Restrictive covenant – Modification – Section 84(1)(aa) of Law of Property Act 1925 – Applicant wishing to redevelop site of former dwelling house destroyed by fire – Applicant applying to modify covenant against erecting further building with range of redevelopment proposals for one or two houses – Whether restriction securing practical benefits of substantial value or advantage – Application dismissed.
The applicant owned Smugglers Hyde, 47 Brook Lane, Corfe Mullen, Wimborne, Dorset. The property comprised a two-storey partially thatched cottage with a large garden which had been badly damaged by fire. The objector owned the adjoining property at No 49. The applicant wished to sever the plot to allow two dwellings to be built and had obtained planning permission for various proposals.
However, the applicant’s property was subject to a restrictive covenant requiring the landowner “not to erect any further building of any kind on the property hereby transferred save for an extension to the existing garage and then only in accordance with plans first submitted to and approved in writing by the transferors (such approval in respect of plans for any garage extension not to be unreasonably withheld)”.
Restrictive covenant – Modification – Section 84(1)(aa) of Law of Property Act 1925 – Applicant wishing to redevelop site of former dwelling house destroyed by fire – Applicant applying to modify covenant against erecting further building with range of redevelopment proposals for one or two houses – Whether restriction securing practical benefits of substantial value or advantage – Application dismissed.
The applicant owned Smugglers Hyde, 47 Brook Lane, Corfe Mullen, Wimborne, Dorset. The property comprised a two-storey partially thatched cottage with a large garden which had been badly damaged by fire. The objector owned the adjoining property at No 49. The applicant wished to sever the plot to allow two dwellings to be built and had obtained planning permission for various proposals.
However, the applicant’s property was subject to a restrictive covenant requiring the landowner “not to erect any further building of any kind on the property hereby transferred save for an extension to the existing garage and then only in accordance with plans first submitted to and approved in writing by the transferors (such approval in respect of plans for any garage extension not to be unreasonably withheld)”.
The applicant applied to the tribunal for modification of the covenant, under section 84(1)(aa) of the Law of Property Act 1925, to allow any one or two of seven dwellings to be constructed, only four of which had a current planning permission. His main contention was that the restriction impeded a reasonable use of the land and did not secure the objector any practical benefits of substantial value or advantage (section 84(1)(aa)).
The objector opposed the application, arguing that the restriction was imposed to preserve the tranquillity of his garden, the enjoyment of which was vulnerable to activity from the adjoining higher ground of the application land.
Held: The application was dismissed.
(1) The applicant had invited the tribunal to choose from a menu of seven possible developments, and suggested that three potential replacement dwellings for plot A should be considered first, and if modification was permitted for one of those then three potential new dwellings for plot B should be considered. If the tribunal did approve any of the plot A proposals, then the plot B proposals should be considered independently. Should none of those be approved then the tribunal was asked to consider a “reinstatement” dwelling, although plans showed that it would not have the same footprint as the original dwelling, and would leave plot B undeveloped.
(2) That singular approach made it difficult for the tribunal, and the objector, to understand and have confidence in the applicant’s true intentions for development. The tribunal would only rarely modify a restriction to permit development which was not clearly defined by a planning permission. It had been a particular feature of the application that the detail of the various proposed developments had evolved constantly. Before permitting modification on ground (aa) it was necessary for the tribunal to assess the likely impact on the objector of the proposed development, and therefore the scale of benefit secured by the restriction. Therefore, only proposals defined by planning permission were likely to have any real prospect of success. An extended timescale was agreed with the parties to allow for decisions to be received on the latest planning applications, and then for the objector’s expert to provide a supplemental report taking those decisions into account.
The applicant had been relentless in pursuing planning applications for two large houses on the application site, making minor changes to proposals for each plot then resubmitting as new and separate applications, to the point where planning resistance had been overcome. The applicant had not demonstrated any real desire to satisfy the covenant, only a desire to maximise the built area of two dwellings on the application land, with some lip service paid to their potential impact on the objector.
(3) The two key factors in the application for modification of the covenant to allow development on plot A were proximity and bulk. The objector’s concerns about the construction of basement accommodation so close to the boundary were valid. The applicant had tinkered at the margins with dimensions and design features of the proposed dwellings, but the plain fact was that his proposed dwellings were significantly bigger than the original property and sited too close to the boundary with the objector’s property. In preventing either of the proposed dwellings, the covenant secured to the objector practical benefits of substantial advantage. Therefore, the tribunal had no jurisdiction to modify the covenant to allow development on plot A.
(4) The value of the objector’s property was currently £660,000, by comparison with the prospective value of £725,000 with a replacement dwelling on the application site in compliance with the covenant. Modification of the covenant to allow development of the least intrusive of the proposals for plot B, would cause no uplift in the value of the objector’s property from the figure of £660,000 because, in severing the application site, it would remove none of the uncertainty over development on the adjacent plot A. It would therefore sustain the loss of £65,000 from the potential value of £725,000. At 9% that was a substantial loss of value.
The parties agreed that the benefit of the covenant should be considered against the benchmark of a compliant modern dwelling and in impeding the proposals for plot B the covenant secured to the objector benefits of substantial value, leaving the tribunal no jurisdiction for modification.
Per curiam: It was an irony that by juggling numerous planning applications and amendments, ostensibly to offer the tribunal a menu of options for modification across the two plots, the applicant had created such an onerous burden for the beneficiary of the covenant, and any future beneficiaries, that modification was an unlikely prospect. None of the proposals considered reflected in any way the original dwelling on the application land. They were essentially re-worked earlier proposals, all involving severance of the site into two plots with large dwellings.
It was not for the tribunal to advise the applicant how he should proceed but an application to the tribunal was not a consultation process. Any future application on the application site without planning permission to define it at the date of the application was likely to be refused. Applications and proposals presented in the alternative were likely only to lead to confusion and to diminish the prospects of success. Any proposal which involved severance of the site would need properly to take account of practical benefits in term of amenity which the covenant provided to the objector.
The applicant appeared in person; Charles Auld (instructed by Porter Dodson) appeared for the objector.
Eileen O’Grady, barrister
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