Restrictive covenant – Discharge or modification – Restriction prohibiting construction of more than one house on plot – Applicants applying for discharge or modification to enable construction of second house – Planning permission not yet granted for second house – Section 84(1)(a) and (aa) of Law of Property Act 1925 – Owners of adjoining property objecting to application – Whether restriction obsolete – Whether impeding reasonable user of applicants’ property – Application dismissed
The applicants purchased a residential property in a suburb of Sheffield in September 2012 and subsequently fenced off part of the garden with a view to constructing a second house on it. A restrictive covenant affecting the property prohibited the construction of more than a single dwelling on the property and the applicants accordingly applied to the Upper Tribunal, under section 84(1) of the Law of Property Act 1925, for the discharge or modification of the covenant to permit the proposed development to go ahead. The owners of the adjoining property, who had the benefit of the covenant objected to the application.
The applicants relied primarily on grounds (a) and (aa) in section 84(1), namely that the restriction was obsolete or that it impeded a reasonable user of the land and did not secure any practical benefits of substantial value or advantage to the persons entitled to its benefit.
At the time of the application, planning permission had not been granted for the proposed new house. The applicants had made pre-application planning enquiries of the local planning authority, whose planning officer had confirmed that the property lay within a conservation area but that a dwelling on the site would be acceptable in principle, although he indicated that changes to the drawings submitted by the applicants would be needed, including a reduction in the footprint of the new house and a variation to the proposed vehicular access route.
In relation to ground (a), the applicants relied on changes to the character of the surrounding neighbourhood through extensive residential development as showing that the restriction was obsolete. In relation to ground (aa), an issue arose as to whether the proposed user was reasonable in circumstances where planning permission did not exist for it; the applicants contended that it was reasonable since the local planning authority had indicated that the proposed dwelling was acceptable in principle.
(1) The application could not succeed on ground (a) in section 84(1) of the 1925 Act. On the evidence, any change in the character of the neighbourhood had been only minor. The area continued to be a fairly leafy suburb of Sheffield and any development that had taken place was in keeping with the original Victorian houses that predominated. Moreover, even if there had been a significant change in the character of the neighbourhood, in order to show that the restriction was obsolete the applicants would still need to show that the original purpose of the restriction could no longer be achieved. They could not do so in the instant case. The original purpose of the covenants was to protect the amenity of the adjoining property and that purpose could still be achieved. It followed that the restriction was not obsolete.
(2) When considering an application on ground (aa) in section 84(1), the first question that had to be decided was whether the proposed user was reasonable: Re Bass Ltd’s application (1973) 26 P&CR 156 applied. It was not possible to find that the applicants’ proposed user was reasonable in circumstances where the drawings which they had produced were insufficiently precise to permit a meaningful assessment of how the proposed house was likely to impact on the objectors, where the planning officer had concerns about various aspects of the proposal, and where there had been no real explanation as to how those concerns would be alleviated. Accordingly, the application on ground (aa) fell at the first stage.
Even if the planning permission had been granted for the proposed development and the first hurdle had been overcome, the tribunal would still have rejected ground (aa) since the restrictions, in impeding the proposed user, secured to the objectors practical benefits of substantial value or advantage. The effect on their amenity of any new house even vaguely resembling that proposed by the applicants would be considerable. The restriction was of substantial advantage to the objectors in enabling them to resist such development. Moreover, on the valuation evidence, the impact of the proposed development would result in a £50,000 diminution in the value of the adjoining property. It followed that the benefit to the objectors of relying on the covenants to impede the proposed user of the applicants’ land secured a practical benefit of substantial value.
The first applicant appeared in person; Christopher Moss (instructed by rradar legal, of Hessle) appeared for the objectors.
Sally Dobson, barrister
Click here to read the transcript: Re Snook and another’s application
