7 February 2022
I wrote to you a couple of times recently to bring you up to date with regard to the pending case in the Lands Tribunal (LT), brought by the owners of 21 Cadehill Road. In summary, the owners of 21 Cadehill Road have applied to the LT for the restrictive Covenant contained in the Deed of Mutual Covenant (DOMC) to be modified to allow them to proceed with their development plans without Estate Committee (EC) approval.
EC held a meeting with covenantors on 26th January, 2022, in the Stocksfield Community Centre and many more joined the meeting by Zoom. The purpose of the meeting was to give the Applicants an opportunity to set out their application and thereafter to establish whether covenantors value the covenant and wish the EC to oppose the case. The result of the meeting was a clear show of support for the defence of the covenant.
As I mentioned in my letters, and at the meeting on 26th January, all covenantors are entitled to respond to the application. This can be by notifying the Applicants of support to their application or making an objection to the Application. If it is the latter only the official objection form may be used. This form, Notice of Objection to a Restrictive Covenant Application is attached to this letter, and is downloadable from https://www.gov.uk/government/publications/form-t381-notice-of-objection-to-a-restrictive-covenant-application. It is a technical form and therefore the EC has taken advice from an expert on how it should be completed. Whilst it is the intention of the EC to provide to the Applicants and the LT a formal statement of case in response to the application, due to the requests for assistance with completing the form, a document is attached which may provide help to covenantors in approaching the compilation of any notice of objection. As a reminder, individual covenantors are entitled to seek their own legal advice with regard to this issue and the application.
The L T requires that forms must be returned within a period of one month from service of the publicity notice, starting from Thursday, 13 January. Last Friday, 4 February 2022 we agreed an extension of 14 days to this timescale with the owners of 21 Cadehill Road. This means that the deadline for submitting any notices of objection to the LT and Gordons (the Applicants’ solicitors) is Monday 28 February 2022
With about 300 covenantors on the Estate, both the Applicants and the EC are aware that potentially a lot of notices of objection may be submitted. In order to try and make the process more manageable, the EC and the Applicants have agreed that any notices of objection covenantors may wish to submit are to be provided to the EC ahead of the 28 February 2022 deadline. The EC will then provide those to the Applicants and the Tribunal.
The EC will need time to collate any completed forms and forward those to its solicitor, who in turn needs to serve these on Gordons and file them with the LT before 28 February 2022. In order to facilitate that, a committee member will collect the forms from you on 23 February or you can leave them at one of the following addresses: 25 Meadowfield Road, 7 Painshawfield Road and 5 Crabtree Road by 23 February. If you are unsure about completing the form, whilst the EC cannot give you legal advice but one of our members will visit you to help.
If you are intending to complete a notice of objection form, please note the following:
- the LT case number LC/2021/000472. should be inserted in the top right-hand corner of the form
- Your name and full contact details are required
- The form needs to be signed
At the meeting last week, the EC also appealed to covenantors for financial help in its defence of the covenant as it currently stands. EC members are volunteers, our role is to scrutinise applications for developments and decide to accept or reject them on their merits, in accordance with the provisions of the DOMC. We give our time and energy freely, but the EC does not have a designated fund or income from which to fund (in its view) the necessary defence of the covenant for the benefit of the wider covenanting body. We are therefore asking for donations to assist the EC in its endeavour.
Our thanks to everyone who has already contributed to the fund. For those who have not yet made a donation, it is not too late and your help would be appreciated. Payments by cheque can be made to the Treasurer, Andrew Hall, 20 Apperley Road, OR by direct transfer to:
The Painshawfield Estate
SC 20-40-09, AN 20730254
If you wish to contribute but cannot pay £300, please give what you can as all contributions help to build the fund, and each contribution demonstrates support of the covenant.
Some covenantors are concerned about the liability, the addendum to my letter of 3rd February explains the position and is again attached to this letter.
Helen S Rae
In the past the EC obtained specialist advice from a Costs Lawyer on your liability for costs if you contribute to the Litigation Fund. Most of the advice related to the High Court but we were advised that liability was limited to the amount of your contribution, unless we acted unreasonably.
Objecting to the application is not acting unreasonably (see later) and our solicitors will ensure that our conduct in these proceedings is appropriate.
We now have very helpful guidance on costs from the Lands Chamber Practice Directions issued in 2020. The following principles will be applied to the Tribunal exercising the power to award costs (15.7):
Unsuccessful objectors will not normally be ordered to pay any of the applicant’s costs, unless they have acted unreasonably. Because the applicant is seeking to remove or diminish the property rights of the objector the Tribunal will not usually regard making an objection and pursuing it to a hearing as unreasonable. (15.10)
Successful objectors will usually be awarded their costs unless they have acted unreasonably (15.11).
The successful applicant may also have to pay compensation to covenantors whose property values have been reduced as a result of the modification of the covenant.
Please also note: Where there is more than one objector to an application to discharge or modify a restrictive covenant the Tribunal encourages all objectors who wish to be professionally represented to appoint a single representative (15.6).