Restrictive covenant – Application for modification or discharge – Section 84(1)(aa) of Law of Property Act 1925 – Whether restriction securing practical benefits of substantial value or advantage for objectors to application – Whether relevant that loss of view complained of could result from extension without breaching covenant – Application refused
The applicant obtained planning permission to build four two-bedroom apartments in the rear garden of his property, together with a bin store, cycle storage area and a new access onto the highway. The property was subject to a restrictive covenant that prohibited the erection of more than one dwelling-house and garage. The applicant applied to discharge or modify the covenant to permit the proposed development on the ground, pursuant to section 84(1)(aa) of the Law of Property Act 1925, that it impeded a reasonable user of the land and secured no practical benefits of substantial value or advantage to those entitled to its benefit.
Local residents with the benefit of the covenant objected to the application, raising issues concerning privacy, amenity, traffic, smells, reduction in property values and the setting of a precedent that would have a serious effect upon the character of the neighbourhood. One particular issue was the loss of a view of trees along the highway. The applicant contended that the loss of view was not material since his property could be extended with a broadly similar effect without breaching the restriction. The objectors submitted that the tribunal should not have regard to such a hypothetical situation.
Held: The application was refused.
The potential or hypothetical use that could be made of a property without breaching the restriction was to be taken into account in any consideration of ground (aa): Shephard v Turner [2006] EWCA Civ 8; [2006] 2 EGLR 73; [2006] 20 EG 294 and Duffield v Gandy [2008] EWCA Civ 379 considered. However, in the instant case there was no evidence that the applicant had any intention of adding an extension or that such development would be feasible.
The proposed block of flats would interfere with the privacy and views of objectors’ properties, adversely affect the general character of the neighbourhood and increase the risk of future residential development in gardens. The power to prevent such effects was a practical benefit of substantial advantage to the objectors. Accordingly, ground (aa) was not made out.
Montague Palfrey (instructed by Parkes Browne, of Andover) appeared for the applicant; Geoffrey Zelin (instructed by Lester Aldridge LLP, of Bournemouth) appeared for Mr and Mrs Fennell as objectors; Clifford Crompton, another objector, appeared in person.
Sally Dobson, barrister
