Crossing the line? A restrictive covenant upheld to protect a neighbour’s outlook

Creebray Limited v Deninson [2020] UKUT 262 (LC)

Summary

The Tribunal refused to discharge or modify a restrictive covenant which prevented a house being built in front of a certain building line. The restrictive covenant was designed to ensure a leafy outlook without sight of buildings for the neighbouring objectors, which the Tribunal found to be a practical benefit of substantial advantage to them.      

Facts

The applicant developer wished to build a house over three levels and a triple garage with a gym above it. The neighbouring objectors’ property benefitted from a restrictive covenant to which the applicant’s land was subject, which stated as follows: 

“no buildings shall be placed near to the road in front of the said land than is indicated by the building line shown on the said plan except garden sheds or garage or greenhouse not more than fifteen feet high…”

The applicant sought to discharge or modify this restriction on the basis of section 84(1)(aa) of the Law of Property Act 1925.

The objectors argued that the building line referred to in the covenant protected their privacy and outlook. However, the applicant pointed out the screening provided by a beech hedge on its land – running along the boundary between the parties’ properties at a height of around seven metres high nearest to the buildings. The objectors argued that, even with the hedge, the new building would overlook their land, diminish their outlook, significantly impact the value of their property, and adversely affect their “sense of security” and privacy.

The conditions of the planning permission for the house included a requirement for obscure glazing of the first floor windows in order to address concerns over harm to the privacy or amenity of neighbouring residents as a result of overlooking. Through expert evidence, the applicant submitted that the planning officer’s views were that the proposed development would be in keeping with the character of the neighbourhood and that the effect of the development on the objectors’ land had been “robustly considered”. The applicant contended that the proposed development would have little to no effect on the objectors’ property.

Issues

The application to discharge or modify this restriction sought to rely on section 84(1)(aa) of the Law of Property Act 1925, i.e. on the basis that it impeded a reasonable user of land. (Under s 84(1A), modification is permitted where (a) the person who is entitled to the benefit of the restriction does not secure any practical benefits of substantial value or advantage from it; or (b) that the restriction is contrary to the public interest. For the purposes of section 84(1A), consideration also has to be given as to whether money is adequate compensation for the loss or disadvantage to the beneficiary as a result of the modification of the restriction.)

Accordingly, the Tribunal had to decide the following:

• whether the proposed use of the applicant’s land was reasonable;
• whether the covenant impeded that use;
• whether the impeding of the proposed use secured practical benefits to the objectors;
• whether, if so, those benefits were of substantial value or advantage;
• if they were not, whether money would be adequate compensation.

Decision

The Tribunal noted that the building of a house was obviously a reasonable use of land, in spite of the overbearing nature of the proposed development here due to its size. It was not in dispute that the building of the house would be in breach of the covenant; accordingly, the covenant impeded that reasonable use of the land.

The Tribunal then considered the key issues of the view from the objectors’ land and the potential loss of amenity and privacy. During the Tribunal’s site visit, it was noted that the situation very much depended on the current state of the hedge between the properties. While the hedge in the summer (in its present state) would substantially mitigate the problem by obscuring the new house, the Tribunal did not accept that it would offer adequate screening in winter. The Tribunal felt that measures such as the obscured glass on the first floor of the new house would be insufficient to make up for the lack of hedge screening in winter, or if the hedge deteriorates or is removed.

The Tribunal noted that the hedge is on the applicant’s land and not within the control of the objectors. In its view, relying upon the hedge as the only real protection for the objectors from the visual intrusion of the proposed three-storey building was too precarious. In response to the applicant’s offer of a positive obligation to keep the hedge in place, the Tribunal expressed concern that positive obligations could not reliably be made to run with the land, and that such an obligation might be very difficult to meet if the hedge partially died or a replacement hedge failed to take root.

The Tribunal felt that the restrictive covenant was designed to ensure a leafy outlook to the south without sight of buildings. There was no need for the covenant to restrict the size of the houses on the plots as it placed a tight restriction on their location. The discharge or modification of the covenant to allow the proposed new house on the applicant’s land would completely spoil that design, as well as the layout and rural aspect purchased by the objectors.

The Tribunal concluded that the restrictive covenant therefore secured a practical benefit of substantial advantage to the objectors. The character of the objectors’ property would be changed if the view in front of the house included the building next door (in front of the building line), regardless of size but especially in the case of the tall and bulky building proposed here.  

Consequently, the Tribunal did not need to consider the fifth issue and the application failed.

This article was written by Emma Humphreys. For more information, please contact Emma on +44 (0)20 7203 5326 or at emma.humphreys@crsblaw.com.