You Don’t Know what You’ve Got Till It’s Gone.
Here is a recent decision of the Courts which gives a clear reminder that not everything has a price.
It is a decision on appeal from a Tribunal decision which was in my view plainly wrong although understandable.
A builder, Millgate Developments Limited, has obtained planning permission to develop land which it owns by building thirteen brand new “affordable homes”.
This kind of building is apparently something that the country is “crying out for” in the language of politicians. Many readers might well also agree that social housing of this kind is in short supply and is indeed, broadly speaking, to be encouraged.
After it was finished, ownership of the development was transferred to a Social Housing charity and tenants have moved in to live there.
It might seem a little surprising therefore that the Court has ordered that all of the tenants must leave so that the entire development can be demolished and the land returned to its previous state as open land.
The Builders will lose all of their work and money spent in building the estate, all of the court fees, and will either have to build a replacement estate somewhere else or else pay an additional approximately £1.6 million pounds to the council for failing to do so.
What? Why? Eh?
It goes back to an agreement made in 1972, before Millgate were the owners of the land.
The history is that in 1972 the land was part of a farm and had been sold by the farmer who retained most of the rest of his farm. The terms of that sale were that the land sold should stay open and not have any building upon it and not used for anything except the parking of vehicles. No doubt the price paid for the land was less than it would have been if there had been no such restriction.
The purpose of the restriction was to enforce the farmer’s preference that the rural beauty of the area should not be spoilt by buildings, so that the farmer would have a lovely view to contemplate whilst doing his farming. He could have got more money if he had not insisted on this, but money was not his top priority.
It seems that when Millgate Developments Limited got its hand upon the title to the land, it knew jolly well that the land they wanted to build upon, was “encumbered” by this restriction, called by lawyers a “restrictive covenant”.
Whilst the rules regarding the passing of the benefit and burden of these restrictive covenants are complicated, all we need to know is that the existence of this restriction was well known to Millgate Developments Limited, who clearly decided to take a gamble.
They decided to build anyway and face the music, if there would be any music, later on. No doubt thinking – we are in business to make money. We won’t make money unless we build, building is what we do.
By the time that this decision was taken, the farmer had also transferred nearby land (in lawyer-speak, the “dominant land”) by a gift to a neighbour.
So Millgate Developments Limited seem to have taken the view that everything can be solved by money, let’s crack on lads, build our development and get it full of tenants, then offer the neighbour some brass to go away and stop complaining.
And let’s really crack on and get the building finished and everything done and dusted and loads of new tenant making homes in it, before the Courts can interfere.
After all they probably thought, is a Court really going to throw out a load of tenants from their desperately needed new homes and make us knock it all down, just so that the neighbour can continue to enjoy the view?
More likely, they will slap our wrists, make us chuck a few grand at the neighbour and everyone is happy.
How do you feel about this?
On the one hand, it is an awful waste of money and a terrible disappointment to people living in their newly built affordable home, to pull it all down.
On a different one hand, it’s just bullying isn’t it? The Builder probably thinks, if we make it really expensive for the neighbour to complain to the courts and risk wasting lots of money if he loses, he’ll give up and take some money from us and go and look for a lovely view somewhere else.
And it may be that the Builder, being motivated by money making, assumes that everyone else is too. I don’t know.
There is a type identified by Bob Dylan :-
“Businessmen, they drink my wine
“Ploughmen dig my earth
“None of them along the line know what any of it is worth”
And by Oscar Wilde, who describes a cynic as “a person who knows the price of everything and the value of nothing.”
Happily, I don’t think that the Judges of the Court of Appeal base their decisions upon whether there has been bullying or whether the personalities of the litigants are identifiable in poetry and song. That is for commentators and people who write Blogs.
Nor will the Judges, happily again, be intimidated by the cost of the consequences in waste and expense, of making the correct decision and simply applying the law. The Law that is, being English Land Law and the rules of restrictive covenants.
To my mind, if the law cannot be applied and enforced, the Judges might as well retire and leave the country to the builders.
I think that Millgate Developments Limited should learn a lesson from all of this. Don’t be a bully. So hooray for the Courts and the Law of England – here is the judgment – Link Here-.
It may be there are some readers who think that a private contract of this sort between a Buyer and a seller should not be allowed to live on after both of them have sold their personal interests and that “of course” a rich land owner should not get his view back when an expensive development benefiting poorer members of society has made things less rural and private.
Land Owner –so = “Rich” = “Bad” yes?
Boo Hoo, they might be thinking.
I hope not though, can’t be doing with either sentiment or kneejerk reactions, the law’s the law, eh?
In this particular case then, perhaps a bit of a quandary for that kind of thinking, when it turns out that the owner of the dominant land is a Hospice for terminally ill children, which is providing a secluded home, with outside areas of woodland and rural views in which those children could spend their last days on Earth in a place of peace and quiet and beauty.
Or they could have done, until Millgate Developments Limited started building.
Here’s a song – link here if you’ve got ten minutes
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