Where there is a serious risk that modifying a restrictive covenant to permit a development will set a precedent for changes which will undermine the protection afforded by the covenants, avoiding that risk is a practical benefit capable of being of substantial value or advantage to objectors, the Upper Tribunal (Lands Chamber) has decided in Cross v Coach House Mews (Highbury) Ltd [2022] UKUT 20 (LC).
The case concerned a three-storey mews house owned by the applicants, Nicholas and Hannah Cross, on the Coach House Mews Estate, a small development of 18 similar houses constructed in 1991. In July 2020, the applicants obtained planning consent from the London Borough of Islington for the construction of a small ground-floor extension of 7.4 sq m adjacent to the flank wall of the property which would enable them to reconfigure it to accommodate their expanding family.
The owners of properties on the estate and the respondent Coach House Mews (Highbury) Ltd, a management company owned by them, benefited from a covenant which prevented the erection of or material alteration or addition to the external appearance of any buildings, walls, fences or other structures.
The applicants sought permission from the tribunal to modify the restrictions on the grounds contained in section 84(1) of the Law of Property Act 1925: (aa) that the continued existence of the restriction impedes some reasonable use of the land and the tribunal is satisfied that it does not secure any practical benefits or advantages of substantial value or advantage to those entitled to its benefit; or (c) that the proposed discharge or modification will not injure those entitled to the benefit of the restriction.
Objections to the application were to the appearance of the proposed extension, which would be visible from other properties and a departure from the visual integrity of the estate frontages. There were also a number of objections on the basis that the restrictive covenant was intended to retain and maintain the design, aesthetic appearance and character of the estate, and that to allow the modification would lead to other owners seeking permission to extend their properties, which would not be in the interests of most of the owners on the estate.
The judge did not share the planning officer’s view that the extension was sympathetic to the design of the original building, the terrace as a whole or the setting of the adjoining conservation area. As regards the “thin end of the wedge” argument, it was necessary to determine the application on its own particular facts and merits, but where there is a serious risk that permitting the development will undermine the protection afforded by the covenants, avoiding that risk is a practical benefit capable of being of substantial value or advantage to the objectors: Martin v Lipton [2020] UKUT 8 (LC).
Dismissing the application, the judge concluded that modification of the covenant to allow the extension would encourage others to seek to extend their properties, and that there was a risk of a significant loss of amenity. The covenant in its existing form conferred a practical benefit of substantial advantage to the objectors.
Louise Clark is a property law consultant and mediator
