Restrictive covenants – Discharge or modification –Section 84(1)(aa) of Law of Property Act 1985 – Applicants’ property forming part of estate with mutually enforceable covenants prohibiting the erection of any wall or fence – Applicants seeking to discharge or modify covenant to permit construction of low boundary wall around their property – Whether restriction securing to those entitled to its benefit any practical benefits of substantial value or advantage – Application dismissed
The applicants were the owners of a house on a residential estate in Pulborough, West Sussex. The estate comprised 22 houses developed on the site of a former fruit farm. Most of the houses were arranged around a central green, although the applicants’ property was on a corner pot which did not front onto the green. Each property was affected by a mutually enforceable scheme of covenants, including a restrictive covenant prohibiting the erection of any wall or fence save as a replacement for a similar existing wall or fence. All the land on the estate, save for the freehold titles to the individual properties, was held on trust.
After purchasing their property, the applicants began preparatory work to build a low wall around the whole roadside frontage of the property. Those works did not require planning consent but they were a breach of the restrictive covenant. The applicants proceeded to lay foundations for the new wall, but the estate trustees then advised the applicants that, having canvassing the opinion of estate residents, they would not give consent for the wall.
The applicants applied to discharge or modify the restrictive covenant so as to permit the wall. They relied primarily on the ground in section 84(1)(aa) of the Law of Property Act 1925, namely that the restriction impede a reasonable user of their land and did not secure to those entitled to its benefit any practical benefits of substantial value or advantage.
The trustees objected to the application, acting on instructions from the majority of the estate residents. They contended that the restriction secured the benefit of preserving the openness and soft landscaping of the estate and that the construction of the wall would alter the open character of the estate. The applicants argued that the wall would not change any of the views on the estate and that the spirit and intention of the covenant would remain. They also pointed to the fact that a number of other properties on the estate had boundary walls or fences erected in breach of covenant and that the trustees had taken no enforcement action in respect of them.
Held: The application was dismissed.
(1) The restriction impeded a reasonable user of the land, the relevant use being use as a domestic garden with a small wall around it, as opposed to an open-fronted plot. In a residential estate, such a use was reasonable. However, the restriction should not be discharged since it secured practical benefits of substantial value or advantage to the other residents. The purpose of the restriction was to prevent “hard” boundaries and to maintain the open aspect of the estate. That was a practical benefit, which was secured by the ability of objecting residents to refuse any application for a new fence or wall. It was irrelevant in that regard that the applicants’ property did not front onto the green. While the wall in itself might not be a significant structure, it would nonetheless set a precedent for similar development by other estate residents.
The weakness on the objectors’ case was that the trustees had allowed apparent breaches of the covenant, including by allowing a high fence for which planning permission had been granted as part of a planning application for a front extension to one of the estate properties, although that fence was set back from the road to some extent. There was a difficulty in the trustees’ position of apparently allowing breaches of the restriction where such breaches had been fully publicised as part of the planning process, while objecting to a wall which did not require planning permission. However, it was understandable why they had done so. The trustees’ concerns about the wall were valid, since the building of a new brick wall along the back of the pavement edge would break new ground and, if it were condoned by way of a discharge or modification, it would inevitably lead to other applications which would soon erode the ethos of an open estate with, in the main, soft landscaping. The trustees had acted reasonably in resisting the application and it was not appropriate to discharge or modify the restriction.
Stephen Woolf (instructed by Fletcher Day) appeared for the applicants; Simon Breasley, property consultant, appeared for the objectors with the consent of the tribunal.
Sally Dobson, barrister
Click here to read a transcript of Re Davie and another’s application
