Restrictive covenants: restriction not intended to secure structural protection

Objection to the discharge or modification of a restriction based on fears of structural damage can, in appropriate circumstances, be addressed by the indemnity provisions in the Party Wall etc. Act 1996. The Upper Tribunal (Lands Chamber) has granted an application to modify a restrictive covenant under section 84 of the Law of Property Act 1925 in Doherty and another v Paskhin [2023] UKUT 196 (LC). The case concerned the applicants’ proposals for works to their semi-detached property at 4 Kerfield Place, Camberwell, south London, to provide a single storey rear extension and loft conversion. The property formed part of an estate developed in the 1980s. A restriction in a 1984 transfer – for the benefit of the local authority and purchasers of lots within the scheme – prevented any alteration to the exterior appearance of the property and the construction of additional buildings. The council granted certificates of lawfulness for the proposed works and provided a deed of release from the restriction. The only objection to the proposals came from the applicants’ adjoining neighbour whose sole concern was the risk of structural damage to his property during the works. A party wall award under the 1996 Act was issued in September 2022 and not challenged. The applicants sought relief under section 84 of the 1925 Act. Grounds (a) and (b) failed. While changes had been made to properties on the estate, they were not sufficient or so widespread that the restriction ought to be deemed obsolete and in view of the objection, those entitled to the benefit of the restriction had not agreed to its discharge or modification. As for (aa), the restriction impeded implementation of the proposals and the certificates of lawful use and deed of release were evidence that they were reasonable. The restriction did not secure practical benefits of substantial value or advantage to the objector. The proposals would have no impact on light to his property and there would be no new loss of privacy. The value of his property would be unaffected by the works and modification of the restriction would not release any pent-up demand – the “thin end of the wedge” argument. There was no evidence that the restriction was intended to secure the practical benefit of structural protection to the objector and the provisions of the 1996 Act would indemnify him against any costs or loss due to structural damage. Ground (aa) was made out and (c) was also satisfied because the proposed modification would not injure those with the benefit of the restriction. Louise Clark is a property law consultant and mediator