Restrictive covenant – Discharge or modification – Section 84(1)(a) of Law of Property Act 1925 – Covenant prohibiting use of applicant’s land other than as means of access to former school site for purpose of renovation of school building and subsequent use as single private dwelling – Applicant seeking discharge or modification of covenant to permit development of five dwellings – Whether restriction obsolete – Whether applicant entitled to rely on evidence of architect to counter report of jointly instructed expert – Application dismissed
In 2010, the applicant acquired part of the site of a former primary school together with an adjoining parcel of land (the burdened land) that had formerly comprised part of the rear garden to the objector’s residential property on the High Street in Killamarsh, Sheffield. The burdened land had originally been sold off in 1999 in order to provide a means of vehicular access to the former school site. The 1999 conveyance contained a restrictive covenant, for the benefit of the objector’s property, prohibiting the use of the burdened land other than as a means of access to the former school site for the purpose of renovating the school building and thereafter using it as a single private dwelling-house.
The applicant applied, under section 84(1) of the Law of Property Act 1925, for the discharge or modification of the restrictive covenant to permit her to build up to five residential units, with car parking, on her land. She relied on ground (a) in section 84(1), namely that the restriction had become obsolete by reason of changes in the character of the property, the neighbourhood or other material circumstances. She contended that the splitting of the school site into two titles was a change of circumstances that, in the absence of any modification of the covenant, would leave her without any possibility of planning permission for improvement or renovation to her part of the site. She argued that there was a need for supported housing for the elderly in the area, which her proposed development could help meet, and that such development would improve the aesthetic appearance of the area while not greatly increasing noise levels.
The objector contended that the restriction still fulfilled its original purpose of minimising noise levels and preserving the privacy of those living in and visiting her property; she argued that the restriction continued to benefit her personally, as the original covenantee, as well as protecting her property from the effects of overdevelopment.
The parties instructed a single joint expert to produce a report. The objector later invited the applicant to withdraw her application on the ground that, in light of the contents of the expert’s report, the restriction was not obsolete and the application had no prospect of success. The applicant did not withdraw her application but instead sought to rely on the evidence of her architect as an expert witness to counter the joint expert’s evidence.
Held: The application was dismissed.
(1) The applicant should not be given permission to rely on the evidence of her architect save so far as it related to issues of fact. The applicant had never made any formal application for further directions for the filing of further expert evidence. The architect’s statement regarding perceived changes of circumstances did not satisfy the necessary test in relation to the production of expert evidence. He was not impartial since it was retained as the applicant’s architect looking after the interests of his client. Moreover, he had failed to address relevant factors relating to the test of obsolescence.
(2) The tribunal was satisfied that the findings made by the jointly instructed expert in his report were a true and accurate reflection of the circumstances. The tribunal endorsed the expert’s conclusions that the character of the objector’s land and of the neighbourhood were generally the same now as they had been in 1999, that there had been no material change in the neighbourhood and that the restriction still serves its original purpose and could not be described as obsolete. If the applicant disagreed with the findings of the jointly instructed expert, she should have made a formal application to instruct her own expert evidence to be adduced in the case. She had not done so, but had instead attempted to rely on her architect to provide opinion evidence that he was not qualified to give. That being so, the findings of the joint expert stood as being conclusive of the circumstances. Furthermore, the reasons for the imposition of the restriction remained as relevant today as they had when they were first imposed in 1999. The application was wholly without merit and should be dismissed accordingly.
Lorna Rainey appeared as a lay representative for the applicant; Amit Gupta (instructed by Band Hatton Button, of Coventry) appeared for the objector.
Sally Dobson, barrister