Russell-Cooke wins in the Supreme Court

Paul Greatholder, Partner in the Russell-Cooke Solicitors, property litigation team.
Paul Greatholder
3 min Read

The Supreme Court today (6 November) ruled in favour of Russell-Cooke's client Alexander Devine in Alexander Devine Children’s Cancer Trust (Respondent) v Housing Solutions and Millgate Developments (Appellant). The Court had been asked to decide the correct approach to the 'public interest' requirement on an application for the modification or discharge of restrictive covenants under section 84 of the Law of Property Act 1925.

Alexander Devine is a children's hospice service providing essential support to families of children with life-limiting and life-threatening conditions across Berkshire and surrounding communities.

The appellant's predecessor in title, Millgate Developments Ltd, built housing units on land near Maidenhead, in breach of restrictive covenants benefitting the adjoining land where a children’s hospice has been constructed. After the housing units were completed, Millgate applied for the modification or discharge of the restrictive covenants pursuant to s 84 Law of Property Act 1925. The Upper Tribunal granted the application, subject to the payment of compensation to the respondent, but the Court of Appeal overturned that decision and refused the s 84 application.

Property litigation partner Paul Greatholder has advised Alexander Devine since 2018.

Partner Paul Greatholder said: “Today’s decision is very much welcomed by The Alexander Devine Children’s Cancer Trust. In 2018 the Court of Appeal decided that the Upper Tribunal was wrong to allow Millgate to remove a restrictive covenant (which protected the charity’s land) preventing development of its land. The Supreme Court has now upheld the Court of Appeal’s decision (albeit for different reasons). The Supreme Court concluded that Millgate had committed a ‘cynical breach’ of the covenant, and in developing its land first without regard to the covenant it was effectively trying to present the Upper Tribunal with a ‘fait accompli’. The Supreme Court confirmed ‘It is not in the public interest that a person who deliberately breaches a restrictive covenant should be able to secure the modification of the covenant in reliance on the state of affairs created by their own deliberate breach.’ This ruling sends out a strong message to developers that even where they have planning permission for a development they must have regard to, and respect for, neighbouring owners’ legal rights.”

The Trustees of Alexander Devine Children's Hospice Service said: “We welcome the decision made by the Supreme Court that Millgate knowingly breached the restrictive covenant by building on land directly adjacent to our hospice.

As a small charity we were forced to defend a legal action brought by Millgate in order to protect the interests of the families that we support now and those who will need our services in the future. We will now continue our work to safeguard the peaceful and private ‘home from home’ environment we set out to create for seriously ill children and their families, many of whom come to us for peace at a time of enormous stress and suffering. We are exceptionally grateful to the Trust’s legal team of Paul Greatholder from Russell-Cooke and Emily Windsor and Stephen Jourdan QC from Falcon Chambers for guiding us through this process and protecting our legal rights. We will now take some time to reflect on the decision before deciding on our next course of action.”

Russell-Cooke last won in the Supreme Court in the case of Darnley v Croydon Health Services NHS Trust in October 2018.

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