To establish ground (b) of section 84(1) of the Law of Property Act 1925, all who have the benefit of the restriction must agree to its modification.
The Upper Tribunal (Lands Chamber) has considered this provision in Rogers and another v Dinshaw and others [2023] UKUT 1 (LC).
A 1980 conveyance prohibited any extensions to the applicants’ bungalow in Redwood Grove, Bude, Cornwall, without prior written approval to the works by the vendors or their successors. The covenant was imposed by Roy Dinshaw, when various plots of land which formed part of a large house and grounds were sold off. The sales led to the development of the bungalow and properties in Redwood Close, adjacent to and behind the bungalow. Roy Dinshaw built and occupied 5 Redwood Close, opposite the bungalow. Following his death, his son Anthony and his family lived there.
In breach of the restriction, the applicants had constructed two unauthorised extensions to the rear of the bungalow in 2018. During the course of the works the applicants had liaised with Roy Dinshaw, who verbally approved the plans for the works and told them to carry on with them. Periodically, Anthony Dinshaw had also visited.
Breach of the covenant came to light in 2022 when the applicants came to sell the bungalow and purchasers raised a query about the works. The applicants sought retrospective consent from Anthony Dinshaw but, frustrated with lack of progress, applied to the tribunal to discharge the covenant.
While it was understandable for Roy Dinshaw to want to control what was built on the land being sold, the context was different 43 years later. However, there was still value in preventing development which might affect amenity but not require planning permission. The covenant was not obsolete.
The extensions were a reasonable use and were impeded by the covenant. However, they were relatively inconsequential and incapable of creating a precedent for more intrusive development. Preventing them was not a practical benefit to the objectors. Ground (aa) was satisfied and so, it followed, was ground (c).
Save for Roy Dinshaw, those with the benefit of the covenant had not consented to the works. It was not known who they were and, save for neighbours, they had not been asked. Ground (b) was not satisfied.
The tribunal was satisfied that the applicants were unaware of the restrictions when they built the extensions and their motivation was to create a more comfortable home, not to make a profit. It modified the covenant to enable the retention of the two extensions as built.
Louise Clark is a property law consultant and mediator
