Where the use of land or the right to build on land is restricted by covenant, any interested party interested can apply to the Lands Chamber of the Upper Tribunal for the covenant to be modified or discharged: see section 84(1) of the Law of Property Act 1925.
Applications to modify restrictive covenants are usually made in order to facilitate development that can be described in general or specific terms. For instance, the applicant may ask the tribunal to relax a restrictive covenant to enable additional dwellings to be built on land, for a house to be converted into flats or so that land can be used for a particular trade or business. In such cases, the tribunal may impose conditions restricting, for example, the type of materials to be used, the position or height of any new buildings, the installation of windows overlooking the adjoining land or the layout of gardens or the provision of parking.
In Re Flowers’ Application [2010] UKUT 23 (LC); [2010] PLSCS 67, the applicant was concerned that a successor in title to an estate owner with the benefit of covenants prohibiting householders from altering or adding to their homes or constructing new or additional buildings without consent had been demanding and receiving payments for approvals. This upset her; she believed that the restrictive covenants were enforceable by the original estate owner but not by successors. She asked the Lands Chamber of the Upper Tribunal to modify the covenants that bound her and offered to substitute the following covenants:
“Not at any time to make alterations or additions whatsoever to the property hereby transferred that are not in keeping with the scale, design and character of the neighbouring properties. Not to erect any other building of a permanent or temporary nature upon the property.”
The application was unopposed, but the tribunal rejected it. The judge ruled that the modification was inappropriate because the prohibition against making alterations or additions “that are not in keeping with the scale, design and character of neighbouring properties” would cause insuperable problems. In his view, the issue of whether an alteration or addition would be in keeping with other properties in the neighbourhood required a subjective judgment where different opinions could reasonably be held.
The restriction may have been more acceptable had the applicant identified a suitable person to act as the arbiter in the event of any dispute as to what was in keeping with the neighbourhood. As drafted, however, the judge took the view that the restriction was so fraught with difficulty that it could give rise to future disagreement and possible litigation.
The decision provides practitioners with a useful insight into the tribunal’s approach. The courts may be forced to adjudicate in disputes arising out of existing covenants in such terms but they are unlikely to exercise their discretion to approve the imposition of new covenants unless they are straightforward and easy to apply without further judicial intervention.
Allyson Colby is a property law consultant
