Section 84 of the Law of Property Act 1925 empowers tribunals to discharge or modify restrictive covenants. Re University of Chester’s Application [2016] UKUT 457 (LC); [2016] PLSCS 299 concerned covenants affecting land by the River Dee in Chester, dating back to 1896. The covenants prohibited any trade or business, specifying that the land must be used for private occupation only, as gardens or pleasure grounds. They also limited the height of any summer houses or boathouses erected on the land.
The property at the centre of the dispute housed a small, dilapidated, single-storey boathouse, which had fallen into disuse. The University of Chester, which owned it, had obtained planning permission for the construction of a large two-storey “community rowing and fitness facility”, but needed to overcome the obstacle posed by the covenants first.
The height of the new boathouse would exceed the limit set by the covenants. Would its use infringe the covenants as well? The tribunal ruled that the university was using the land for a business purpose and had done so, in breach of covenant, for over 35 years. The proposed future use would be more intensive and the size and fluctuating range of users would be inconsistent with the concept of “private occupation”. The new building would swallow up the site and, although students might derive pleasure from boating activities, they would not be using the land as a garden or pleasure ground.
Ground (a) in section 84 applies where a restriction is obsolete due to changes in the character of the property or neighbourhood, or as a result of other circumstances. Had the longstanding breach of covenant by the university rendered the user covenants obsolete? The tribunal noted that the existing boathouse had not been in use for 14 years and ruled that past tolerance and neighbourliness did not mean that the university was entitled to expect a significantly more intensive, intrusive use to be treated with equal indulgence. Landowners who benefit from covenants should not feel compelled to object to every inconsequential infringement for fear of losing the right to object to more significant breaches.
Ground (aa) applies where a restriction impedes some reasonable use of land and does not secure to those entitled to the benefit of it any practical benefits of substantial value or advantage, or if it is contrary to the public interest, if a monetary payment will provide adequate compensation for the discharge or modification of the covenant. The tribunal ruled that the covenants were not contrary to the public interest, even though they would prevent the construction of a new boathouse that would benefit the community (which had outweighed any negative impact on the conservation area for planning purposes).
However, the proposed use was reasonable. Even so, the tribunal was satisfied that the ability to prevent the construction of such a relatively tall and visually intrusive building in such close proximity to the objector’s garden was a practical benefit of substantial value or advantage. Furthermore, an award of money would be an inadequate substitute for unimpeded enjoyment of a beautiful space, which had been preserved by a scheme of mutual covenants that had achieved its object for 120 years.
Allyson Colby is property law consultant
