A restrictive covenant is not obsolete if its purpose can still be achieved despite changes in the neighbourhood.
The Upper Tribunal (Lands Chamber) has modified a restriction under section 84(1) of the Law of Property Act 1925 in Clarion Housing Association Ltd v Chitty and others [2024] UKUT 187 (LC).
The case concerned Court Lodge, originally an estate comprising 14 acres of land in the centre of Wrotham near Sevenoaks. In 1975, two acres in the south-west corner were sold to the local authority on terms limiting its use to an old persons’ warden scheme with gardens and ancillary uses. Such a development, St George’s Court, was constructed in around 1981. Other parts of Court Lodge were sold after 1975 and comprised residential development, some adjoining the application land, each with the benefit of the restriction.
Clarion acquired the land in 2018 and demolished St George’s Court in 2023 following difficulties filling the units. It argued that warden-controlled schemes for older people were no longer viable and sought to discharge or modify the restriction to provide that the land could not be used other than for residential or ancillary purposes. It had secured planning permission for a 38-unit, two-storey residential development of the site including affordable housing. The design largely replicated St George’s Court in terms of layout and ridge height. Many local residents objected based on the need to maintain housing for elderly people.
A restriction will be deemed to be obsolete under section 84(1)(a) if, because of changes in the character of the property or neighbourhood, the objectives for which the restriction was imposed can no longer be achieved. The purpose of the covenant was not as Clarion and the objectors assumed, to ensure that the land was used to accommodate older people, but to prevent it from being used for any other purpose. That purpose could still be achieved. The objectors, who lived in an adjoining development, for the over-55s, had demonstrated that there was a demand for housing for older people in the area.
The proposed development was a reasonable use of the land which the restriction impeded under section 84(1)(aa). Only those properties adjoining the development were likely to be affected by it and since it had been designed to mirror the scale and massing of the previous buildings there was unlikely to be any discernible effect in terms of amenity or value. So, in impeding the development, the restriction secured no practical benefits of substantial value or advantage to the objectors. The tribunal modified the restriction as sought.
Louise Clark is a property law consultant and mediator
