The Upper Tribunal has held that an attractive view being obstructed was not an adequate reason to prevent the modification of a restrictive covenant.

In Hennessey v Kent, Mrs Hennessey owned a large plot of land. The house that had stood on that land had been destroyed by fire in 2011 and Mrs Hennessey had secured planning consent for a new house - High View - in its place, together with two further houses in what had previously been the garden.

The land was subject to a restrictive covenant imposed in 1971. This provided that no more than one dwelling house should be erected on the whole plot and any property erected should be in accordance with plans approved by the original sellers or their successors in title.

The land which had the benefit of these covenants lay to the south east of the site and was now owned by two different people.

Modification of restrictive covenants

Under section 84(1) of the Law of Property Act 1925, the Upper Tribunal has the power to modify or discharge restrictive covenants that affect the use of land or any building on it, in certain circumstances.

Mrs Hennessey applied to the tribunal for modification of the restrictive covenants affecting her land so that she could proceed with the development. She did so on the grounds that the continued existence of the covenants would impede her reasonable use of her land and that their modification would not injure the persons entitled to the benefit of the restrictions.

Mr Kent, one of the adjacent owners whose land benefited from the restriction, objected to the modification. His main concern was to protect his property's view over open countryside.

Issues decided by the court

To reach its conclusion he court had to decide a number of questions.

First, was the proposed use of Mrs Hennessey's land reasonable? And did the covenants impede the development of the new properties?

Yes, in each case. The development was reasonable because the site was within the village boundary and surrounded on three sides by residential development. The restriction that limited building to only one house clearly impeded the development of three, as did the requirement to obtain consent to the plans for the new properties.

Then court moved on to consider whether the restrictions secured practical benefits of substantial value or advantage to Mr Kent. It decided that they did not. The density restriction protected a view from Mr Kent's property and allowed him some privacy. The preservation of these would be practical benefits but they were not substantial. Any increase in noise or light pollution as a result of the development would be marginal.

Although the value of the advantages secured by the restrictions were not substantial, they were not negligible either. The presence of the new houses would limit the privacy and seclusion of Mr Kent's property and its view - but this loss could be adequately compensated by money. On the evidence presented, the tribunal decided that the value of Mr Kent's property would be reduced by 5%. Accordingly, it ordered that Mrs Hennessey should pay him that amount, which was quantified as £21,000.

Accordingly, Mrs Hennessey was successful in her argument that the continued existence of the covenants impeded her reasonable use of the land but not that such modification would be without injury to Mr Kent.

Modification of the covenant

Even where a statutory ground for modification of a covenant has been made out, the tribunal has a discretion whether to modify a restriction. In exercising its power to do so, it can impose new provisions if it is reasonable to do so in view of the relaxation of the original covenant.

The tribunal said that Mrs Hennessey had acted in an un-neighbouring manner towards Mr Kent by planting a row of leylandii trees that she knew would obstruct his view of the countryside, concluding that she had done so as a negotiating lever, to persuade him to agree to her plans.

However, she had not flouted any legal obligation in doing so and he had no right to the view. She had also proceeded to build High View without Mr Kent's consent to the plans but the court had found that he could have had no reasonable objection to them in any event. On balance, Mrs Hennessey's actions did not justify refusing to modify the restrictive covenants.

Nonetheless, the tribunal appreciated Mr Kent's concerns that High View might be used as a care home in the future and it was not persuaded by Mrs Hennessey's assurances to the contrary. Use of the property as a care home would have a much greater impact on the amenity of Mr Kent's property than the development currently proposed. Therefore, the tribunal ordered that the covenants should be modified so as to permit the development, but to provide that no dwelling house constructed on the land should be used as a care home or otherwise than as a single private residence in the future.

Conclusion

A property owner whose land has the benefit of a restrictive covenant might take some comfort in that fact and assume that nothing can be done on the burdened land in breach of that restriction. However, the law in practice is not so clear-cut, as this case amply demonstrates. A change in the character of a neighbourhood or the impediment of a reasonable use of the burdened land may both be arguments that will sway a tribunal into discharging or modifying a covenant, notwithstanding objections.

In this case the protection of a view was not a sufficient reason to prevent the modification of a covenant in order to allow development to go ahead. Given that the law does not recognise an easement for a view, it seems that the only certain way that a landowner can protect a view is to own the whole of the relevant land.

Hennessey v Kent [2017] UKUT 243 (LC)