Even where there have been changes in the character of the property and the neighbourhood so that the original purpose of a covenant in preserving the character of the neighbourhood cannot be achieved, the covenant is not obsolete if it is still capable of guarding against changes to the character and amenity of specific property.
The Upper Tribunal (Lands Chamber) has considered this issue dismissing an application to discharge or modify a restriction under section 84(1) (a) of the Law of Property Act 1925 in Awinoron and Anor v London Borough of Barking and Dagenham [2025] UKUT 139 (LC).
The case concerned alterations to property owned by the applicants on the Becontree Estate, owned by the respondent council. The applicants’ property at 16 Urswick Road adjoined 18 Urswick Road which was owned and let by the council. The properties originally had a shared open porch and undivided front gardens.
When the applicants’ property was transferred into private ownership in 1982 the transferee covenanted for himself and his successors in title not to suffer or permit any alteration to the exterior of the property or the gardens without the council’s prior written consent.
The applicants acquired number 16 in December 2015 by which time unauthorised alterations to the exterior – installation of double-glazed doors in the open porch, a bay window and creation of an open parking area – had already taken place.
The applicants took steps to add a private porch to number 16 in 2021, having obtained a Lawful Development Certificate from the council’s planning department. The council objected and obtained injunctive relief. The applicants sought to discharge or modify the restriction arguing inter alia that it was obsolete.
While the original purpose of the covenant – to preserve the visual amenity and appearance of the neighbourhood – was clear, the ownership structure of the neighbourhood had changed since it was imposed. There were various styles of doors and windows, bay window additions and paving of front gardens. The council had not objected to these but allowed the appearance of the neighbourhood to change over time. So, the original purpose of the covenant could no longer be achieved.
However, its secondary purpose – to assist the council to guard against changes to the character and amenity of its own property – was still relevant even if enforcement was selectively focused on changes which had a direct impact on its property. The split porch did not create particular problems but the applicants had trespassed on number 18 and the erection of a dividing fence at the front had created significant problems.
Louise Clark is a property law consultant