Hotchkin v McDonald and others
Hotchkin v McDonald and others
- 2004
- Estates Gazette [2004] 18 EG 100 CS (1) .
[2004] EWCA Civ 519, 20 April 2004. Appeal against a Lands Tribunal (LT) decision regarding a right of way restricted by a user covenant. The right of way is a driveway across the appellant's (H) land and sole access to the defendant's (M) property. M applied to the Lands Tribunal, under the Law of Property Act 1925 s84(1), for the complete discharge or modification of the user covenant to allow M's property to be used as a holiday letting on a commercial basis and for a health and fitness centre. H claimed that this would mean the driveway could no longer be used for access as such use would be excessive and outside the scope of the original easement. On going to court, it was held that if the LT discharged or modified the relevant clause, the permitted use of the right of way should also be changed to extend to any activity that could be lawfully carried out on M's property. H appealed on the grounds that the judge's decision extended the scope of LT's jurisdiction, restricted by s84(1) of the Act to the modification or discharge of restrictive covenants, to vary the terms of a right of way. "Held:" appeal dismissed. View judgment at www.bailii.org.
HOTCHKIN V MCDONALD AND OTHERS
RIGHTS OF WAY
LAW OF PROPERTY ACT 1925 S84(1)
RESTRICTIVE COVENANTS
LANDS TRIBUNAL DECISIONS
PERMITTED USE RIGHTS
[2004] EWCA Civ 519, 20 April 2004. Appeal against a Lands Tribunal (LT) decision regarding a right of way restricted by a user covenant. The right of way is a driveway across the appellant's (H) land and sole access to the defendant's (M) property. M applied to the Lands Tribunal, under the Law of Property Act 1925 s84(1), for the complete discharge or modification of the user covenant to allow M's property to be used as a holiday letting on a commercial basis and for a health and fitness centre. H claimed that this would mean the driveway could no longer be used for access as such use would be excessive and outside the scope of the original easement. On going to court, it was held that if the LT discharged or modified the relevant clause, the permitted use of the right of way should also be changed to extend to any activity that could be lawfully carried out on M's property. H appealed on the grounds that the judge's decision extended the scope of LT's jurisdiction, restricted by s84(1) of the Act to the modification or discharge of restrictive covenants, to vary the terms of a right of way. "Held:" appeal dismissed. View judgment at www.bailii.org.
HOTCHKIN V MCDONALD AND OTHERS
RIGHTS OF WAY
LAW OF PROPERTY ACT 1925 S84(1)
RESTRICTIVE COVENANTS
LANDS TRIBUNAL DECISIONS
PERMITTED USE RIGHTS