Land And Conveyancing Law Reform Act 2009

50.

Discharge and modification.

50.— (1) A servient owner may apply to the court for an order discharging in whole or in part or modifying a freehold covenant (whether created before or after the commencement of this Chapter) on the ground that continued compliance with it would constitute an unreasonable interference with the use and enjoyment of the servient land.

(2) In determining whether to make an order under subsection (1) and, if one is to be made, what terms and conditions should be attached to it, the court shall have regard as appropriate to the following matters—

( a) the circumstances in which, and the purposes for which, the covenant was originally entered into and the time which has elapsed since then,

( b) any change in the character of the dominant land and servient land or their neighbourhood,

( c) the development plan for the area under the Act of 2000,

( d) planning permissions granted under that Act in respect of land in the vicinity of the dominant land and servient land or refusals to grant such permissions,

( e) whether the covenant secures any practical benefit to the dominant owner and, if so, the nature and extent of that benefit,

( f) where the covenant creates an obligation on the servient owner to execute any works or to do any thing, or to pay or contribute towards the cost of executing any works or doing any thing, whether compliance with that obligation has become unduly onerous compared with the benefit derived from such compliance,

( g) whether the dominant owner has agreed, expressly or impliedly, to the covenant being discharged or varied,

( h) any representations made by any person interested in the performance of the covenant,

( i) any other matter which the court considers relevant.

(3) Where the court is satisfied that compliance with an order under subsection (1) will result in a quantifiable loss to the dominant owner or other person adversely affected by the order, it may include as a condition in the order a requirement by the servient owner to pay the dominant owner or other person such compensation as the court thinks fit.

(4) An order under subsection (1) shall be registered in the Registry of Deeds or Land Registry, as appropriate.