Land – Restrictive covenant – Modification – Restriction preventing construction of more than one house per plot – Land with planning consent for additional dwelling adjacent to existing house – Whether proposed user being reasonable – Whether covenant securing practical benefits of substantial value or advantage to objectors – Whether modification causing injury to defendants – Application granted
The claimants applied for the modification of restrictive covenants burdening land which
they owned at The Leasow, 4, River View Close, Chilbolton, Hants. Modification, if granted, would allow the claimants to demolish a large indoor swimming pool building, attached to their house and replace it with a detached two-storey private dwelling house with integral garage, new landscaping and parking area on garden land between the house and the western boundary, in accordance with planning permission granted in 2014.
The development on which the application land was situated had been built in accordance with planning permission granted in 1962 for eight houses and the conveyance contained a restrictive covenant prohibiting the construction of more than one house per plot. The burdened land comprised the whole of the area transferred. The benefitted land, on which the defendant objectors owned properties, was adjacent to the burdened land. In 1984 and 2004, two further properties had been built on one of the River View plots known as Fairways. In relation to the 2004 development, the third defendant consented to an application to modify the restriction so as to permit the construction.
The plot which included the application land came into the claimants’ ownership in 2012 and the following year they built an indoor swimming pool. In 2014, their financial circumstances changed and they obtained planning permission to demolish the pool building and replace it with a detached two-storey house. The defendants were not consulted prior to obtaining planning permission. They contended that they would suffer adverse effects from the proposed development and that modification of the restriction would constitute the “thin end of the wedge”, potentially resulting in a large number of similar applications from other River View Close residents. The third defendant claimed that her consent to the 2004 development had been exceptional due to the personal circumstances of the owner of Fairways.
Held: The application was granted.
(1) The planning consent obtained for the proposed development was clearly within the development plan and accorded with the local planning authority’s general policies as to appropriate residential development. What was proposed was not out of keeping with what had been permitted elsewhere in the vicinity and would not be overly large or dominant on a plot which was too small, as the defendants had suggested. It was beyond question that the proposed user of the application land was reasonable. It was common ground that the existence of the restrictions impeded that reasonable use. Moreover, there was no doubt that, in impeding that proposed user, the restriction did not provide practical benefits of substantial value and advantage to the defendants. The benefitted land was so far away from the application land that there would be no adverse effect upon any of the defendants’ houses. The proposed new house would not have a substantially devaluing effect on those houses and there was no reason to believe that their peace and tranquillity would be disturbed. They would not suffer the effects of increased traffic, noise or other disturbance from the proposed development.
(2) It was clear that the defendants’ real concern was that, if the application was successful, it might set a precedent for further development of River View Close. The two further properties built on Fairways had already destabilised the integrity of the protection which the restriction afforded to the development as it was originally planned and constructed. The circumstances surrounding the 2004 development were not so different as to make any comparison with the instant application unsustainable. The third defendant had permitted a similar development to the claimants’ proposal in terms of house type, plot size and location and so accepted the sort of change which the restriction was designed to prevent. Furthermore, the land upon which the proposed new house was to be situated was not virgin garden land but was already occupied by a not insignificant structure. To allow the application would not open the floodgates to further applications, since any such applications would have to be determined on their own merits and the beneficiaries of the restriction would be able to rely on the principle that allowing an application which did not cause injury to the defendants should not be used in future to support an application that did cause injury. Therefore, the proposed development would not detrimentally affect the character or ambience of River View Close or the neighbourhood in general or any of the benefitted land. Accordingly, the restriction did not secure to the objectors any practical benefits of substantial value or advantage and the application succeeded under section 84(1)(aa) of the Law of Property Act 1925: Re Snaith and Dolding’s Application (1995) 71 P & CR 104 and Re Forjac’s Application (1976) 32 P & CR 464 applied.
Stephen Jones (instructed by Barker Son & Isherwood, of Andover) appeared for the claimants; the defendants appeared in person.
Eileen O’Grady, barrister
Click here to read transcript: Dean and another v Freeborn and others
