In Perkins4 the Lands Tribunal refused to modify a restrictive covenant to allow a developer to build a new house on his land. The refusal was based on the disturbance likely to be caused to the neighbourhood during the construction works. The Court of Appeal had recently brought clarity to the issue of construction disturbance in Shephard v Turner5, and Perkins follows its lead.
Restrictive covenants are burdens on the land of the person giving the covenant (the covenantor), enforceable against subsequent owners by the person receiving the covenant (the covenantee). In Perkins, the restrictive covenant was in the following terms:
“not more than one dwelling house and garage shall be built on the land hereby transferred”.
The applicant, the covenantor, wanted to build a house on part of his land burdened by the restrictive covenant and applied to the Lands Tribunal to modify the covenant accordingly. The Lands Tribunal, now the Upper Tribunal Lands Chamber, is a statutory body with power to modify or discharge covenants under s.84 of the Law of Property Act 1925 (the “Act”).
Section 84 of the Act allows for modification of restrictive covenants if the Lands Tribunal is satisfied certain grounds have been met. In particular, s.84 (aa) of the Act balances the interest of the applicant, whose proposed use of the land is impeded by the restrictive covenant, against the interests of those opposing the modification, the objectors. In Perkins, the objectors were numerous, as were their arguments.
The impact during the construction period was a concern “expressed by the majority of the objectors”6. In Shephard v Turner, the Court of Appeal had held that consideration of an application under s.84 of the Act must take into account the policy underlying the section. Under s.84 (aa) this policy is one of development. The Court of Appeal said:
“the primary consideration is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short term disturbance which is inherent in any ordinary construction project”.7
In Perkins, the ultimate use of the land would be the accommodation of an extra property. The Lands Tribunal in Re Kershaw’s Application8 had applied this policy approach. In that case it was held that a covenant restricting use of an area of land to “open space use only”, could be modified to allow for the construction of two bungalows. In considering the construction works required to complete that project, the Lands Tribunal found that although the work would prove to be a “considerable disadvantage” for “say about a year”, the matter should be examined in a broader context and in that regard the construction works would be a “short term albeit intensive interference…. to the overall enjoyment”9 of the objector’s properties.
Although Re Kershaw and Perkins both consider development, the Lands Tribunal has to view each case on its specific facts. This approach was confirmed by the Court of Appeal in Shephard v Turner where Lord Justice Carnworth identified that there may, “be something in the form of the particular covenant, or in the facts of the particular case, which justified giving special weight”10 to the issue of construction disturbance.
The first consideration, the form of the restrictive covenant, did not help the objectors in Perkins. Lord Justice Carnworth had in mind those restrictive covenants where the wording had been specifically drafted to resist construction works on a piece of land. For example, in the Lands Tribunal decision of Re Tarhale Ltd’s Application11, the covenant was drafted to restrict the movements of construction traffic along a driveway to a development site. When the applicants attempted to modify the restrictive covenant to allow for construction works at the end of the driveway, the Lands Tribunal found that modification would remove the “practical benefit of substantial value” from the objectors, namely their ability to use the driveway to their houses free of construction traffic.
However, the fact specific consideration did assist the objectors in Perkins. It was submitted by the objectors that the roads were narrow and that parking in the immediate area was already a problem. The Lands Tribunal identified that, “the main problem. is just how narrow the road is”12.
The development site was situated around a square, two sides of which delivery lorries would have to negotiate, with “the potential for damage to be occasioned to parked cars, verges and planting on the square”13. Following Shephard v Turner, the Tribunal decided that “the facts of this case are exceptional in terms of potential disturbance, and do justify giving special weight to this factor”14.
This decision further highlights the importance of scrutinising restrictive covenants over development land. In many of the Lands Tribunal’s decisions, including Perkins, the applicants have already gone through the expense of obtaining planning permission only to be defeated by the restrictive covenant. The Lands Tribunal has consistently considered each case on its specific facts and supports the view that “protection from intolerable nuisances during a construction period can be a substantial advantage”15 to the objectors.