Covenant modified by Tribunal to allow office redevelopment in accordance with planning permission

In Beeches Capital v. Alison Hunt and others (as personal representatives of the Estate of Margaret Adeline Hunt) [2024] UKUT 0414 (LC), an application for the modification of a restrictive covenant to allow for the demolition of redundant agricultural buildings and the erection of a modern office unit succeeded under ground (aa) of section 84(1) of the Law of Property Act 1925 (reasonable user). The modification was limited to permit the redevelopment scheme for which the applicant had planning permission and compensation was awarded to the objectors.

Facts

An application was made to discharge or modify a restriction imposed by a conveyance dated 4 November 1959 which prevented the applicant from implementing a planning permission to demolish former agricultural buildings and redevelop them as a rural business and enterprise hub.  

The application land, Beeches Farm, was located on the outskirts of Tring on the north side of the B488 Icknield Way. The original objector owned adjoining land with the benefit of the restriction. She died on May 2024 and her objection was continued by the personal representatives of her estate.

The relevant restriction in the conveyance was as follows:

“3. FOR the benefit and protection of the adjoining and neighbouring land now held by the Vendor and edged green on the plan attached hereto and so as to bind the land hereby conveyed into whosesoever hands the same may come the Purchasers jointly and severally covenant with the Vendor that the Purchasers and those deriving title under them will at all times here after observe and perform the following conditions –

(I) … (b) Not to erect any building or structure upon the land coloured blue on the said plan other than (i) buildings designed and to be used for agricultural purposes and being of a height of not more than seven feet to the eaves and twelve feet to the ridge….”

On 3 May 1973 planning consent was issued for the demolition of existing buildings and erection of a bungalow, two large hen feeding houses (known as shed A and shed B) and two feed hoppers. The ridge height of the sheds was 5m and it was agreed that their height exceeded that permitted by the restriction.

In 1967 Mr and Mrs Hunt purchased a house known as Drayton Holloway, which had the benefit of the restriction. In 1991 they purchased a 7.25 acre field and strip of woodland between Drayton Holloway and Beeches Farm. Other adjoining owners did not object to the application.

The planning history of non-agricultural use and planning consent of the site included planning permission for the demolition of redundant buildings, external works to sheds A, B and D to provide replacement roofs, in black finish with rooflights to the ridge and full height windows between sections of black stained larch cladding (“the conversion scheme”) and planning permission for a scheme of demolition and redevelopment to form a rural enterprise and business hub (“the redevelopment scheme”).

The Issues

The Applicant made the application to discharge or modify the restrictive covenant on ground (a) (that the restriction ought to be deemed obsolete), ground (aa) (that the restriction would impede some reasonable user of the land and that the restriction secures no practical benefits of substantial benefits or advantage and if so, whether money will be adequate compensation) and ground (c) (no injury to the person entitled to the benefit of the restriction).

It was agreed that the restriction did not prevent the conversion scheme but it did prevent the redevelopment scheme and so it was necessary to compare the impact of each scheme.

The Decision 

The Tribunal found that the application failed on ground (a). The restriction was not obsolete because the Tribunal did not consider that the character of the buildings on the application land had changed from that envisaged by the restriction. Whilst the use might no longer be agricultural, the purpose of the covenant was to control appearance and not use.The restriction continued to achieve the purpose for which it was imposed in protecting the adjoining and neighbouring land.

Under ground (aa), it was agreed between the parties that the redevelopment scheme was a reasonable use of the application land. It was therefore necessary to consider whether the restriction secured practical benefits to the objector. The Tribunal found that the visibility and impact of the current buildings was mitigated largely by a closed board security fence. Whilst the restriction did not secure retention of the fence, it did constrain the type of building that would be visible in its absence. In that regard it was considered to be a practical benefit to the objectors, albeit not a substantial one. The approved soft landscaping drawings provided for a total of 13 trees in the space between the buildings and the field boundary which in 10-15 years would screen the visual impact of the new buildings when viewed from the field. It was also noted that the objectors had attempted their own planting scheme in mitigation.Their trees died but hedge plants had survived and would provide a useful screen at lower level along the boundary. The Tribunal did not consider it appropriate to discharge the restriction but was willing to grant modification for a carefully specified scheme with 17 conditions attached. The Tribunal was satisfied that would neither preclude nor set a precedent for any future applications on the land or parcels of land at Beeches Farm which are the subject of the restriction.

The Tribunal then considered whether the loss of amenity was capable of being compensated in money and determined that the sum of £15,000 would be adequate compensation for the loss of amenity the objectors would suffer until the tree planting reached maturity. This was calculated as a little over £2,000 per acre for marginal loss of amenity to them in their enjoyment of the field.

The Tribunal therefore ordered that the restriction should be modified under ground (aa), to permit the redevelopment scheme, because the restriction did not secure to the objectors any practical benefits of substantial advantage and compensation could be awarded for the marginal loss in amenity that the objectors would suffer as a result.  

Ground (c) was not made out due to the injury that would result from the proposed modification.

Originally published on Property Law UK.