Restrictive covenants – Discharge or modification – Building scheme – Section 84(1) of Law of Property Act 1925 – Applicant applying to discharge or modify restrictive covenants imposed by building scheme so as to permit addition of third storey to her property – Whether restrictions securing practical benefits of substation value of advantage to those entitled to their benefit – Whether development contrary to ethos of estate – Whether setting precedent for other such development – Application dismissed
The applicant owned a two-storey detached house on a 1980s self-build housing estate in London E14, comprising 34 houses clustered around a Grade II listed, although currently derelict, church and surrounded on three sides by a park. The properties on the estate were all two- and three-storey terraced family houses apart from the applicant’s property, which was the only detached house. The properties were subject to a building scheme, with restrictive covenants prohibiting the extension, enlargement or external alteration of any property without the prior written consent both of a residents’ association and of the owners of all parts of the estate that were contiguous with the property which was sought to be altered.
The applicant applied to discharge or modify the covenants, pursuant to section 84(1) of the Law of Property Act 1925, so as to permit her to add a third storey to her property pursuant to a planning permission granted in 2008 and renewed in 2013. The residents’ association had refused its consent for the development. Objections to the application were submitted by the residents’ association and by four contiguous owners.
The applicants relied primarily on ground (aa) in section 84(1), namely that the restrictions impeded a reasonable user of the property and did not secure any practical benefits of substation value of advantage to those entitled to their benefit. She argued that her proposed development was in keeping with the character and appearance of the estate, would not set a precedent for other such development since, as the only detached house, her property was unique on the estate, and would not affect the amenity of the other residents.
The objectors contended that the development would be contrary to the ethos of the estate, would adversely affect its character and appearance and affect the amenity of other residents, and would set a precedent for other such development on the estate.
Held: The application was dismissed.
When deciding whether to discharge or modify the restrictions, the existence of a building scheme was a contextual matter to which the tribunal was required to have regard under section 84(1B) of the 1925 Act and was a matter on which it was entitled to place weight: Dobbin v Redpath [2007] EWCA Civ 570; [2007] PLSCS 92 applied.
The design concept of the estate was to create a high-density housing development with a sense of place and community, providing family accommodation of various sizes clustered around the dominant structure of the church. That concept had been skilfully achieved and the estate retained those characteristics today.
The residents’ association had played an active part in maintaining the character and form of the estate. Although it had already given consent for, or not objected to, a number of garage conversions on the estate to create additional rooms within existing structures, the applicant’s proposal was different both in scale and kind. The applicant’s house was not materially different from the other houses in terms of size, materials or design and was in harmony with the estate as a whole. Nor was it the only two-storey house on the estate. While it was the only detached house on the estate, and the chances of setting a precedent were lessened by the greater difficulty that would be involved in adding an extra storey to a terraced property, the “thin end of the wedge” argument still carried weight in that context.
The restrictions, by impeding the proposed development, secured practical benefits of substantial advantage to the objectors by protecting their outlook and amenity. The restrictions made it possible to prevent alterations that would: (i) jeopardise the delicate balance of the estate in a way that would change the intimate relationship between the applicant’s property and its neighbours into an overbearing one; (ii) have a material impact on neighbouring properties and, to some extent, adversely affect their daylight; and (iii) materially change the physical form and character of that part of the estate which the residents’ association had been at pains to protect through the building scheme. The restrictions were a practical benefit of substantial advantage to the residents’ association in maintaining that character for the benefit of the estate as whole.
Those factors justified the refusal of the application. They were supported by a further factor, namely the adverse effect on the amenity of the neighbouring objectors that would be likely to arise from the proposed building works. While the primary consideration under section 84(1) was the effect of the ultimate use of the development, rather than the short-term disturbance that was inherent in any building project, it was relevant that the residents also had the benefit of a specific covenant against annoyance, nuisance, damage or disturbance and that the location of the applicant’s property was such as to present particular difficulties in carrying out the proposed works without considerable disturbance to neighbours: Shephard v Turner [2006] EWCA Civ 8; 2006] 2 EGLR 73 considered.
Justina Stewart (instructed by HSR Solicitors) appeared for the applicant; Josef Cannon (instructed by HPLP Solicitors) appeared for the respondent.
Sally Dobson, barrister
Click here to download the transcript of Re Hussain’s application
