Restrictive covenant – Modification – Obsolescence – Applicants enclosing porch extension across shared communal porch and erecting boundary fence severing shared communal access – Restriction preventing alteration or addition without written consent – Applicants applying to modify restriction – Whether restriction deemed obsolete – Whether restriction securing practical benefits of substantial value or advantage – Whether money being adequate compensation for loss or disadvantage – Application dismissed
The applicants owned a property at 16 Urswick Road, Dagenham, Essex, within an area of terraced and semi-detached housing known as the Becontree Estate which was owned by Barking and Dagenham London Borough Council (the objector). Through the Right to Buy Scheme, introduced in the Housing Act 1980, some of the properties had been sold into private ownership, subject to restrictive covenants in favour of the objector.
The covenant required the property owner not to suffer or permit the exterior of the property (including the gardens) to be altered or added to without the previous consent in writing of the objector; or to do any act or bring or allow to remain on the property anything which might be a nuisance to the occupiers of the adjoining or neighbouring property or cause damage to or affect the stability of or depreciate the value of any adjoining property.
The applicants sought modification of a restrictive covenant burdening the property, under section 84(1)(a) and (aa) of the Law of Property Act 1925, to enable them to retain a porch and boundary fence erected in 2021 in breach of the covenant. The objector owned and let the adjoining property (No 18) which had been affected by the works.
The application was made during a period when the objector was granted a county court injunction requiring demolition of the works and restoration of the communal porch to its original condition which was the subject of an appeal.
Held: The application was dismissed.
(1) The original purpose of the covenant in preserving the character of the neighbourhood, ie, its visual amenity and appearance, was to keep the buildings in their original and uniform design. However, the ownership structure of the neighbourhood had changed over the 42 years since the covenant was imposed, in locations and at times beyond the control of the objector. Under the terms of the deed of transfer the objector could have enforced the covenant over any of the sold properties to prevent the alterations described. It had chosen not to do so and had allowed the appearance of the neighbourhood to change over time. By reason of changes in the character of the property and the neighbourhood since the covenant was imposed, the original purpose of the covenant in preserving the character of the neighbourhood as a whole could no longer be achieved.
But the secondary purpose of the covenant, in assisting the objector to guard against changes to the character and amenity of its own property, had a particular relevance on the estate where communal porches were an original defining feature. The objector only enforced the covenant where it retained ownership of an adjoining property. The existence of unauthorised changes before the disputed works suggested that, even when it did own adjoining property, the enforcement was selectively focused on changes which had direct impact on the objector’s property.
(2) However unsightly the split porch arrangement looked, it was not uncommon on the estate. But the applicants had gone too far in carrying out work to the objector’s property without consent, which was an act of trespass. In contrast, the erection of a dividing fence had created significant problems for the neighbours. The original layout involved a wide communal path to the porch, with shared access rights. The gatepost which the applicants had moved to the centre line appeared from the title plan to have been originally on their property but, by moving it and erecting a boundary fence, they had deprived the neighbours of the benefit of shared access along the communal path.
It was obviously essential for the objector to guard against changes such as those which had taken place at the property and No 18, insofar as they had an impact on its tenants. The fact that the objector continued to take enforcement action in response to similar situations meant that the secondary purpose of the covenant, assisting it to guard against changes to the character and amenity of its retained property, could still be achieved. Overall, the covenant should not be deemed obsolete.
(3) For the same reasons, the ability to guard against unauthorised changes to its retained property was a practical benefit to the objector which took into account the objector’s duty as landlord to ensure that its tenants did not suffer from the impact of such changes. The tribunal had heard no evidence on whether the practical benefit secured to the objector was of substantial value, and no evidence on whether money would be an adequate compensation for the loss which would arise from modification. The objector relied on the finding of county court judge that damages would not be an adequate remedy for the harms suffered by the breach of covenant and submitted that the covenant secured to the objector a practical benefit of substantial advantage, but the tribunal was not persuaded that there was sufficient evidence to call the advantage substantial. However, even where the advantage of a benefit was not substantial, the tribunal only had jurisdiction under section 84(1) to modify a restriction if money would be an adequate compensation for the loss suffered by modification. The lack of evidence on that from either party, supported by the conclusions previously drawn by the judge, led to the conclusion that this case was a rare example of one where the advantage of a practical benefit could not be measured in monetary terms. Therefore, the tribunal did not have jurisdiction to modify the covenant to permit the works.
(4) It was unfortunate that the objector’s approach to estate management in this case did not include informed engagement with the applicants at the outset, when the works were commenced and then paused, so that they could have understood properly the nature of breach they were about to commit.
In all the circumstances, the tribunal had no jurisdiction to modify the covenant under ground (a) that it ought to be deemed obsolete or under ground (aa) because it secured to the objector a practical benefit of advantage, and money would not be an adequate compensation for the disadvantage it would suffer from modification.
Ashley Thompson (instructed by AJ Reubens Solicitors, of Beckenham) appeared for the applicants; Natalie Pratt (instructed by London Borough of Barking and Dagenham Legal Services) appeared for the objector.
Eileen O’Grady, barrister
