Discharge or modification of a restrictive covenant under section 84(1) of the Law of Property Act 1925 has two stages: establishing the ground and the exercise of the court’s discretion.
The Upper Tribunal (Lands Chamber) has granted a second application to modify covenants in a building scheme despite breach of them in Howard and another v Surana [2023] UKUT 248 (LC).
The case concerned plots of land adjacent to Surana’s property at 21 Icklingham Road, Cobham, Surrey, which she sold for development in 2020 having secured the modification of a scheme of mutual covenants to allow the construction of one house per plot under a specified planning permission Re Surana’s application [2016] UKUT 0368 (LC).
The applicants, now the owners of the two building plots, sought further modifications of the scheme covenants to allow access to the new houses through hedges which the scheme required to be planted and maintained on plot boundaries. Planning permission to change the access had been obtained.
At the tribunal’s site visit it became apparent that the houses were being constructed under a different permission – they were smaller, in different positions and had altered layouts to that approved in 2016 – and so were in breach of the modified covenants.
The applicants sought modification of the scheme covenants to allow the constructed permission and the access permission under section 84(1) (aa) of the 1925 Act. There were no objections to the Howards’ application. Surana objected to the Baineses’ house but not the driveway.
The tribunal was satisfied that in the seven years since the decision in Surana events had moved on and the proposal to install two drives in the hedges was acceptable. The houses were not dissimilar to many houses constructed on the estate within the past 10 years and represented a reasonable user for the purposes of the 1925 Act.
The Baineses’ house, adjacent to Surana’s, was considerably larger and noticeably closer to hers than that permitted in 2016. The covenant prevented the development and secured to Surana a practical benefit but it was not of substantial value or advantage: there was no greater overlooking, no particular loss of sense of space than from the permitted development and no greater impact on the integrity of the building scheme. Section 84(1)(aa) was satisfied.
The construction of the houses was almost complete but by exercising its discretion to allow the modification, the tribunal would not be rewarding cynical conduct by the applicants Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45.
Louise Clark is a property law consultant and mediator
