An application to discharge a “one house” restriction has failed in Sutton v Baines and another [2022] UKUT 342 (LC); [2022] PLSCS 208, a decision that highlights the importance of framing an application under section 84 of the Landlord and Tenant Act 1925 not to limit the remedy sought and of securing planning permission for a particular development.
The applicant owned a property in Mackworth, Derby, which had a large side garden on which she wished to build a second house. The restriction, imposed in a 1970 conveyance of the freehold interest in the property, provided that it was not to be used for any purpose other than as a single private dwelling house. The objectors, neighbours of the applicant, whose garden adjoined the application land, objected because of the effect the discharge of the restriction would have on their privacy in both their garden and the rear of their house.
The application to discharge the restriction was made under section 84(1)(aa) of the 1925 Act. There was no application for its modification. Ground (aa) is satisfied where the restriction impedes some reasonable use of the land for public or private purposes, and the tribunal is satisfied that it secures “no practical benefits of substantial value or advantage” to those with its benefit, or it is contrary to the public interest, and that money will be adequate compensation for any loss or disadvantage suffered from its discharge or modification.
In determining such an application, the tribunal must take into account the statutory development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area, as well as the period and the context in which the restriction was imposed and any other material circumstances.
At the time of the hearing of the application, the applicant did not have planning permission for any development of the application land. An outline permission obtained in 2014 had lapsed and an alternative development was proposed with its front elevation in line with that of the applicant’s property. Valuers called by the parties agreed the value of the objectors’ property at £315,000, and the objectors’ valuer considered that their property could be diminished in value by 25% or more depending on the type of development constructed.
The tribunal – adopting the questions posed in Re Bass Ltd’s Application [1973] 26 P&CR 156 – considered that in its widest sense the erection of a house in a residential area was a reasonable use which the restriction clearly impeded, and that it was a practical benefit to the objectors to be able to prevent a second house being built nearer to their property. Was that practical benefit of substantial value or advantage?
Since the applicant had sought a blanket discharge of the restriction and not its modification, it was difficult to assess the effect on the objectors’ property where there was no current planning permission. By discharging the restriction, the tribunal would leave the objectors open to whatever planning permission the applicant, or anyone to whom she sold the land, could obtain. The applicant had not proved substantiality and so the application had to be refused.
Louise Clark is a property law consultant and mediator
