Building scheme – Proposed bungalow – Appellant wishing to develop land subject to restrictive covenant – Appellant seeking to modify restriction to permit development – Neighbours objecting to modification as undermining purpose of building scheme – Effect of existence of building scheme – Whether building scheme giving rise to increased presumption against modification – Appeal dismissed
The appellant owned an area of open and undeveloped freehold land situated in a quiet residential cul-de-sac comprising five houses. He obtained planning permission to erect a detached bungalow and private garage. However, the land formed part of a building scheme under which each plot was subject to a restrictive covenant. The covenant, imposed under a conveyance, which was made in 1960, prevented the construction of further buildings without the written consent of the then vendor.
The appellant applied to the Lands Tribunal, under section 84 of the Law of Property Act 1925, to modify the restriction so as to permit the development to go ahead. He argued that : (i) the proposal was supported by planning policy; (ii) the amenity of the neighbourhood would not be adversely affected; (iii) there would be no material increase in development density; and (iv) the value of neighbouring properties wold not fall.
The respondent owners of two other plots in the cul-de-sac objected to the proposed modification. They contended that it would increase the residential density and adversely affect the exclusivity, seclusion and privacy of the distinctive local environment.
The tribunal dismissed the application on the basis that the existence of the building scheme increased the presumption that the restriction would be maintained.
The appellant appealed arguing, inter alia, that the tribunal had erred in law in applying an increased presumption against modification of the restrictive covenant.
Held: The appeal was dismissed.
The use of the term “increased presumption” was apt to be misleading. It was preferable for the tribunal to consider the weight to be attached to the special interest of other residents arising from the existence of a building scheme: Re Bromor Properties Ltd’s application (1995) 70 P&CR 569 considered.
However, the tribunal had addressed all the relevant statutory considerations and had had regard primarily to the overall effect of the proposal upon the integrity of the building scheme, by reference to density and plot size, and had correctly adopted a broad approach to the adverse effects of the proposal upon the amenities of the other plot owners: Gilbert v Spoor [1983] Ch 27 considered.
The tribunal was entitled to find that the purpose of the building scheme continued to be fulfilled by the maintenance of a pleasant, quiet local environment. The cul-de-sac was distinct in character from that of neighbouring roads, which provided a practical benefit of substantial advantage to the respondents. That was a matter of weight for the tribunal and no grounds had been established upon which the appeal court could interfere with its decision: Shephard v Turner [2006] EWCA Civ 8; [2006] 2 EGLR 73; [2006] 20 EG 294 considered.
Philip Coppel (instructed by Darling & Stephensons, of Darlington) appeared for the appellant; Christiaan Zwart (instructed by Ward Hadaway, of Newcastle-upon-Tyne) appeared for the respondents.
Eileen O’Grady, barrister
