Restrictive covenants – Discharge or modification – Section 84(1)(aa) of Law of Property Act 1925 – Application to discharge or modify restriction to permit development of four dwellings – Objector’s nearby land identified in development framework as potential housing land – Whether restriction securing practical benefit of substantial value or advantage to objector on ground that occupants of new houses might object to future planning application in respect of objector’s land – Application allowed
The applicants planned to carry out residential development on their freehold land in Whickham, Newcastle upon Tyne, pursuant to a series of planning and other consents obtained between 2008 and 2011. The proposed development involved the construction of a detached house with garage on part of the land, with partial demolition and rebuilding of a vacant storage building to provide access to that dwelling, plus the conversion of former agricultural buildings to provide three further dwellings. That development was prohibited by a restrictive covenant in a 1980 conveyance of the property, which restricted its use to agricultural use or use as a riding school and livery stable. The applicants applied to the Upper Tribunal, under section 84(1) of the Law of Property Act 1925, to discharge or modify the covenant to allow the development to proceed.
An objection to the application was received from a developer that owned a large area of nearby farmland with the benefit of the covenant. The objector hoped to carry out a residential development on part of that land, with the remainder to be dedicated as a country park. Although the objector’s land was currently designated as green belt, it was identified in the local planning authority’s strategic land review as potential housing land capable of supporting 123 dwellings and the objector anticipated being able to make a planning application for residential development in 2015. It contended that the residential development of the applicants’ land would result in approximately 10 additional residents who might potentially object to its future planning application.
An issue arose as to whether the restriction should be discharged on the ground in section 84(1)(aa) of the 1925 Act, namely that it impeded a reasonable use of the land and did not secure to the objector any practical benefits of substantial value or advantage. The objector contended that the restriction did secure a practical benefit to it, since the residential development of the applicants’ land would result in approximately 10 additional residents who might potentially object to its future planning application.
Held: The application was allowed.
The restriction did not secure to the objector any practical benefits of substantial value or advantage. The objector’s concern was that its delicate ongoing negotiations with the local planning authority might be adversely affected if one of the proposed houses on the application site were purchased by an individual who objected strongly to the principle of development on green belt land. That concern was not justified. Although a particularly determined and articulate objector might potentially influence the attitude of a local planning authority to the development of a particular site, the authority’s local development framework identified as suitable for housing several sites that were presently in the green belt, including the objector’s site. Any person who had a strong objection to residential development in the green belt would make enquiries regarding the local planning authority’s attitude to such development in the vicinity of the applicants’ land before agreeing to purchase a house on that land. Having made such enquiries, such a person would turn his attentions elsewhere and focus his search on houses on other sites in or near the green belt that were likely to remain undisturbed by residential development.
Nor would four additional houses on the applicants’ land lead to an increase in the section 106 obligations that the objector would be required to accept in order to secure residential planning permission on its land. The increase in population resulting from the proposed development on the applicants’ land would be negligible in applying thresholds for developer contributions in respect of the objector’s property.
The only practical benefit of the restrictive covenant to the objector was that it enabled the objector to demand a monetary payment for allowing a profitable development of the applicants’ land to go ahead. That was not a benefit contemplated by section 84(1)(aa): Stockport Borough Council v Alwiyah Developments (1986) 52 P&CR 278 applied. In the absence of any other practical benefit to the objector resulting from the restriction, the applicants had established ground (aa) and the modification should be discharged or modified accordingly.
Since the restriction was of no practical benefit to the objector, no compensation was payable under subsection (i) to make up for any loss or disadvantage to the objector as a result of the discharge or modification. The sum of £3,000 was awarded as compensation under subsection (ii) to reflect the effect that the restriction had had in reducing the consideration paid for the applicants’ land when it was sold in 1980.
David Marshall (instructed by George F White LLP, surveyors, of Wolsingham) appeared for the applicants; Stuart Grimes, land manager, of Persimmon Homes Ltd appeared for the objector.
Sally Dobson, barrister