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Hawkins, Re  UKUT 564 (LC)
The Applicants were the freehold owners of a detached bungalow known as Walnut Acre ("the application land"). The application land was subject to restrictive covenants imposed in 1997 for the benefit of a neighbouring property known as Highlands ("the restrictions").
The restrictions prevented the Applicants from erecting anything more than a one storey bungalow on the application land without approval of the transferees (or their successors-in-title), such consent not to be unreasonably withheld.
The Applicants bought the application land in October 2012, with planning permission to demolish the existing bungalow and erect a two-storey dwelling ("the proposed development").
The Applicants sought to discharge or modify the restrictions under grounds (a) and (aa) of section 84 LPA 1925. The owners of Highlands objected to the application.
The Tribunal noted that the planning authority had accepted that the amenity of Highlands would not be adversely affected by the Applicant's proposed development. However, it pointed out that this was not decisive in this context:
"...this is not a planning application but an application to discharge or modify restrictions which afford proprietary protection to the objectors' amenity and that of their successors. What matters is the effect of the persons with the benefit of the restrictions and a test of amenity is not one determined by planning policy."
The Tribunal rejected the Applicants' contention that the restrictions were contrary to the public interest because of the increasing need to maximise the use of available land.
It highlighted that public interest arguments require an interest which "is so important and so immediate as to justify the serious inference with private rights and the sanctity of contract". (Re Collins' Application  30 P&CR 527 applied).
This briefing was written by Emma Humphreys.
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