Land – Restrictive covenant – Modification – Applicant proposing to demolish bungalow and erect two new dwellings in breach of single dwellinghouse covenant – Applicant seeking modification of restrictions – Whether covenant securing practical benefits of substantial value or advantage – Whether modification injuring persons entitled to any practical benefit – Application granted
The applicant applied to modify a restrictive covenant that burdened the title to The Walk, Lower Road in the village of Ufford, a designated conservation area, near Woodbridge in Suffolk. The applicant obtained planning permission to demolish the existing four-bedroom bungalow and subdivide the property to provide a replacement four-bedroom house with an additional three-bedroom bungalow to the rear. In June 2017, the applicant had obtained consent for extension and refurbishment of the existing four-bedroom bungalow into a five-bedroom dwelling which was not affected by the restriction.
A single dwelling restriction was contained in a 1957 conveyance, of a neighbouring property, Shincliffe, in which the vendor covenanted to impose similar covenants on the future disposal of numbered plots shown on a plan, including The Walk.
The applicant applied to modify the covenant, to permit implementation of the development, under section 84(1)(aa) of the Law of Property Act 1925 (its continued existence would impede reasonable user of the land for public or private purposes) and (c) (modification would not injure the persons entitled to the benefit of the restriction). He had an earlier extant planning consent to extend and refurbish the existing bungalow to provide a five-bedroom house which was not affected by the restriction.
Shincliffe had no common boundary with The Walk because another property, which was also one of the numbered plots in the 1957 conveyance, sat between them. The three properties shared an access area, which was unregistered with no known owner.
Held: The application was granted.
(1) The objectors said that the restriction was intended to preserve the character of a very attractive and desirable neighbourhood and that the main benefits to them were: preventing a dominating new house which would unbalance the view to the three properties from the road; preventing increased wear and tear on the access area, the repair cost of which would be shared by them; and preventing an increased number of vehicles parking in the access area. Further, modification or removal would create the risk of further development on the plot and further applications for density restrictions to be lifted on the plots of surrounding properties.
It was unfortunate that the objectors did not fully appreciate the nature of an application for modification under section 84, and the importance of comparing what was proposed with what could realistically be done without the proposed modification. The applicant would be entitled to implement the 2017 planning permission and he would be likely to do so if this application was refused. In that context, the objectors’ concerns over impeded parking and damage to the access area during the construction period fell away. Constructing the single house in the 2017 consent would have the same impact. Concern over an altered outlook would remain under the consent for a larger house.
(2) The concerns which arose from having a second dwelling on the property were the prospect of additional temporary parking in the access area and of bearing a one third share of additional wear and tear on that area. The approved plans provided for two cars to be parked at the bungalow and for a passing area in the new drive which would be available for a temporary additional vehicle. That answered the concerns of the objectors over parking. Also, it was not unusual for the access area to be used for occasional parking by contractors visiting any of the three properties that currently used it, which caused no problem. There was no reason to suppose that such occasional parking would become a problem as a result of the additional dwelling.
The additional wear and tear on the surface caused by the comings and goings of the occupiers of one additional house was unlikely to be significant. If and when repair to the access area was required, it was reasonable to assume that the neighbours would share it between them equitably. The surface had stood up well over time and an additional two cars at the bungalow was unlikely to make any difference to it. Moreover, the applicant had offered to underwrite the cost of a new surface should his construction work make repair necessary, which would be of comfort to the objectors.
(3) The objectors’ concerns over creating a precedent for increasing density were understandable but did not amount to a practical benefit. The planning officer had stated that each application was determined on its own merit and the same applied to any application to the Upper Tribunal for modification of a restriction. Should a similar application be made for any of the other numbered plots in the 1957 conveyance, the context would be that of immediate neighbours, which was not the case here, so the considerations would be different.
Section 84(1B) of the 1925 Act required the tribunal, in determining whether a restriction ought to be modified, to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. Evidence on that was provided by the applicant within the planning officer’s report which recommended the grant of planning consent.
(4) The tribunal was also required to take into account the period at which, and context in which, the restriction was created or imposed and any other material circumstances. The covenant was entered into 65 years ago, when generous sized plots of land from a former estate were being sold off for development. The planning policy framework for the area would have been very different at that time. Councils were now required to deliver a sufficient supply of homes and the planning officer’s report explained that infill development represented an important source of new small-scale housing supply and was an important contribution to the overall housing supply. The application for planning consent was tested and modified to ensure compliance with the relevant planning policies in respect of the conservation area and the residential amenity of neighbouring properties.
Accordingly, section 84(1)(aa) was made out and the tribunal had discretion to modify the restriction which impeded a reasonable use of the property and did not secure to the persons entitled to the benefit of it any practical benefits. It followed that section 84(1)(c) was also made out because the proposed modification would not injure those persons.
James McCreath (instructed by IBB Law) appeared for the applicant; The objectors did not appear and were not represented.
Eileen O’Grady, barrister
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