We look at Dean and another v Freeborn and others [2017] UKUT 203 (LC), which considered whether restrictive covenants could be modified

Summary

The Tribunal was satisfied that the restrictions did not provide practical benefits of substantial value and advantage to the objectors and that their modification would therefore cause no injury to those entitled to the benefit of the covenants. The application to modify the covenants therefore succeeded under grounds (aa) and (c). The Tribunal was not persuaded by the argument that permitting the proposed development would be the “thin end of the wedge” and reminded the objectors of the principle that an application which does not cause injury to objectors should not be used in future to support an application that does cause injury.

Facts

The Applicants sought to demolish a large indoor swimming pool building connected to their house and replace it with a detached two-storey dwelling house and had received planning permission for their proposal.

Restrictions on the property were imposed in a conveyance dated 8 March 1963 – as with other conveyances within the housing development. These prohibited “buildings huts sheds garages caravans or erections of any kind” being constructed on the land other than the original house and its garage.

The Applicants sought the modification of the restrictions on grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925, on the basis that the proposed development would have no adverse impact upon the value, enjoyment and amenity of any of the objecting neighbours’ properties. The objectors contended that the covenants were imposed “to benefit and protect” their properties and that any modification would have an adverse impact upon the terms of the covenants and therefore on the value, enjoyment and amenity of their properties.

Issues

Ground (aa): whether the restriction impeded a reasonable user of the land and, if so, whether the Upper Tribunal was satisfied that those entitled to the benefit of the restriction did not secure any practical benefits of substantial value or advantage from it

Ground (c): whether the proposed modification would injure the persons entitled to the benefit of the restriction

Decision

The Upper Tribunal found that the proposed user of the development was reasonable and accorded with the local council’s general policies as to appropriate residential development, noting that careful conditions had been attached to the planning permission

The Tribunal concluded that the proposed development would not detrimentally affect the character or ambience of the housing development or neighbourhood in general and would not affect any of the benefitted land. In particular, it was noted that:

  • the tall screen of conifers separating the properties meant the Applicants’ new building would not even be visible from the only piece of land with the benefit of the restriction;
  • the visibility from the objectors’ properties of the tops of one or two gables of the Applicants’ property was “of no practical consequence whatsoever”; and
  • the land on which the proposed new house was to be situated was not virgin garden land but was already occupied by a not insignificant structure.

The Tribunal considered the objectors’ concern that modifying the covenants would set a precedent and ‘open the floodgates’ for further development in the area. However, it observed that existing nearby developments (to which one of the objectors had previously consented) had already destabilised the integrity of the protection given by the restrictions to the original housing development. It was noted that any new proposed developments would have to be determined on their own merits and the Tribunal reminded the objectors of the principle that an application which does not cause injury to objectors should not be used in future to support an application that does cause injury.

The Tribunal was satisfied that the restrictions did not provide practical benefits of substantial value and advantage to the objectors and that the application should therefore succeed under ground (aa). It also found that the modification would not injure any of the objectors and that the application therefore also succeeded under ground (c). The Tribunal therefore modified the restrictive covenants to allow the house to be built.

This article was written by Emma Humphreys, for more information please contact Emma on +44 (0)20 7203 5326 or emma.humphreys@crsblaw.com