Open plan estates – challenging the restrictions on boundary structures

In Re Davie [2016] UKUT 0462 owners of a residential plot on an open-plan estate applied for discharge or modification of a 1967 restrictive covenant prohibiting them from building a low brick wall between their property and the pavement. Their earlier request for permission for the wall had been refused by the Trust entitled to the benefit of the covenant.  There were several grounds for this: most of the other estate residents objected, permitting one was likely to lead to other walls being built, and the open-plan nature of the estate was important to its character and underpinned the value of the homes. No planning consent was needed for the wall. The restriction prohibited three things: erection of any new wall or fence, building anything (other than fences) between the front of the house and the road, and building anything before drawings had been approved by the Trust in writing. It did not limit walls or fences in place in 1967, nor like-for-like replacements, no matter how high or where situated. Broadly, a freehold restrictive covenant can only be discharged or modified under s84(1) Law of Property Act 1925 if either: The restriction impedes some reasonable use of the land, it no longer gives the beneficiary any practical benefits of substantial value, and money will be adequate compensation for any loss caused by the discharge or modification, OR Discharging or modifying the restriction will not injure the persons entitled to its benefit. The Davies argued for complete discharge or, alternatively, for modification so that walls were permitted with the Trust’s prior consent.  They said the restriction impeded their reasonable user of the front garden (for exercising dogs and allowing children to play) because of the danger of running into the road. They suggested that the blanket prohibition did not offer any practical benefits of substance to the Trust or homeowners.  This was for three reasons: the wall was so low it would not ruin the open-plan aspect; other plots had new walls and fences where the Trust had not sought to enforce the restriction; and the original boundary structures could be high enough to interfere with the open-plan vista anyway. Moreover, no evidence had been presented of any likely drop in value due to the low wall. The Trust opposed discharge or modification and also pointed out that no drawings had been submitted for approval. They questioned the safe user motive, because a low wall would not stop dogs or children escaping and anyway the estate was quiet. They believed discharge of the restriction would lead to more walls, and the loss of the benefit to all of the attractive open-plan nature. The Tribunal agreed that the restriction still offered such benefits and, despite lack of valuation evidence, assumed these would be of substantial value. Permitting this wall might lead to more with resulting compromise of the open-plan appearance.  So discharge and modification were refused.  It seems that the jewel of 1960s town planning is safe from attack! Sue Highmore is a property law consultant