Restrictive covenant – Discharge or modification – Applicants wishing to erect three-storey side extension to town house – Property subject to restrictive covenant not to alter external plan or elevation – Applicants applying to discharge or modify restrictions before planning permission granted – Whether restrictions obsolete – Whether proposed use reasonable – Whether covenant securing practical benefits of substantial value or advantage – Application dismissed
In April 2009, the applicants purchased a property at 52 Beechcroft Manor, Weybridge, Surrey, and lived there with their two children. The property was a three-storey town house at the end of a terrace of three similar but not identical houses within a spacious private development. The applicants wished to extend their property to provide more independent space and a comfortable working environment for the family. Both applicants were able to work from home in their current employments and sought the flexibility to do so if they became self-employed people running their own businesses.
The applicants applied to discharge or modify restrictive covenants that burdened the title to the property and prevented any alteration to the external plan or elevation of the building and prevented its use for business purposes.
The application was made under section 84(1)(a) of the Law of Property Act 1925 (the restriction had become obsolete because of changes to the neighbourhood); and section 84(1)(aa) (the continued existence of the restriction would impede reasonable use of the land and secured no practical benefits of substantial value or advantage to those with the benefit of them).
The neighbours objected arguing that the restrictions were not obsolete because there was no evidence of appreciable change in the neighbourhood since they were imposed and they continued to protect the nature of the original development.
In January 2022, the local authority confirmed that the proposal for a three-storey side extension, submitted for pre-application advice, was acceptable overall, subject to formal consultation with neighbours and relevant consultees.
Held: The application was dismissed.
(1) The applicants had submitted that changes in the character of the neighbourhood were about to happen as a result of planning consent granted for the construction of additional floors above blocks of flats on the development. However, there was no evidence of such consent before the tribunal or of any other changes in the character of the property or the neighbourhood; nor any other material circumstances to suggest that the restrictions ought to be deemed obsolete. Accordingly, ground (a) was not satisfied.
(2) The objectors were concerned that removing the restriction might allow a commercial enterprise to be run from the property in the future, which would be detrimental to the residential nature of the development. However, the planning statement indicated that use of the property exclusively for a business would not gain planning permission.
Working from home or running a business from home did not require planning permission and were not considered in planning terms to be inappropriate in a residential area. Moreover, the business restriction did not impede the uses they proposed, in which business use would remain ancillary to the primary residential use of the property.
(3) There was no doubt that the restriction impeded construction of the proposed extension. The existence of a planning consent was often viewed as good evidence of a proposed use being reasonable. There was as yet no consent, but the response to a pre-application enquiry described the proposal as conditionally acceptable. In the absence of submissions to the contrary, the proposed use was reasonable in general terms.
On the evidence overall, the building restriction secured specific practical benefits to No 51 but no discernible practical benefits to the objectors in general. If the practical benefits secured by the restriction were of substantial advantage to any of the objectors, ground (aa) would not be made out. Therefore, the question was whether the benefits secured to No 51 could be described as substantial.
The controls provided within the planning system were there to ensure that the adverse impact on neighbours of proposed development was mitigated by a framework of national policy and guidance. The additional protection provided by the restriction was important but was not a substantial advantage: Shephard v Turner [2006] 2 EGLR 73 considered.
(4) Whether money would be an adequate compensation could not be determined in the absence of a planning permission with its associated conditions. If planning permission was obtained which recognised the importance of structural engineering drawings for excavation and reconstruction of the retaining wall, and those conditions were followed rigorously, then in principle modification should cause no permanent loss or disadvantage requiring monetary compensation. There would inevitably be temporary disruption and disturbance during the construction phase but, in an appropriate case, the tribunal would have no difficulty in assessing compensation for any such temporary inconvenience.
(5) Section 84(1)(B) required the tribunal to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. The review of local planning policy documents in the planning statement confirmed that the design of the proposed extension met the requirements of the development plan for the area.
The tribunal was also required to take into account the period at which, and context in which, the restrictions were created or imposed and any other material circumstances. When the restriction was imposed in 1989, it was for the final phase of the development which had since remained unchanged. However, national planning policy had evolved considerably over the intervening 33 years and that context was very different today.
(6) Jurisdiction had been made out under ground (aa) for the building restriction to be modified since it impeded a reasonable use of the property and did not secure practical benefits of substantial value or advantage. However, it was then necessary for the tribunal to decide whether it should exercise its discretion to modify: Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45; [2021] EGLR 1 followed.
A lack of planning permission was not necessarily fatal to an application for modification. However, the structural concerns affecting No 51 required specialist engineering input, for which a conditional modification would be inappropriate. Therefore, the tribunal was not prepared to exercise its discretion to modify the building restriction before scrutiny and determination through the planning process had taken place. If planning permission was obtained, the applicants could renew their application or engage directly with the objectors to see whether their concerns had been satisfied by the permission and its conditions: Smith v Goodwin [2021] UKUT 145 (LC) considered.
Lorraine Francis (solicitor) appeared for the applicants; the objectors did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Naidu and another v Morton and others
