Restrictive covenant – Application for modification – Section 84(1)(aa) of Law of Property Act 1925 – Applicants purchasing plot with planning permission for dwelling – Restrictive covenant in favour of neighbours prohibiting parking on or obstructing turning area – Dwelling and garage as built encroaching on turning area – Whether appropriate to modify restriction to reduce turning area accordingly – Application dismissed
In 2004, the applicants purchased building land that had previously formed part of the garden of the vendors’ adjoining residential property. The plot had outline planning permission for the construction of a detached two-storey dwelling. A planning condition required a minimum of two parking spaces to be provided within the curtilage of the dwelling, together with turning facilities so that vehicles would not have to reverse out of the property.
The transfer from the vendors required the applicants, at their own expense, to construct a turning area, as marked on a plan, partly on the plot and partly on the vendors’ property. The vendors reserved a right of way over that area and a restrictive covenant in the transfer prohibited parking on or otherwise obstructing it. The vendors’ subsequently sold their property, after having negotiated a deed of variation of the restrictive covenant so that the purchasers could park on the turning area outside their garage.
Meanwhile, the applicants obtained full planning permission on the basis of an approved landscape plan that delineated a reduced turning area. The finally approved position of the house, as constructed, was slightly further forward than had originally been envisaged, and a double garage was built in part over the area subject to the restrictive covenant. As a result, it was not possible, without encroaching on the covenanted turning area, to park more than one car outside, or to comply with the condition in the planning permission.
The applicants applied, under section 84(1) of the Law of Property Act 1925, to modify the restrictive covenant to reduce the turning area by approximately 75%. They relied primarily on the ground in section 84(1)(aa), namely that the restriction impeded a reasonable user of their land and did not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage. The new owners of the adjoining property objected to that application, contending that the reduced turning area was not sufficient for their needs and that it devalued their property.
Held: The application was dismissed.
The restriction impeded the reasonable user of the applicants’ land since, if they abided by its terms, they would have only a limited parking area. However, that resulted from their own actions in building their house and garage in a different position and layout from that proposed in the outline planning permission obtained by the vendors. That repositioning had severely restricted the area available for parking to the extent that it was impossible to comply with the planning condition without breaching the restrictive covenant. The applicants had chosen to ignore the restriction. Their parking arrangements hampered the objectors’ manoeuvring capabilities. If the objectors parked a car in front of their garage, as they were entitled to do following the agreed deed of variation, it was almost impossible to effect a three-point turn while remaining within the restricted turning area proposed by the applicants. Likewise, if entering the applicants’ property in a forward direction, it was almost impossible to turn in the proposed area. The ability to turn safely and easily, which would have been the purpose of the restriction, was a practical benefit of substantial advantage and, in monetary terms, had value to the objectors. The applicants’ disregard of the restrictions had caused the objectors considerable inconvenience and the situation that prevailed would have a material effect on the open market value of their property. Consequently, the ground in section 84(1)(aa) of the 1925 Act had not been made out.
The applicants’ intransigence had put them in a difficult position, with potentially serious consequences in planning enforcement terms. It ought to be possible to negotiate a realistic settlement by appointing an independent joint surveyor, with a compromise involving a larger turning area than the applicants sought, but smaller than the original restricted area, so that they could comply with the terms of the relevant planning conditions.
The applicants appeared in person; Robert Cox, of Oldham Marsh Page Flavell, of Melton Mowbray, appeared for the objectors.
Sally Dobson, barrister
