On the Twelve day of Christmas - Bryn Davey

On the 12th day of Christmas Bryn Davey from Irwin Mitchell’s Real Estate Disputes team considers an interesting case where Doherty successfully applied to remove a restriction preventing the building of extensions on residential property in the Upper Tribunal.

Background 

The owners of No 4 (Applicants) wished to exercise permitted development rights by constructing single story extension and loft conversion with rear dormer roof. A restrictive covenant prevented any alteration to the exterior appearance of No 4 and the construction of additional buildings. Both would be in breach of the restriction.

The local council issued certificates of lawfulness for the proposed works and a issued a deed of release. The Applicants had the support of their neighbours apart from the owners of adjoining house No 5 (Objector). The Objector initially agreed by email to consider a limited release on payment of compensation. Talks between the Applicants and Objector then lapsed. The Applicants applied to remove or vary the restriction.

Legislation

Section 84(1) of The Law of Property Act 1925 gives the Upper Tribunal (UT) the power to discharge or modify restrictive covenants on various grounds. The application was made under grounds which can be summarised as: 

•  (a) changes in the character of the neighbourhood mean that the restriction ought to be deemed obsolete
• (aa) the restriction currently impedes a reasonable user of the land
• (b) parties have agreed, either expressly or by implication, to removal or modification
• (c) the removal or modification will not injure the persons entitled to the benefit of the restriction and compensation would be appropriate 

Decision

Going through the grounds, the UT rejected the Applicants arguments on (a) that the restriction was now obsolete. While there had been some changes of character at neighbouring properties and there had been conservatories and extensions added, the threshold is a high one. The changes were not as widespread and sufficient in number as to render the restriction obsolete. 

The UT also rejected (b) the argument that the parties had agreed to remove the restriction. While the Objector had initially indicated a willingness to agree, no agreement had been reached and the Objector had specifically challenged the application.

The UT allowed the application on ground (aa). The UT deemed that the Applicants’ proposed use was both reasonable and that the restrictive covenant impeded the proposed use. The fact that the council had deemed the proposals lawful and entered into a deed of release was very persuasive that the use was reasonable. In coming to this determination, the UT placed weight on the expert evidence that the application would not result in any loss of value or loss of practical benefit to the Objector’s property. 

As the tribunal considered that (aa) ground was made out it followed that the removal of the restriction would not be injurious to the Objector, ground (c) was made out. 

Conclusions

The most efficient solution is come to an agreement with all, or at least a majority of, interested parties. This also helps show that the proposed use is reasonable. Where an application is necessary, obtaining expert evidence about the effect (or lack of) neighbouring properties is important. While it can be difficult to show that a restriction is obsolete, other grounds are available.