Restrictive covenant – Application for modification – Section 84(1)(aa) of Law of Property Act 1925 – Appellants seeking to erect bungalow – Restrictive covenant prohibiting erection of residence – Respondent objecting on ground that use of garden adjoining bungalow would disturb her privacy – Lands Tribunal refusing to make modification – Whether restriction securing practical benefits of substantial value or advantage to respondent – Whether tribunal wrongly construing covenant as preventing garden use of property – Appeal dismissed
The appellants obtained planning permission to construct a bungalow in the north-east corner of their property. A restrictive covenant affecting their land prohibited the erection of a “residence”. The appellants applied to modify or discharge the covenant to allow the bungalow to be built. They relied upon section 84(1)(aa) of the Law of Property Act 1925, namely that the restriction impeded a reasonable use of the land and did not secure any practical benefits of substantial value or advantage to the persons entitled to its benefit. The respondent, as owner of the adjoining property, objected to the modification of the covenant, contending that the restriction protected the privacy of her property, which was not overlooked or disturbed by the presence of a close neighbour, and that the privacy of her garden would be disturbed by the proximity of an adjoining rear garden that would be used by the occupants of the new bungalow.
It was accepted that the use of the land proposed by the appellants was reasonable, that the covenant restricted that use and that the restriction secured some practical benefit to the respondent. In dispute was the issue of whether the benefits so secured were of “substantial value or advantage” to the respondent. The Lands Tribunal upheld the respondent’s objection and declined to modify the covenant.
The appellants appealed. They contended that the covenant did not secure benefits of substantial value or advantage for the respondent since the area adjoining her property could be used as a garden in any event without breaching the restriction and without any need to obtain planning permission. They submitted that the tribunal had wrongly construed the covenant as preventing such use and had consequently taken an immaterial consideration into account in reaching its decision and had failed to consider the application by reference only to such practical benefits as would accrue from the restriction on erecting a residence.
Held: The appeal was dismissed.
The covenant did not restrict the use of the property as a garden. Nothing in the covenant or in planning law prevented the owners of the property from using any part of it as a garden, including the part adjoining the respondent’s property. Such use by the appellants would not be caught by the restriction but would intrude on the privacy of the respondent’s garden.
The tribunal had not erred in its construction of the covenant. It had not regarded the covenant as preventing garden use, but had correctly understood that the practical benefit of the covenant for the respondent was in preventing the erection of a residence on the land to ensure that her privacy would be protected not only from the erection of the bungalow, but also from use of an adjoining part of the property as a garden ancillary to occupation of the bungalow. Those benefits were derived from the restriction against the erection of a residence on the property, rather than from any specific restriction on garden use. The tribunal had taken the correct approach by making a comparison between the existing state of the property subject to the covenant on the one hand, and, on the other, the effect upon the respondent if the property were freed from the covenant so as to permit the proposed development. It had been entitled to conclude that the practical benefits of the restriction, namely the ability to prevent the development of the property by the erection of a residence, which would also involve ancillary use of a garden adjoining her property, were of substantial value or advantage to her.
Paul Stinchcombe (instructed by Watson Burton LLP) appeared for the appellants; Catherine Taskis (instructed by Blackett Hart & Pratt, of Gateshead) appeared for the respondent.
Sally Dobson, barrister
