Restrictive covenants – discharge under s84 LPA 1925
Summary
The Applicants applied to modify a restrictive covenant on grounds (aa) and (c) of section 84 of the LPA 1925 in order to allow them to undertake extensive works to their bungalow – works for which they had already obtained planning permission.
The Tribunal refused the application on the basis that the covenant secured practical benefits of substantial value or advantage to the Applicants' neighbours, illustrated particularly by the fact that "the development would be hugely prejudicial and that the 'density and massing...would be far in excess of what it would be reasonable to impose...'" The Tribunal was also satisfied that the ability to prevent overlooking was a substantial benefit in these circumstances.
Facts
The Applicants' property was subject to a restrictive covenant contained within a 1959 conveyance. This provided, amongst other things, that "no such building shall after erection be altered without the [adjoining owners'] previous consent in writing".
The Applicants obtained planning permission to undertake works to create a two-storey house in place of their single-storey bungalow, increasing the property by 2.76 times the size of the existing building.
The Applicants approached the adjoining neighbours for consent to their proposed works, but the neighbours were concerned about the impact upon their property, West Hill. These concerns particularly related to the proposed increased roof height, the detrimental impact on the views from West Hill (since its main rooms would look straight out onto a large, much closer wall – even allowing for the trees to be planted by the Applicants – and would lose much of the natural sunlight) and the potential loss of privacy as a result of overlooking from new habitable rooms to be created within the extended property.
Despite extensive communications between the Applicants and their adjoining neighbours, the neighbours refused to consent to the Applicants' plans. The Applicants therefore applied for modification of the covenant under grounds (aa) and (c) of section 84 of the Law of Property Act 1925 – to specify that consent to alterations should not be unreasonably withheld and that the Applicants' proposed works should be permitted. The neighbouring owners objected to the proposed modification, albeit they agreed that it was an implied term of the covenant that consent should not be unreasonably withheld.
(Section 84(1)(aa) allows the discharge or modification of a restriction where it impedes a reasonable user of the land. Under section 84(1A), discharge or modification is permitted where the Upper 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 discharge/modification of the restriction. The Applicants also sought to rely on section 84(1)(c), by demonstrating that that the modification would not injure the persons entitled to the benefit of the restriction.)
The objectors also issued High Court proceedings to seek a declaration that their refusal of consent to the proposed development was reasonable, but the proceedings were stayed pending the determination of the Lands Chamber application.
Decision
The Tribunal noted that ground (aa) would not be made out if consent to the alteration could not reasonably be withheld, since ground (aa) only applies where the restriction impedes some reasonable user of the land. However, it felt there could be "no doubt" that the proposed user was reasonable, given that planning permission had been granted (although this alone was not conclusive) and there was no suggestion that the use of the land would be altered. The Tribunal added that the size of the planned extension and its prospective impact on West Hill were issues relating to the question of whether the objecting neighbours enjoyed practical benefits of substantial value or advantage as a result of the covenant.
Both parties agreed that the covenant secured practical benefits to the objectors and the Tribunal confirmed its view that the covenant was designed "to protect the owners of West Hill from development that might impact upon their property." The Tribunal stated:
"Whether or not those practical benefits are of substantial value or advantage are a question of fact and degree (see Re North's Application (1997) 75 P & CR 117) and it is agreed that each case needs to be considered on its own merits."
Having examined the objecting neighbours' complaints regarding the impact of the Applicants' plans upon West Hill, the Tribunal felt that the proposed erection of a new gable end wall – "a stark and overbearing structure virtually right onto the boundary" – was itself sufficient to justify the conclusion that the benefits of the covenant were of substantial value and advantage. The Tribunal agreed with the neighbours' view that "the development would be hugely prejudicial and that the 'density and massing...would be far in excess of what it would be reasonable to impose...'"
In relation to the impact upon privacy as a result of overlooking from the redeveloped property, the Tribunal was satisfied that the ability to prevent such overlooking was a substantial – albeit less valuable - benefit in these circumstances.
In light of these conclusions, the Tribunal held that ground (aa) was not satisfied by the Applicants. It also found that, since injury would be caused to the objectors if the application was allowed, ground (c) also failed and the question of compensation therefore did not arise.
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