Restrictive covenant – Discharge – Section 84(1)(aa) of Law of Property Act 1925 – Applicant owning property in residential suburb subject to “one house” restriction – Applicant obtaining now expired outline planning permission for second house – Applicant seeking to discharge restrictive covenant – Neighbours objecting — Whether restriction having practical benefits of substantial value or advantage to objectors – Application dismissed
The applicant owned a property at 39 Muswell Road, Mackworth, Derby. The property had a large side garden upon which the applicant wished to build a second house. She was prevented from doing so by a “one house” restriction contained in a 1970 conveyance, and so applied to the tribunal to have the restriction discharged.
The objectors were her neighbours whose garden adjoined the application land, and they objected to the application owing to the affect it would have on their property.
Mackworth was a suburb on the west outskirts of Derby. Originally a local authority housing estate, much of Mackworth was now in owner-occupation through the right-to-buy scheme. In the 1950s, the former borough council disposed of a series of plots in the south-west corner of Mackworth on long-term building leases, with each lease benefiting from mutual covenants.
The application to discharge the restriction was under section 84(1)(aa) of the Law of Property Act 1925. There was no application to modify the restriction.
Ground (aa) was satisfied where the restriction impeded some reasonable use of the land for public or private purposes, and the tribunal was satisfied that, in so doing, the restriction secured “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or the restriction was contrary to the public interest. The tribunal also had to be satisfied that money would provide adequate compensation for any loss or disadvantage which that beneficiary of the restriction would suffer from the proposed discharge or modification.
Held: The application was dismissed.
(1) In determining whether a restriction ought to be discharged or modified under ground (aa), the tribunal was required to take into account the statutory development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area. It also had to have regard to the period at which and context in which the restriction was imposed and any other material circumstances.
Applications under ground (aa) were often formulated around the questions posed in Re Bass Ltd’s Application (1973) 26 P&CR 156: (i) whether the proposed “user” (using the term in the Act, but which referred to use rather than the person using) was reasonable; (ii) whether the restriction impeded that user; (iii) whether the restriction secured to the objectors practical benefits; (iv) whether those practical benefits were of substantial value or advantage.
(2) In the present case, while there was no current detailed planning permission, there was an expired outline consent. And the original building scheme envisaged one house per plot. In answering the first question in Re Bass in its widest sense, the erection of a house in a residential area was a reasonable one.
It was common ground that the restriction impeded that user. Further, the restriction secured to the objectors practical benefits. While many of the things that the objectors complained about could equally occur without the restriction being breached, for instance a very large extension of the applicant’s existing house, that seemed to be improbable. It was clearly a practical benefit to the objectors to be able to prevent a second house being built nearer to their own property.
As regards practical benefits of substantial value or advantage, the application ran into difficulties. The problem for the applicant was that she had applied for a blanket discharge. That made it difficult to assess the effect on the objectors’ property. There was no current planning permission and, by discharging the restriction, the tribunal would leave the objectors liable to whatever planning permission the applicant, or anyone to whom she sold the land, could obtain. That might be something along the lines of the previous outline consent, or the later proposal. But it might equally be for something else. It followed that the issue of substantiality, which the applicant had to prove, had not been made out.
(3) The objectors submitted that the tribunal should discourage any further applications to it if the applicant were to reapply with firmer proposals and a valid planning permission, as the tribunal did in Re Snooks’ Application [2014] UKUT 623 (LC); [2015] PLSCS 356.
Property disputes between neighbours were invariably stressful for the parties, and while the tribunal acknowledged and understood the objectors’ desire to avoid further litigation, it was not appropriate to close the door to any further applications. In Re Snook, the application was also unsuccessful on other grounds, which was not the case here. However, that should not be construed as even a provisional view as to any future application which would, as always, be determined on its merits.
The parties appeared in person.
Eileen O’Grady, barrister
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