Re Ben Lynch  UKUT 488 (LC)
The applicant made an application under s.84 LPA 1925 to modify a restriction which prohibited more than one house per plot. The application was brought on grounds (a) and (aa).
Although there had been some breaches of the covenant elsewhere within the estate, the Tribunal rejected the argument that the covenant was obsolete since there had been no significant overall changes to the character of the neighbourhood. However, the applicant succeeded in satisfying ground (aa) on the basis that the practical benefits of the covenant to the objectors were not of substantial value or advantage and could be adequately compensated by payments of £15,000 and £25,000.
The applicant had obtained planning permission to build a detached two-storey house on his land and sought to modify a restrictive covenant imposed in a 1911 conveyance which prohibited more than one house per plot. The application was based on grounds (a) and (aa) of s.84 LPA 1925. A number of neighbouring owners objected to the application after being served with notice of the application. The parties agreed that the applicant’s open land was restricted by the covenant because it had historically been part of a larger plot and the proposed development would therefore involve building more than one house on what was one of the original lots.
The applicant’s land had previously had a dilapidated single garage on it and that planning permission had previously been obtained for a smaller house than proposed by the applicant. The planning permission obtained by the applicant had various conditions attached, restricting openings being constructed on certain sides of the house and requiring obscured glass in some of the first floor windows. It also provided that there should be no outbuildings or extension to the house.
(1) Whether the Tribunal should exercise its discretion to modify the restriction under s84(1)(a) LPA 1925, i.e. on the basis that it ought to be deemed obsolete.
(2) Whether the Tribunal should exercise its discretion to modify the restriction under s.84(1)(aa) LPA 1925, i.e. on the basis that it impeded a reasonable user of land. (Under s84(1A), modification is permitted where the Tribunal is satisfied that: (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.)
Ground (a) – obsolescence
The Tribunal accepted that the original purpose of the covenant was to restrict the use of the land to houses and prevent development at too great a density for general amenity. It noted that there had been breaches of the restriction through some building on sub-divided plots, but felt that those changes did not render the covenant obsolete.
In the Tribunal’s view, there had been no significant overall changes to the character of the neighbourhood nor other material circumstances. The Tribunal pointed out that the onus was on the applicant to show the obsolescence of the covenant but felt that the covenant still prevented rows of houses, blocks of apartments or other over-development from occurring and the application therefore failed on this ground.
Ground (aa) – substantial practical benefits?
It was common ground that the proposed user was reasonable and impeded by the restriction. The proposed user was clearly not contrary to the public interest.
The Tribunal therefore considered whether impeding the proposed user secured practical benefits to the objectors. The Tribunal felt that there was nothing in the objectors’ evidence to support the argument that the proposed development would be out of keeping with the area. However, it agreed that the ability to resist having a house “shoehorned” into adjacent land is a practical benefit. It also accepted as practical benefits the ability to resist a house being erected which could be seen from an objector’s patio and which would probably block some light to his garden.
In considering whether these practical benefits were of substantial value or advantage, the Tribunal took account of whether money would be adequate compensation. In the Tribunal’s judgment, there would be a small effect on the value of the immediate neighbours’ houses – probably around 1.5% and 2.5%, amounting to £15,000 and £25,000. (The Tribunal was not persuaded that there would be any effect on the houses of any of the other objectors whose properties were not adjoining the application land.) Considering the level of this effect on value of the two adjoining properties (as a percentage of their capital values), the Tribunal concluded that the benefits secured by the covenant were not of substantial value or advantage and was satisfied that money would be adequate compensation for modification of the covenant.
The Tribunal noted that the policy behind ground (aa) is facilitating the development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the area. With regard to the objectors’ “thin end of the wedge” argument, the Tribunal noted that each application would be considered on its own merits and that there was no evidence before it that there were other open plots that could be developed in the same way. However, it commented that its decision should not be considered as a precedent for other plots on the estate.
The modification of the covenant was permitted to allow development of the house which had received planning permission subject to payment of compensation to the immediate neighbours in the sums determined by the Tribunal.
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