Restrictive covenants – Discharge or modification – Law of Property Act 1925 – Applicants having right to use amenity land in common with other householders on residential estate – Applicants seeking discharge of covenant against fencing amenity land so as to permit enclosure of part within their private gardens – Other householders objecting – Section 84(1)(a), (aa) and (c) of 1925 Act – Whether covenant becoming obsolete – Whether objectors deriving benefits of substantial value from restrictions or injured by their removal – Application dismissed
The applicants owned properties on a small housing estate in Mottram, Cheshire. The houses on the estate were arranged around an area of “amenity land”, which the residents of the estate were entitled to use in common with each other. The relevant rights were contained in conveyances from a housing association, as the original developer, in 1981, by which each house had been sold together with a portion of the amenity land, but subject to mutual rights of way entitling the owners of each house to use the amenity land for recreation. The conveyances contained covenants prohibiting the owners of the houses from erecting fences and other structures on their parts of the amenity land and requiring them to contribute to the cost of maintaining the amenity land.
In 2010, the applicants obtained planning permission to change the use of their parts of the amenity land to private garden areas. They proceeded to erect fences around those areas to enclose them within their domestic gardens. In order to legitimise that state of affairs, they applied to the Upper Tribunal, under section 84(1) of the Law of Property Act 1925, seeking the discharge or modification of the covenant against fencing in the 1981 conveyances.
The applicants relied primarily on grounds (a), (aa) and (c), respectively that the covenants had become obsolete, or impeded a reasonable user of the land and did not secure any practical benefits of substantial value or advantage to the persons entitled to the benefit of them, or the discharge of the covenant would not injure those persons. The applicants contended that the relevant parts of the amenity land had fallen into neglect and were unused, furthermore, the character of the estate had changed in that, after the housing association had ceased to exist and with the increase in owner-occupation, there was no longer any mechanism for enforcing the original “co-ownership” ethos of the estate.
Other residents objected to the application, contended that the amenity land should be kept in common use and that the erection of the fences was preventing them from exercising their right of way.
Held: The application was dismissed.
(1) When determining whether a restriction had become obsolete, the key test was whether the original object of the restriction could be achieved. The object of the covenants in the 1981 conveyances could still be achieved. Increased owner-occupation was not a relevant factor, since the restriction was contained in a conveyance of the properties to owner-occupiers. The houses had therefore been in owner-occupation for the entirety of the time that the restriction had been in place. There was little evidence of change since then, and none that showed a change in the character of the amenity land or the neighbourhood other than the erection of fences, which could easily be removed. It followed that ground (a) was not made out.
(2) In relation to ground (aa), the use of the amenity land as domestic gardens, in a domestic setting, was a reasonable user of the land which was impeded by the existence of the restrictions imposed by the covenants. It was difficult to conceive of a private garden in a domestic setting without some form of boundaries. However, the restrictions should not be discharged or modified on ground (aa) since they still secured practical benefits to the objectors. Each householder benefited from the use of the amenity land, of which the application land formed part, for recreational use. It was irrelevant whether the application land, by its nature, was unsuited to some forms of recreation. It would be suitable for other forms, whether birdwatching, nature-related activities or others. On balance, the restriction was of substantial advantage to the objectors.
(3) Nor was ground (c) made out on the facts of the case. The removal of the restrictions had the potential to form the “thin end of the wedge”, setting a precedent and creating a risk that, if the restriction were discharged in the instant case, then other applications relating to other parts of the amenity land would be similarly decided. Any difference in the nature of the application land when compared with the rest of the amenity land was not so stark as to prevent future gradual incursions into the remainder if the present applications were successful. It would be inevitable that further enclosures would take place, which would result in injury to the objectors since they would not benefit from access over the whole of the amenity land.
(4) Moreover, had any individual ground been made out, it would still have been inappropriate to discharge the covenants owing to the existence of the easement granted by the 1981 conveyances, in the form of a right of way over the whole of the amenity land for the purposes of recreation. The application sought the discharge only of the covenant against fencing, but the removal of that restriction would still leave in place the other covenants and the right of way, leading to an inequitable and unworkable situation in which further disputes would be likely. The removal of the covenant against fencing would remove one impediment to the enclosure of the amenity land, but would not legitimise interference with the objectors’ easement.
The first applicant appeared in person for the applicants; James Holmes-Milner (instructed by MTA Taylor Moore LLP) appeared for the objectors.
Sally Dobson, barrister
Click here to read transcript: Re Clarke and others’ application
