Section 84(1) of the Law of Property Act 1925 enables a tribunal to modify or discharge restrictive covenants if certain conditions are satisfied. Cole v Wardell [2018] UKUT 368 (LC) concerned an application to modify a restrictive covenant that was preventing the construction of an additional house on bare land in a small residential development comprising eight houses.
The area in question had been shown as open land on the plans that accompanied the original application for development. But it not been landscaped and, because nobody was under an enforceable obligation to maintain it, the land had been become overgrown. However, no one could build on it because the developer had covenanted that the development would comprise no more than eight houses.
The applicant entered into a conditional contract to buy the land and applied for the modification of the covenant to enable him to build an additional house on it – for which planning permission had already been granted. The applicant relied on ground (aa) (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) and ground (c) (no injury will be caused if a restriction is modified or discharged). But the owner of one of the houses in the development objected to the modification of the covenant.
The objector’s house had been constructed on land that was burdened by exactly the same covenant. So he did not enjoy the benefit of it. However, he also owned a narrow strip of land, which he had acquired and incorporated into his rear garden, which did form part of the land that benefitted from the covenant.
So the tribunal had to decide whether the only benefits that the objector enjoyed (ground (aa)), or injury that he might sustain (ground (c)), which it could take into consideration, were those enjoyed or sustained in his capacity as the owner of the strip of land in his rear garden. Or were the benefits that the objector enjoyed or injuries that he might suffer in his capacity as the owner of the house relevant too, even though the house itself did not benefit from the covenant?
In Lamble v Buttaci [2018] UKUT 175 (LC), the Upper Tribunal accepted that, for the purposes of ground (aa), the benefit of a covenant is capable of being secured to a person having the benefit of it by reference to a wider area than that to which the benefit is strictly annexed. Consequently, the objectors were entitled to rely on the impact that a proposal to build would have on any part of their land – and not simply on the land that benefitted from the restriction. And the tribunal could see no reason why the same rationale should not apply to ground (c).
However, the judge was unable to conclude that the restriction secured any practical benefit of substantial value or advantage to the objector or that he would suffer any loss, disadvantage or injury from the modification of the covenant. Consequently, the tribunal modified the covenant to enable the development to proceed.
Allyson Colby, property law consultant
