Restrictive covenants prevent scheme that attempts to squeeze too much in

When seeking to discharge or modify restrictive covenants, applicants should ensure that their development proposal is appropriate for the environment and that they own all of the land required. The Upper Tribunal Lands Chamber has dismissed an application under section 84(1) (aa) and (c) of the Law of Property Act 1925 in Medley v Mackenzie and others [2024] UKUT 112 (LC). The case concerned Forest House in Chigwell, Essex, and its surrounding land. An area of 15 acres of the grounds was sold in 1966 and led to the development of 12 properties known as High Elms, comprising two bungalows and a terrace of town houses with panoramic views of London. The 1966 conveyance included covenants for the benefit of the owners of Forest House restricting building and alterations to the external plan or elevation of any building without their consent. Medley owned 12 High Elms, a 1960s bungalow which he wanted to demolish and replace with two neo-Georgian houses – both considerably taller than the bungalow – joined at basement level, where there would be underground parking and swimming pools, with two storeys of detached accommodation above. He did not own all of the land critical to the development but was confident that he could establish title by adverse possession. 12 High Elms was also subject to restrictive covenants, imposed in 1967, for the benefit of the remainder of the estate and the owner of Forest House. The covenants prevented the erection of any wall, hedge, fence or structure around or within the land between the dwelling and any road or footpath and any use other than as a private dwelling. The tribunal acknowledged that a developer consent covenant was obsolete since the company no longer existed. The owners of properties in High Elms objected, relying on the 1967 covenants, as did the owner of Forest House and properties later developed on Forest House land, relying on the 1966 covenants. Medley’s proposed use of the land was reasonable and the covenants impeded such use. However, the covenants secured practical benefits to the objectors of substantial value or advantage by protecting the open aspect of High Elms and by preventing overdevelopment, as well as further inappropriate future development. The scale and positioning of the two houses were inappropriate. The covenants also protected a listed wall that was likely to suffer from serious damage or even collapse during the proposed works. The tribunal had no jurisdiction to modify the covenants. Even if it had, it would not have exercised its discretion until Medley had established ownership of all of the land. Louise Clark is a property law consultant and mediator