A covenant which restricted the use of a property to that of holiday lettings for certain weeks of the year was not to be modified or discharged. The recent Court of Appeal case of Stafford Flowers v Linstone Chine Management Company Ltd [2017] EWCA Civ 202 highlights that applications to the Tribunal to discharge or modify covenants are difficult and uncertain.

The covenant restricted the use of the property to that of a holiday letting for certain weeks of the year. This restriction reflected a condition of the original planning permission. The continuous occupation of the bungalow by the owners was in breach of the covenant albeit they had been in full occupation of the property for so long that they had already obtained a Certificate of Existing Lawful Use under section 191 of the Town and Country Planning Act 1994.

The Upper Tribunal had determined that the discharge of the covenant could result in a change in the character of the development even though there were few other people within the development in the same position as the applicant that occupied the properties to the same extent as the one in question.

The Court considered that both existing owners and future owners of properties on the development and elsewhere could follow suit resulting in an avalanche of applications to discharge thus undermining the protection offered by the covenant. Whilst the applicant had been successful in showing the covenant impeded reasonable user (being one of the grounds that must be made out), he had failed to show that by impeding the user, the covenant did not secure to the beneficiary any practical benefit of substantial value or advantage. There was a benefit to being able to enforce the covenant in order to protect the character of the site and in circumstances where the Planning Authority was unlikely to assist in enforcing the covenant.

The Implications of the Decision

Those subject to restrictive covenants cannot assume they will succeed in an application to modify or discharge a restrictive covenant even if they have not complied with it for a considerable time. The existence of a Certificate of Lawful Use (or indeed a Planning Permission) does not mean the application will automatically succeed.