Re Stanborough’s application
Restrictive covenant – Application for discharge or modification to permit development of applicant’s land – Section 84(1)(aa) and (1A) of Law of Property Act 1925 – Restriction not benefiting entirety of objectors’ land – Only part of garden and garden room benefited – Whether all land in objectors’ ownership to be considered when determining whether restriction securing practical benefits – Whether such benefits secured – Application dismissed
The applicant applied for the discharge or modification of a restrictive covenant affecting his property near the coast in Poole, Dorset, so as to allow him to implement a planning permission for the demolition of an existing detached house and its replacement with three four-storey detached houses. The grounds for the application included ground (aa) in section 84(1) of the Law of Property Act 1925, namely that the restriction impeded a reasonable user of the land and did not secure to persons entitled to its benefit any practical benefits of substantial value or advantage. The covenant in question had been given by the vendor under a 1955 conveyance for the benefit of the land conveyed.
The owners of a nearby property submitted objections to the application. Only a part of the objectors’ land, added to their garden in 1979 and containing a garden room, benefited from the restriction. The land on which their bungalow was situated did not benefit from the restriction and had formed part of the vendors’ retained land under the 1955 conveyance. An issue arose as to whether, for the purpose of section 84(1)(aa) and 84(1A), the consideration of practical benefits extended to the whole of the objectors’ land or just the part with the benefit of the covenant.
Held: The application was dismissed.
(1) There was no authority that supported a parasitic claim for benefits based on the coincidence of common ownership of the benefited land and other land, where that land was not part of a building scheme: Gilbert v Spoor [1983] 1 Ch 27 distinguished. The greater part of the objectors’ land did not have the benefit of the restriction. It was excluded from the benefited land because it was part of the retained land of the vendor and covenantor. The fact that it was now owned together with benefited land did not mean that it could be integrated into the objectors’ total land ownership for the purposes of considering any substantial practical benefits that were secured to them by the restriction. That land did not becomes entitled to the benefit of the restriction by virtue of its particular ownership. Since there was no building scheme, with the attendant system of “local law” that such a scheme carried with it, then only the benefits secured to the objectors by the restriction through their ownership of the benefited land, and no other land, fell to be considered. There was a specific covenant restricting use of defined burdened land, for the benefit of defined benefited land, and the benefits secured by the restriction enured to the benefited land only.
It followed that no account could be taken of any benefits that the restriction secured in respect of the objectors’ use and enjoyment of the greater part of their property and, in particular, from their occupation of their bungalow.
(2) The applicant’s preferred development scheme would detract from the sea view from the garden room and would adversely affect the visual amenity and quiet ambience of the additional garden land generally. Accordingly, the restriction, by impeding the development, secured to the objectors practical benefits of substantial advantage in relation to the additional garden land and garden room. Discharge or modification of the restriction should therefore be refused.
Timothy Morshead QC (instructed by Rawlins Davy plc, of Bournemouth) appeared for the applicant; Tom Weekes (instructed by Turners Solicitors LLP, of Bournemouth) appeared for the objectors.
Sally Dobson, barrister
Restrictive covenant – Application for discharge or modification to permit development of applicant’s land – Section 84(1)(aa) and (1A) of Law of Property Act 1925 – Restriction not benefiting entirety of objectors’ land – Only part of garden and garden room benefited – Whether all land in objectors’ ownership to be considered when determining whether restriction securing practical benefits – Whether such benefits secured – Application dismissedThe applicant applied for the discharge or modification of a restrictive covenant affecting his property near the coast in Poole, Dorset, so as to allow him to implement a planning permission for the demolition of an existing detached house and its replacement with three four-storey detached houses. The grounds for the application included ground (aa) in section 84(1) of the Law of Property Act 1925, namely that the restriction impeded a reasonable user of the land and did not secure to persons entitled to its benefit any practical benefits of substantial value or advantage. The covenant in question had been given by the vendor under a 1955 conveyance for the benefit of the land conveyed.The owners of a nearby property submitted objections to the application. Only a part of the objectors’ land, added to their garden in 1979 and containing a garden room, benefited from the restriction. The land on which their bungalow was situated did not benefit from the restriction and had formed part of the vendors’ retained land under the 1955 conveyance. An issue arose as to whether, for the purpose of section 84(1)(aa) and 84(1A), the consideration of practical benefits extended to the whole of the objectors’ land or just the part with the benefit of the covenant.Held: The application was dismissed.(1) There was no authority that supported a parasitic claim for benefits based on the coincidence of common ownership of the benefited land and other land, where that land was not part of a building scheme: Gilbert v Spoor [1983] 1 Ch 27 distinguished. The greater part of the objectors’ land did not have the benefit of the restriction. It was excluded from the benefited land because it was part of the retained land of the vendor and covenantor. The fact that it was now owned together with benefited land did not mean that it could be integrated into the objectors’ total land ownership for the purposes of considering any substantial practical benefits that were secured to them by the restriction. That land did not becomes entitled to the benefit of the restriction by virtue of its particular ownership. Since there was no building scheme, with the attendant system of “local law” that such a scheme carried with it, then only the benefits secured to the objectors by the restriction through their ownership of the benefited land, and no other land, fell to be considered. There was a specific covenant restricting use of defined burdened land, for the benefit of defined benefited land, and the benefits secured by the restriction enured to the benefited land only.It followed that no account could be taken of any benefits that the restriction secured in respect of the objectors’ use and enjoyment of the greater part of their property and, in particular, from their occupation of their bungalow.(2) The applicant’s preferred development scheme would detract from the sea view from the garden room and would adversely affect the visual amenity and quiet ambience of the additional garden land generally. Accordingly, the restriction, by impeding the development, secured to the objectors practical benefits of substantial advantage in relation to the additional garden land and garden room. Discharge or modification of the restriction should therefore be refused.Timothy Morshead QC (instructed by Rawlins Davy plc, of Bournemouth) appeared for the applicant; Tom Weekes (instructed by Turners Solicitors LLP, of Bournemouth) appeared for the objectors.
Sally Dobson, barrister
