Restrictive covenant – Application for modification – Proposal to build additional bungalow in grounds of existing property – Building scheme – Whether restriction securing practical benefits of substantial value or advantage to neighbours with benefit of covenant – Whether alleged benefits adequately protected by planning regime – Relevance of building scheme – Application refused
The applicants applied, under section 84 of the Law of Property Act 1925, to modify a restrictive covenant that prohibited the construction of more than one bungalow or dwelling-house on their property. Their house had been built in the 1960s as part of a building scheme and the covenant benefited various neighbours whose properties also formed part of the scheme. The applicants sought the modification in order to carry out a project for which they had obtained planning permission; the project involved the partial demolition of their existing bungalow and the construction of an additional detached bungalow. They relied upon the ground in section 84(1)(aa) of the Act, namely that the restriction impeded a reasonable proposed user and did not secure to those benefiting from the covenant any practical beneficial advantage of substantial value, and that the beneficiaries would be adequately compensated with money.
Several neighbours with the benefit of the covenant objected to the proposed modification. They expressed concerns about the effect of the proposed bungalow in terms of noise, visual amenity and overlooking and argued that the restriction secured practical benefits of substantial value to them by maintaining the integrity of the building scheme, thus ensuring that the original character of the estate was preserved and that it remained a peaceful, low-density development. The applicants contended that benefits such as the existing street scene and the character of the estate were adequately protected by the planning regime, pursuant to which planning permission for the new bungalow had been granted. They further argued that the existence of a building scheme did not give rise to a greater presumption that the restriction should be upheld and that they had discharged the evidential burden of showing that it should be modified.
Held: The application was refused.
Restrictive covenants and planning were distinct and separate systems of control. The fact that the local planning authority had granted permission for the new bungalow was not determinative of the issues concerning amenity that fell to be considered in the context of the application for modification of the restrictive covenant. They had to be examined by reference to the restriction and whether it secured to the objectors practical benefits of substantial value or advantage: Re Martin’s Application [1989] 1 EGLR 193; [1989] 05 EG 85 and Lawntown v Camenzuli [2007] EWCA Civ 949; [2008] 01 EG 446 applied. On the evidence, the restriction, by impeding the development of the bungalow, secured practical benefits of substantial advantage to various of the objectors in terms of outlook, freedom from traffic, freedom from the disturbance of further residential activity and peace and quiet. That was sufficient grounds for refusing the application.
Moreover, the existence of a building scheme was a material factor to which the tribunal should attach weight: Dobbin v Redpath [2007] EWCA Civ 570; [2007] 4 All ER 465 applied. The integrity of the building scheme remained intact. Maintaining that integrity represented a substantial practical benefit of value to the objectors and allowing the application would deprive them of that.
Further, the applicants’ proposals would be out of character and would make that corner of the estate appear cramped. The fact that they could extend their existing bungalow without breaching the restriction did not prevent that from being a relevant factor: Re Fairclough Homes Ltd LP/30/2001 unreported 23 April 2004 applied. No evidence had been adduced about the design or construction of any such extension or whether it was likely to be undertaken.
Julia Beer (instructed by Harold Stock & Co, of Mossley) appeared for the applicants; Robert Darbyshire (instructed by Price Mears & Co, of Rochdale) appeared for the objectors.
Sally Dobson, barrister
