Section 84(1) of the Law of Property Act 1925 enables a tribunal to modify or discharge restrictive covenants if certain conditions are satisfied.
In Lamble v Buttaci [2018] UKUT 175 (LC), the applicant wanted to demolish a house in order to construct a bigger residence. He also wanted to build a large garage and a separate gym. But his land was burdened by restrictive covenants requiring him to obtain his neighbours’ consent before doing so.
The applicant’s neighbours refused to consent to the proposals. The applicant could have applied for a declaration that they were being unreasonable, because their consent was not to be unreasonably withheld. But he asked the tribunal to modify the covenants instead. He argued that the proposed use of his land was reasonable, that the covenants impeded such use, and that his neighbours gained no practical benefit of substantial value or advantage from the covenants: ground (aa).
The applicant’s neighbours tried to persuade the tribunal that the covenants would not impede development if their refusal was unreasonable. But the tribunal ruled that the covenants did impede the development, whether their refusal was reasonable or not. Where the unreasonableness of a refusal of consent is clear-cut, an applicant might feel confident that a qualified covenant, which would otherwise restrict an intended use of land, need no longer be observed. But such cases are rare. In ordinary speech, to impede a use means to delay or prevent it – and nothing in section 84(1)(aa) requires an impediment to be insuperable before the tribunal’s jurisdiction is engaged.
The tribunal also accepted that the benefit of a covenant is capable of being secured to a person having the benefit of it by reference to a wider area than that to which the benefit is strictly annexed. And, as a result, the applicant’s neighbours were entitled to object to the effect that the gym would have on their house and garden, even though the land that benefitted from the covenant specifically restraining its construction adjoined their house and garden and fell within a separate title, which they also owned.
The tribunal also had to consider whether the proposed uses were reasonable. The authorities suggest that a proposed use is more likely to be reasonable if it has planning permission. And, in this case, the applicant had obtained planning permission for his new house, and the garage and gym were authorised under permitted development rights. But something appeared to have gone wrong in the planning process. Although it was a condition of the permission for the new house that implementation of the planning consent should be accompanied by the removal of the permitted development rights, the applicant would be able to construct all three buildings if the garage and gym were built first. However, the property was situated in the green belt and previous planning decisions suggested that the planning authority had not intended such an outcome.
Consequently, the tribunal attributed less weight to the planning permission. And, in view of the importance of protecting the green belt, the tribunal was satisfied that the construction of all three buildings would not be a reasonable use of the applicant’s land. However, the tribunal did accept that it would be reasonable to construct a new house and garage and was prepared to modify the covenants to enable the applicant to do so, on condition that he paid his neighbours £50,000 to compensate them for the diminution in the value of their land.
Allyson Colby is a property law consultant
