Cynically proceeding with a development before seeking the discharge or modification of a restrictive covenant bears on the exercise of the tribunal’s discretion under section 84(1) of the Law of Property Act 1925.
The Upper Tribunal (Lands Chamber) has considered such an application in Fosse Urban Projects Ltd v Whyte and others [2023] UKUT 286 (LC); [2023] PLSCS 205.
The application, filed in October 2022, concerned a covenant “not to use the land other than as garden land in connection with the adjoining property”, which burdened 9 Buttercup Drive, Wymondham, Norfolk. In July 2021, planning permission was obtained for a single house on the land. By the date of the hearing in September 2023, the building works were complete and the house occupied by a director of the applicant company and his family. The applicant relied on grounds (a) (aa) and (c) of section 84(1) of the 1925 Act.
The objectors lived in properties opposite the new house, chosen in reliance on the covenant to protect a green open space in front of them. Their views were now blocked or obstructed and their privacy infringed.
The applicant did not provide a witness statement but relied on an expert report which rejected the objections and any impact on value of the objectors’ property by the development. The report was flawed and, since the expert did not attend the hearing, the tribunal attributed little weight to it.
The tribunal concluded that there was no physical connection between the property and the land intended to benefit from the covenant which had now been developed. So, the covenant could no longer be fulfilled and was obsolete. Ground (a) succeeded.
Ground (aa) also succeeded. The use of the land was reasonable and the covenant impeded such use. The retention of an open aspect and the prevention of overlooking were practical benefits but they were not of substantial value in money terms. A road and pathway passing in front of one objector’s property meant that the location was not entirely private. The other still enjoyed an open aspect and the loss of privacy was marginal.
Ground (c) failed since both objectors would be injured by the discharge or modification of the covenant.
However, the tribunal refused to exercise its discretion to discharge or modify the covenant. The company was aware of the restriction and that it was enforceable and deliberately went ahead with the development gambling that its neighbours would neither seek to restrain the development nor resist the discharge or modification of the covenant.
Louise Clark is a property law consultant and mediator
