In Re Hopkins, the Lands Tribunal was asked to modify or discharge a restrictive covenant not to build more than one dwelling-house on a plot. The potential grounds for such an application were considered in the April edition of Property Update. In this instance, the ground relied on was that the continued existence of the covenant would impede a reasonable use of the land, money would be adequate compensation to the person entitled to the benefit of the covenant and the covenant secured no practical benefit ("ground (aa)"). As with many cases of this type, the present application turned on the last of these requirements: whether the covenant secured a practical benefit to the beneficiaries.

The applicant had obtained planning permission to build a block of four flats in the garden to the rear of his house. However, the neighbours objected to the application to modify the covenant.

One of the grounds for objection was that there was currently a clear view from the road to some trees beyond the applicant's property. If the proposed flats were built, this view would largely be obscured. The applicant argued that this would equally be the case if he were to build an extension to the side of his property. Such an extension would not be prohibited by the covenant, and had indeed been carried out at another property in the road.

The objectors submitted that the tribunal should not have regard to such a hypothetical situation.

The Lands Tribunal cited with approval the decision in Re Fairclough Homes [2001]. In this case it was held that how the character of the area would be affected by modification of the restriction is not to be judged by envisaging the worst that could be done without breaching the restriction and comparing it to what the proposed modification is intended to permit. The starting position is that, by preventing development, the restriction may be said to secure practical benefits to those entitled to the benefit of it. But if other development having adverse effects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage. Whether they are of substantial value or advantage is likely to depend on the degree of probability of such other development being carried out, and how bad, in comparison to the applicant's scheme, the effect of that development would be.

Applying those principles to the present case, the tribunal found that the potential use which may be made of a property without breaching the restriction is to be taken into account when considering an application to modify on ground (aa). However, there was no evidence to suggest that the applicant had any intention of adding an extension to his house, or that such development would be feasible.

The tribunal declined to modify or discharge the covenant.

Things to consider

In the May edition of Property Update we reported on the case of Duffield v Gandy. This also concerned a covenant not to erect a residence in an area currently used as a garden. An objection was raised on the basis that the objector's privacy would be disturbed by the proximity of the adjacent garden to the proposed dwelling. In this case the applicants again tried to argue that the covenant secured no practical benefit because the applicants could use that particular part of their land as a garden anyway, with the same consequential effect on the objector's privacy. Nonetheless the Court of Appeal held that the covenant secured a practical benefit, and modification was refused.

The objectors in Re Hopkins tried to argue that the Fairclough test had been superseded by Duffield v Gandy. They argued that Duffield v Gandy meant that the tribunal should not take any account of the hypothetical extension. This was rejected by the tribunal. In the event however, the objectors were still successful in preventing modification of the covenant.