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Expert Insights

30 March 2021

Looking beyond the benefitted land: confirmation that an objector’s wider property may be considered in applications to discharge/modify restrictive covenants

Re Copleston's Application [2021] UKUT 18 (LC)

Summary

The Tribunal rejected an application to discharge or modify restrictions under s84(1)(a) and s84(1)(aa) Law of Property Act. It found that that the restrictions were not rendered obsolete through the other developments permitted in the neighbourhood. In considering whether the restriction secured practical benefits of substantial advantage, the Tribunal concluded that it could take account of the entirety of the objectors’ property, rather than just the area which specifically had the benefit of the restrictions.

Facts

The applicants obtained planning permission to construct a new detached dwelling house within the garden of their freehold semi-detached dwelling, Gorsebrook.

The applicants were prevented from developing the new house due to a restrictive covenant covering most of their land, dated 27 April 1960. The covenant prohibited the erection of any building ‘other than a garden shed summerhouse conservatory greenhouse or private garage to accommodate two cars… for use in connection with the Purchaser’s private house’. There was a second restrictive covenant, prohibiting the use of the land for anything other than use as a private garden or the site of a garage for the owner. 

The applicants applied to the Tribunal to discharge or modify the two restrictive covenants, on the basis of section 84(1)(a) and (aa) of the Law and Property Act 1925.

There most relevant objections from neighbours came from the Harrises, owners of The Old Bothy. The majority of their house did not have the benefit of the restrictions because they applied to only part of their property - mainly the garden and grounds. 

Design/location of the proposed development

The proposed new house was due to sit at a higher elevation than the objectors’ properties on the opposite side of a private road (Chilston Lane), with some rooms facing the objectors’ properties. The development did not include a garage but would have parking bays for 2 cars at the front of the property, on land not subject to the restrictions. The current tree and hedge screen at the front of the application land, between Chilston Lane and the proposed house, was likely to be reduced by the proposed development – although new planting was planned between the parking bay and house.

Issues

  1. Whether the restrictions should be discharged/modified under s.84(1)(a) LPA 1925, i.e. on the basis that changes in the character of the neighborhood had rendered the restrictions obsolete.
  2. Whether the restrictions should be discharged/modified under s84(1)(aa) LPA 1925 (“ground (aa)”), i.e. on the basis that the restrictions impeded a reasonable user of land. (Under s84(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.)

Decision

Ground (a)

The Tribunal agreed with the applicants that the “neighbourhood” should include all the properties that featured along Chilston Lane, rather than just the five dwellings situated at the lower end of the lane near the application land. In 1960, Chilston Lane had only seven single dwellings on relatively large plots. Since the imposition of the restrictions in 1960, there had been 22 developments built along Chilston Lane, including a block of 14 flats.  Despite these changes in the character of at least part of this neighbourhood, with a significant increase in the number of dwellings, the Tribunal felt it had retained its essential residential nature.

The Tribunal also rejected the argument that the various developments had had any pronounced adverse impact on the amenity of the objectors’ properties. Even the two most modern houses on the lane had been ‘sensitively designed’ so as not to impact the more historic buildings at the end of the lane.

The Tribunal ultimately ruled that the restrictions were not rendered obsolete through the changes in the neighbourhood, because they still served to protect the amenity of the benefitted land, in particular by prohibiting any residential development too close to one of the boundaries.

Ground (aa)

The Tribunal agreed with the applicants that the proposed development would be a reasonable use of the application land, as required by ground (aa).

A key point for the Tribunal was to establish whether the substantial practical benefits secured to the Harrises through the restrictions could be considered in reference to the entirety of their property (including the house), or only in relation to the outside area which specifically had the benefit of the restrictions. This was important because the Tribunal felt that the practical benefits to the benefited land were not substantial because of its greater distance from the proposed development.

The Tribunal concluded that it should consider the effect of the proposed use on the Harris’ whole property, including the house. This conclusion was based on the foilowing:

  • The Harris’ land was purchased with the benefitted land accounting for more than half of the site area.
  • The Harrises use the land as a single entity, with no meaningful division between benefitted and non-benefitted land.
  • In general, the practical benefits that can be secured by a restriction should be construed widely.
  • The wording of s.84(1A) LPA 1925 is not to be limited to advantages or benefits for the benefitted land only; it extends to any substantial practical benefit to the persons entitled to that benefit.

With the whole of The Old Bothy considered (with the most affected rooms being the drawing room and bedroom 2, together with some other living and sleeping areas set further back from Chilston Lane), the Tribunal found that the restrictions secured practical benefits of substantial advantage including protecting the Harris’ outlook and preventing overlooking.  The disruption and inconvenience during the construction works was also referred to. The Tribunal was also concerned that the promised landscaping screen was likely to be under an immediate and sustained threat because of its proximity to the front elevation of the proposed house which would cause overshadowing. 

The Tribunal was therefore not satisfied that the applicants had satisfied ground (aa) either. The Tribunal’s decision to take account of the practical benefits enjoyed by the Harrises as owners of land to which the benefit of the restrictions did not attach was significant; it noted that the application would have succeeded on ground (aa) if it had not been permitted to have regard to those additional practical benefits.


For more information, please contact Emma Humphreys or your usual Charles Russell Speechlys contact in our Real Estate Disputes team.

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