Restrictive covenant – Modification – Estate – Covenant containing restriction to one dwellinghouse per plot on small estate – Claimant proprietor seeking modification to permit one additional house on largest plot – Whether restriction secured practical benefit of substantial value or advantage – Whether modification setting damaging precedent – Whether compensation payable for short term disruption caused by building works – Application granted
The Oakfield estate at Weybridge in Surrey was a residential estate of 44 properties laid out in 1928 and developed in the following years, whose original form had largely been preserved by covenants requiring that not more than one dwellinghouse be erected on each plot.
The claimant, as registered proprietor of 11, Oakfield Glade, a large detached house on a prominent plot in the centre of the estate, applied under grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925 seeking the modification of the restriction in relation to his property to enable him to build a detached two-storey house in its garden, while retaining the existing dwelling. The claimant wished to divide his plot into two equal parts and build a new house on the space currently used as lawn.
Planning permission for the new house was originally granted on 13 December 2017. A second planning permission was granted on 18 July 2018 for a house of the same size and layout but with a modified façade.
The objectors were all owners of other houses on the estate, each of whom was entitled to the benefit of the restriction imposed on the first sale of each property prohibiting the building of more than one house on any plot.
Held: The application was granted.
(1) The main issue on ground (aa) was whether, by impeding the reasonable use of the garden, the restriction secured for the objectors a practical benefit of substantial value or advantage. On the evidence, the proposed development would not have the serious adverse consequences feared by the objectors. To the extent that preventing the construction of the new house secured practical benefits for the other residents of the estate, they were not benefits of substantial value or advantage whether individually or cumulatively. As regards the longer-term changes which would be brought about if the new house was built, there was no meaningful evidence which could be used as a base line for an assessment of any diminution in value of any of the neighbouring properties.
(2) There was no dispute that during the construction of the new house the immediate neighbours, and others on the small estate, would experience short term disturbance due to the construction works. The question was whether protection from such disturbance was capable of being a practical benefit of substantial value or advantage such as to justify a refusal of an application for the release or modification of a restriction which impeded the development.
The general purpose behind ground (aa) was to facilitate the development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the area. Section 84(1)(aa) sought to provide a fair balance between the needs of development in the area, public and private, and the protection of private contractual rights. “Reasonable user” in that context referred naturally to a long-term use of land, rather than the process of transition to such a use. The primary consideration was the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance inherent in any ordinary construction project. There might, however, be something in the form of the particular covenant, or the facts of the particular case, which justified giving special weight to that factor: Shephard v Turner [2006] 2 EGLR 73 followed.
(3) The particular restriction in the present case was a density restriction designed to limit the number of houses constructed on the estate. Its purpose was not to offer protection against the temporary consequences of development. The disturbance which would be experienced by immediate neighbours would not be intolerable and protection from it was not a practical benefit of substantial value or advantage. On the other hand, the development would be intrusive and quite protracted and the disturbance to immediate neighbours called for modest compensation. The owners of specified neighbouring properties were entitled to between £2,000 and £4,000 as compensation for the temporary disturbance they might suffer during the proposed works. No further conditions would be appropriate. Disturbance to other objectors was likely to be negligible and no compensation would be awarded to them.
(4) The objectors’ main concern was that the modification of the restriction would establish a damaging precedent and materially change the physical and legal context in which any future applications for modification would be determined; for those reasons, the retention of the restriction in full force conferred a practical benefit of substantial value or advantage to its beneficiaries. Any application under section 84(1) had to be determined upon the facts and merits of the particular case, and the tribunal was unable to bind itself to a particular course of action in the future in a case which was not before it. However, it was legitimate to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme.
The sole application under consideration in the present case was to permit one additional detached house on the largest plot on the estate. Subject to that modification the restriction would continue to bind the property and other plots on the estate to which it currently applied. The question was whether modifying the restriction to permit the proposed development was likely to open the way to further developments which, taken together, would undermine the efficacy of the protection afforded by the covenants from which the objectors benefitted.
In all the circumstances, the integrity of the original pattern of covenants would not be materially undermined by the proposed modification. Nor would it materially alter the context in which any future application in relation to a different part of the estate would fall to be considered. The requirements of section 84(1)(aa) all having been satisfied, the tribunal would exercise its discretion to permit the proposed modification. Accordingly, it was not necessary to consider the higher hurdle presented by ground (c).
Jonathan Upton (instructed by Dentons UK & Middle East LLP) appeared for the claimant; Andrew Skelly (instructed by Hunters Solicitors) appeared for the objectors.
Eileen O’Grady, barrister
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