Re 21A City Walls Chester [2018] UKUT 99 (LC) concerned an extension to a boutique hotel located on the City Walls surrounding Chester, overlooking the River Dee. The proprietors of the hotel had purchased an adjoining property and obtained planning permission to convert it into an annexe containing four additional bedrooms. But the property was subject to a restrictive covenant limiting its use to use as a dwelling house.
The proprietors of the hotel applied for the modification of the covenants pursuant to section 84(1) of the Law of Property Act 1925. They relied on grounds (aa) (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) and (c) (no injury will be caused if a covenant is modified or discharged).
The owners of the property that benefitted from the covenants were concerned that the annexe would be occupied by holiday-makers, instead of a family with an interest in having good relations with their neighbours. They claimed that their quality of life would be impaired and that their garden would be overlooked. They were concerned that there would be far more noise and about the potential for drinking, smoking and talking in the annexe garden late at night. They also suspected that the annexe would need motion-triggered lighting around it, which would disturb their sleep.
Even so, the tribunal did not consider that the restrictive covenant secured any practical benefits of substantial value or advantage to the objectors, or that they would be injured by the modification of the covenant to permit the creation of an annexe to the hotel.
The properties in the immediate vicinity were in mixed use. There were private houses, hotels, offices, a public house and eating establishments within 100 metres. The objectors’ property was not in any sense secluded from its neighbours or from visitors to the City Walls and any view from the annexe over the objector’s property could be protected by an obscured glass privacy panel. And, since the walkway was already illuminated by street lights, the tribunal doubted that any additional light pollution would be significant.
In the tribunal’s judgment, the opportunity for raucous behaviour inside the annexe was limited and the opportunity for any real disturbance from the garden was too small to be given much weight. It would be a condition of the modification of the covenant that the annexe garden should not be raised above its current level. The applicants would also be prohibited from landscaping the exterior except in the fashion of a residential garden, and from creating a terrace or patio or installing decking or a seating area in the garden.
It is also worth noting that the tribunal considered it likely that additional prohibitions on external modifications, new structures and colour schemes “without first obtaining the consent of the Transferors” had been discharged by the death of the persons whose consent was required. In any event, the objectors had no right to be consulted and the covenants did not benefit them.
Allyson Colby is a property law consultant
