An application to modify or discharge a restrictive covenant to enable the construction of a block of flats has been refused in the Upper Tribunal (Lands Chamber).
The applicant had planning permission to build a 5 storey block of 33 flats. However, the land was subject to two restrictive covenants, from 1963 and 1993, which prevented the construction of more than one dwellinghouse on one of the plots and the occupation by more than one household on another of the plots. The applicant sought modification of the two covenants so that the block of flats could be built.
In order to modify the covenants the Tribunal needed to be satisfied that those covenants do not secure practical benefits of substantial value or advantage.
Judge Elizabeth Cooke and Mrs Diane Martin accepted that the development would be a reasonable use of land but that the building would be overbearing and would transform the outlook from two properties with the benefit of the covenants. They found that the covenants gave the respondents a practical benefit of substantial advantage and therefore found they did not have any discretion to modify them.
This case is a reminder that the Upper Tribunal look at the benefit conferred by covenants seriously and even with planning permission being granted will not always modify or discharge cumbersome covenants. Developers need to be aware when purchasing or optioning land of all of the rights affecting their title.