Development — Proposal to erect dwelling on curtilage of house — Previous conveyance of land imposing restrictive covenants — Neighbours objecting to proposed development as breach of covenants — Landowner applying to modify restrictions — Whether Lands Tribunal correct in deciding to modify restrictions — Appeal dismissed
The respondents proposed to erect a bungalow on the curtilage of a house in a small cul-de-sac (the application land). The appellant neighbours objected to the application and brought proceedings in the county court for an injunction to restrain the respondents from carrying out the development in breach of restrictive covenants that had been imposed in a 1952 conveyance of the application land.
The respondents accepted, and the court held, that the proposal breached the covenants. The action was stayed to enable the respondents to apply to the Lands Tribunal to modify the covenants, under section 84(1)(aa) of the Law of Property Act 1925, on the ground that their continued existence would impede the reasonable use of the land.
The tribunal concluded that, given the existence of planning permission, the proposed use of the application land was reasonable and ordered the modification of the restrictive covenants. However, it was accepted that the appellants were entitled to compensation for temporary losses in the form of noise, dust, disturbance and possible parking and access difficulties in the course of construction works.
The appellants appealed, contending, inter alia, that the tribunal had: (i) applied the wrong test in considering the possible effects of future developments; (ii) erred in law in disregarding the breach of the largely unbroken façade of the close to provide vehicular access to a replacement garage since that would not of itself breach the restrictions; and (iii) failed to evaluate the conflicting evidence regarding the extent of the disturbance arising from the construction works and had reached an unreasonable conclusion.
Held: The appeal was dismissed.
(1) The extent to which the proposal might open the way to further developments that would undermine the protection afforded by the covenants was a material issue. However, the questions that it raised were ones of fact, not law. They had been considered by the tribunal and it could not be said that its conclusion was irrational.
(2) The purpose of the restrictive covenants was to preserve the character and environment of the close. The protection of the unbroken façade was not part of the contractual scheme of which the restrictions formed part. It was, at most, an incidental and uncovenanted benefit of the other contractual objectives that were being achieved and was a factor to which the tribunal was entitled to give less weight in its overall consideration of the proposed use under section 84 of the 1925 Act.
(3) Although the conflicting evidence on the extent of the construction works had not been analysed, there was nothing to indicate that the tribunal, which included an experienced surveyor, had not fully understood the issue or that it had erred in law. It had to be borne in mind that the purpose of section 84(1)(aa) was to facilitate the development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the subject area. Thus, the primary consideration was the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance inherent in any ordinary construction project.
Guy Featherstonhaugh QC and Emily Windsor (instructed by Battens, of Yeovil) appeared for the appellants; George Newsom (instructed by Stones, of Exeter) appeared for the respondents.
Eileen O’Grady, barrister
