for the purpose of not more than six dwelling houses with or without stables or garages and the usual or necessary outbuildings and that each such dwelling house shall be of the value of not less than £1,000.00 and shall have at least one statute acre of land attached thereto and shall not be erected until the site and elevation thereof and the site of the necessary offices stables and garage shall have been approved by the Vendors or their successors in title to The Branksome Park Estate or their surveyor and shall nor will alter any such buildings or offices shall have been erected alter or permit to be altered the site or elevation thereof without such approval as aforesaid.

2. Not at any time thereafter to carry on or permit to be carried on upon the said parcel of land and premises any trade or business not to do or suffer anything to be done which may be a nuisance annoyance or disturbance to the Vendors their heirs or assigns as aforesaid or the neighbourhood and shall not nor will use or permit to be used any such building or buildings except for the purpose of a private dwelling house or private dwelling houses only and will keep the said parcel of land and the premises as ornamental or kitchen garden or pleasure ground." (This has been transcribed as accurately as possible since the copy in the applicant's possession is difficult to read)

3. A Deed of Release and Covenant dated 19th June 1931 between (I) The Branksome Park Association Ltd and (2) The Mayor Aldermen and Burgesses of the Borough and County of the Town of Poole permitted part of the subject land to be constructed and used as a car park. This deed represents a partial release of the covenants.

4. A Licence and Deed of Covenant dated 12th March 1958 between (I) The Branksome Park Association Ltd and (2) The Mayor Aldermen and Burgesses of the Borough of Poole modified the covenants to permit the use of the entire site as a car park subject to certain covenants, the most notable of which being: -"Not to erect or permit to be erected any buildings on the said land coloured green or brown on the plan annexed hereto without first submitting plans and elevations thereof for approval to the Grantor and obtaining its consent thereto in writing". A. The application seeks the discharge of the restriction on the following grounds:

(a) that the restriction ought to be deemed obsolete;
(aa) that unless discharged the covenant would impede the use of the land as the planned use is that the land is to be used for the erection of Flats/Apartments; that such use is a reasonable use; that in impeding that use the restriction does not secure to the persons entitled to the benefit of it 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;
(b) 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 Civic Centre Poole BH15 2RU 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, 5th Floor, Rolls Building, 7 Rolls Building, Fetter Lane, London EC4A INL (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 applicant(s) or, if they are represented, their solicitors within I 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.
Signed: Tanya Coulter Date: 10 October 2017 Head of Legal and Democratic Services