Restrictive covenants – Discharge or modification – Section 84(1) of Law of Property Act 1925 – Property affected by restrictive covenant prohibiting use other than as offices – Whether applicants entitled to discharge of restriction – Objection received from owner of adjacent premises – Whether restriction continuing to fulfil original purpose – Whether securing practical benefits to objector by removing risk of complaints by residents about noise and smells from his restaurant – Application allowed
The applicants proposed to convert a property in Wantage, Oxfordshire, from offices into two self-contained flats. To that end, they applied, under section 84(1) of the Law of Property Act 1925, to discharge a restrictive covenant which prohibited the use of the property other than as offices. The restriction was set out in a 1979 conveyance by vendors who, at that time, had operated a public house in the adjacent property. The current owner of that property had since turned it into a Chinese restaurant, although that business had ceased trading in 2010. He lodged an objection to the discharge of the restriction.
The applicants contended that the restriction was obsolete so as to justify discharge pursuant to ground (a) in section 84(1). They pointed out that, since the restriction was imposed in 1979, there had been a significant change of emphasis in the use of buildings within the immediate vicinity and within the town centre in general, with many former commercial premises being converted into residential accommodation. They also relied on ground (aa), namely that the restriction impeded a reasonable user of the land and did not secure to those entitled to its benefit any practical benefits of substantial value or advantage; and ground (c), that the discharge of the restriction would not injure those entitled to its benefit.
The objector denied that the restriction was obsolete and contended that it conferred on him a valuable benefit in that office users were far less likely than residential occupiers to complain about noise and cooking smells from a restaurant.
Held: The application was allowed.
(1) When determining whether the restriction was obsolete, two questions had to be asked: first, whether there had been material changes in the property or the neighbourhood, or other material changes in circumstances, since 1979; and, second, whether the original purpose of the covenant could be achieved.
As to the first question, it was apparent from an inspection of the area, and from the planning evidence, that residential use had dramatically increased in recent years in accordance with prevailing planning policy. As to the second, the evidence indicated that the purpose of the restriction was to protect the public house business both from competition and from the risk of complaints by residents. However, the public house was long gone, and was never likely to be replaced. There was no realistic prospect of the objector’s premises being used as a pub again and a restriction intended to protect that use was therefore redundant.
Nor was there any present evidence that the objector’s premises might again be used as a restaurant. Accordingly, even if the purpose of the covenant were regarded as being to protect the benefited land, whatever its current use from the risk of objections from residential occupiers, that risk was not currently real. Even if the restaurant were to reopen, the levels of noise that might be expected from a small operation like that would be much less likely to lead to complaints than might have been the case under the previous user. On an inspection of the properties, and taking into account the location of windows and kitchens, the chance of cooking smells leading to complaints was low and the risk of occupiers being disturbed by noise from air-conditioning vents, or the transmission through them of sounds from within the premises, was non-existent.
For all those reasons, the restriction should now be deemed obsolete.
(2) As regards ground (aa), conversion of the applicants’ property to residential use was a reasonable user which was impeded by the restriction. Any increased risk of complaints from residential occupiers over an office user was so minimal as to constitute the smallest of practical benefits. While it was true that complaints might be received even where the level of disturbance being experienced was not so great as to be actionable, this was a town centre location and complaints from over-sensitive neighbours were unlikely. The risk was minimal and the practical benefit to the objector from avoiding that risk was not of substantial value or advantage to him.
(3) For similar reasons, the discharge of the restriction would not injure the objector and ground (c) was also made out.
Andrew Francis (instructed by direct access) appeared for the applicants; the objector appeared in person.
Sally Dobson, barrister
Click here to read a transcript of Waggott and another v Wai Ching Yip
