The Upper Tribunal (UT) has granted a landowner’s application to modify a restrictive covenant to allow a small bungalow to be constructed in place of a workshop.
The landowner had sold land near his house to a local developer in 1999. The developer built three houses on the land, and the landowner agreed to be bound by a covenant preventing him from using the land he had retained for any purpose other than as a single private dwelling house with a garden and garage. He moved away in 2019 and four years later sold his house, but retained the land on which the workshop was built.
He obtained planning permission to demolish the workshop and replace it with a small bungalow, but could not implement the permission without breaching the covenant. He therefore applied to the UT under Section 84 of the Law of Property Act 1925 for modification of the covenant. The owners of the three houses built by the developer objected to the application.
Considering whether it had jurisdiction to modify the covenant, the UT found that the proposed use of the land was reasonable. It was common ground that the covenant impeded that use. The UT therefore turned to whether the restriction secured practical benefits to the objectors, and whether those benefits were of substantial value or advantage.
The UT accepted that the timeframe for construction would be relatively short. The covenant was not intended to provide protection from temporary disturbance and inconvenience arising as a consequence of development. The UT took the view that although the restriction benefited the objectors in that it prevented disruption, that benefit could not be characterised as being of substantial value or advantage.
In the UT’s view, the quietness of the objectors’ houses was unlikely to be affected by the bungalow, and they were protected by existing covenants not to cause a nuisance or annoyance and not to park in or obstruct the road serving the houses. The restriction therefore did not secure benefits of substantial advantage relating to the character of the houses.
The UT also found that there would be no significant loss of privacy, except in respect of one room of the nearest house to the bungalow, and that modifying the covenant would not make it more likely that a subsequent application would be successful.
The UT did not regard the practical benefits conferred by the covenant as being of substantial value or advantage, either individually or cumulatively. It therefore had jurisdiction to modify the covenant under Section 84(1)(aa) of the Act. Noting that the covenant was not particularly recent, it exercised its discretion to do so. It awarded compensation of £10,000, £5,000 and £3,500 to the objectors for disturbance, access issues and, in the case of the house nearest to the proposed bungalow, impact on privacy.
