Restrictive covenants: alternative applications undermine intention  

An application to the Upper Tribunal (Lands Chamber) to discharge a restrictive covenant under section 84(1) of the Law of Property Act 1925 is not a consultation process. Applications and proposals presented in the alternative are likely to confuse and diminish the prospects of success. The tribunal has considered these issues dismissing an application in Briant v Baldacchino [2024] UKUT 164 (LC). The case concerned 47 Brook Lane, Corfe Mullen, north of Poole, a plot of 0.14 ha, owned by the applicant on which was sited a small partly thatched period cottage badly damaged by fire. He intended to split the site into two plots each with their own access. The objector was the owner of the adjoining property at 49 Brook Lane. In 1987 a covenant was imposed on number 47 for the benefit of the adjoining owners at number 49 not to erect any further building on the property save for an extension to the existing garage in accordance with plans submitted and approved in writing by them. Briant’s application was for modification to allow any one or two of seven dwellings to be constructed, only four of which had planning permission. His main focus was on ground (aa) that the restriction impeded a reasonable use of the land and did not secure the objector any practical benefits of substantial value or advantage. The objector argued that the restriction was imposed to preserve the tranquillity of the rear garden of number 49 which was vulnerable to activity from the adjoining higher ground of the application land. Briant’s approach made it difficult for the tribunal to understand and have confidence in his true intentions for the development: the various proposals had evolved constantly. He had relentlessly pursued planning applications for two large houses on the site, making minor changes to proposals and resubmitting them as new and separate applications – 32 in all – to overcome planning resistance. The greater length and mass of the replacement for the period cottage would feel overbearing and the noise and intrusion from domestic activity of a five-bedroom house immediately adjacent and above number 49 would impact on the enjoyment of it and reduce its value. Such considerations were of less concern for the second plot but allowing severance of the site would create uncertainty around the first plot which would also impact on the value of number 49. In impeding the proposals for both plots the covenant secured benefits to the objector of substantial value so the tribunal had no jurisdiction to modify the covenant. Louise Clark is a property law consultant and mediator