Restrictive covenants – Modification or discharge – Section 84(1) of Law of Property Act 1925 – Scheme of mutual covenants affecting riverside land – Applicant seeking modification of restrictions to permit construction of new boathouse – Whether proposed boathouse a breach of the restrictions – Whether restrictions obsolete – Whether appropriate to modify them on other grounds – Application dismissed
The applicant university owned land by the river Dee at Sandy Lane, Chester, on which stood a single-storey boathouse which the applicant had used until 1980 to provide sailing instruction to students of physical education. Since then, the boathouse had been used less frequently until it became dilapidated and fell out of use around 2002. In November 2014, the applicant obtained planning permission to demolish the old boathouse and erect a larger two-storey building, with boat storage, changing rooms, and a new pontoon, to provide better facilities for competitive rowing by its students and those of local academies with which it was associated.
The applicant’s land was affected by restrictive covenants which it applied to modify so as to permit the new boathouse. The restrictions formed part of a scheme of mutually enforceable covenants contained in an 1896 deed, under which a 2.5-acre stretch of riverside land had been partitioned into 12 separate lots which were allocated to the owners of houses in the surrounding neighbourhood. The covenants prohibited the carrying on of any trade or business on the lots, restricted their use to private occupation only as gardens or pleasure grounds, and limited the height of any building to 4’6” above the level of the pavement on the adjoining road.
The applicant argued that the beneficiaries of the covenants had acquiesced in their breach in the past to the extent that they had become incapable of enforcement and were therefore obsolete, within the meaning of ground (a) in section 84(1) of the Law of Property Act 1925. It pointed to breaches by a motorboat club which operated on part of the riverside land and to the construction of an apartment development on another part. It also contended that the restrictions secured no practical benefits of substantial value or advantage to those entitled to their benefit, and should therefore be modified under ground (aa); or that, in impeding the proposed boathouse, the restrictions were contrary to the public interest, within section 84(1A). It also disputed whether, on the proper construction of the covenants, the proposed new boathouse would in fact be a breach of the restrictions governing the use of the land.
Objections were submitted by the owners of other riverside lots within the scheme of covenants, including the owner of the lot immediately adjoining the applicant’s land.
Held: The application was dismissed.
(1) The proposed use of the new boathouse would be a breach of the restrictions dealing with the permitted use of the land. The restriction against the carrying on of any trade or business on the land was the corollary of the requirement to use the land for private occupation only. The context of the obligation was a scheme of mutual covenants entered into by a group of adjoining owners, many of whom were resident in the neighbouring houses; the requirement of private occupation was intended to be restrictive and personal, although not necessarily domestic. While members of a student canoeing or rowing club might be using the land entirely for pleasure, the applicant’s purpose in making the land available for that activity was in fulfilment of its broader educational objectives, which were aptly described as its business. The fact that the applicant’s business was not a commercial enterprise carried on with a view to profit did not make the term an inappropriate one to use in describing its activities.
Nor could the proposed use be described as “private occupation”, even though the applicant’s facilities would not be made available to the general public but would be used only by its members and those with whom it had a close connection. Although the applicant would control access to the new boathouse, the size and fluctuating composition of the group to whom access would potentially be available was inconsistent with the concept of private occupation. While that was a question of degree, and there might not always have been a breach in the past, the proposed future use was too intensive, and involved too many individuals with more remote connections to the applicant, to amount to private occupation of the land.
There had not, in the past, been a breach of the obligation to use the applicant’s land only “as gardens or pleasure grounds”, given that, throughout the period of its ownership, the land had retained the characteristics of a garden. However, the new boathouse would have a much greater footprint, leaving as the only open area a concrete slipway leading to a pontoon on the river. Land occupied almost entirely by a single building used for the storage of boats and the provision of changing facilities, the remainder of which was a concrete slipway with no other use than as a route to the river, could not properly be described as a garden or pleasure ground. The proposed use was of a different type entirely and would breach the restriction.
(2) If circumstances were such that a covenant had become unenforceable, that could justify treating the covenant as obsolete for the purposes of ground (a). However, to establish that a person with the benefit of a covenant was not entitled to enforce it, it had to be shown that it would be inequitable to the covenantor for the court to grant an injunction in all the circumstances of the case. The applicant had not shown that it would be unconscionable or dishonest for the objectors now to seek to enforce the restrictive covenants by injunction. The objectors had not represented to the applicant that the covenants were no longer enforceable. The apartment development encroached only to a modest extent on the riverside land and, while the objectors might have lost the to enforce the covenants against the motorboat club, there had been a lapse of 14 years in any active use of the applicant’s land so that no current impression could be said to have been created concerning the enforceability of the covenants in respect of it. More significantly, there was no objection in principle by any objector to the continuation of the same sort of low-level, non-commercial use as had existed for many years. Their tolerance and neighbourliness in the past should not be taken to have given rise to any genuine expectation in the applicant that a significantly more intensive or intrusive use would be treated with equal indulgence. Those with the benefit of covenants should not feel compelled to object to every inconsequential infringement for fear of losing the right to object to something which might threaten their enjoyment of their own land to a much more significant degree: Richards v Revitt (1877) 7 Ch D 224 applied. Far from being obsolete, the covenants continued to play an important role in preserving the particular character of the land.
(3) Nor was ground (aa) made out on the facts of the case. The ability to prevent the construction of such a relatively tall building in such close proximity to the boundary of the garden of the adjoining owner was a practical benefit of substantial value or advantage secured by the covenants. It was likely that the new structure would dominate and transform the garden and would cast a significant part of the garden in shadow.
(4) The proposed use of the applicant’s land for the new boathouse could be said to be in the public interest since there was a need for improved facilities for the applicant’s own students and the potential for benefits to the wider academic community. However, the fact that a proposed use of land would be in the public interest was not enough, in itself, to satisfy the second limb of section 84(1A); what was required was that. in impeding that use. the covenants were contrary to the public interest. Before that conclusion could be reached, it was necessary to make a broad assessment not only of the beneficial use which was prevented by the covenant but also of the advantages that it secured to those entitled to its benefit.
In the instant case, the benefits of the proposed use of the applicant’s land were outweighed by the degree of damage to the amenity and enjoyment of the adjoining garden by the scale, location and design of the new boathouse; and by the damage that the modification of the covenants would do to the enforceability of the scheme of mutual covenants, which had preserved the very unusual character of the land since 1896. All of those with an interest in the land bound by the scheme had an interest in the continuation of their “local law”. Having regard to those matters, as well as to the benefits that would be secured by the implementation of the applicant’s proposals, it was not possible to conclude that, by impeding those proposals, the covenants were contrary to the public interest: Re Collins’ application (1975) 30 P&CR 527 applied.
Alex Troup (instructed by Lyon Davidson) appeared for the applicant; Tom Weekes QC (instructed by Joliffe & Co) appeared for the owner of the adjoining garden, as objector; Sonia Barry appeared in person for herself and another objector, Joseph Barry.
Sally Dobson, barrister
Read a transcript of Re University of Chester’s application here