The Upper Tribunal considers whether to modify restrictive covenants, scrutinising the conduct of the objector.
This decision concerns an application made under section 84 Law of Property Act 1925 to modify restrictive covenants burdening a residential property in Goring-on-Thames, Surrey.
The application followed a dispute between the Harrison-Ellis', the owners of the burdened property known as "Hillside", and the Hunts, who owned the property diagonally across, known as "Korobe".
Prior to purchasing Hillside, the Harrison-Ellis' had been made aware of restrictive covenants burdening the property which benefited Korobe. These covenants had been put in place in the 1960s prior to the original development of Hillside and established a building line by reference to properties already built. They restricted development to one single storey dwellinghouse, with dormer windows in the roof on the western or southern sides of the property but not the northern or eastern. The height of building was further limited by reference to a nearby single storey house.
As the Harrison-Ellis' proposed to purchase Hillside with the intention of constructing an additional storey, they wrote to the Hunts in February 2020 with details of their intended plans, providing a summarised version of the covenants (which was found later not to have been an accurate reflection) and seeking permission to "remove" the same. The Hunts did not respond.
The applicants purchased Hillside in March 2020, applied for the necessary planning permission, and undertook the works, increasing the height of the building in breach of the restrictions and installing dormer windows in the prohibited eastern face. Notably, the Hunts did not object during the planning stages, nor did they raise any objections during or after the construction works. Indeed, there had been in-person conversations between the parties where the development works had been referred to and still the Hunts did not object, potentially, being keen to secure support for their own works.
In January 2023, some two years after completion of the works to Hillside and prompted by the installation of an offending bin store on the Hillside land, the Hunts alleged breach of the covenants, ultimately issuing proceedings in the County Court. The litigation was stayed to enable the Harrison-Ellis' to make an application to the Tribunal to modify the covenants, primarily on the basis that the continued existence of the restrictions would impede a reasonable user of the land.
The Upper Tribunal considered whether it should exercise its discretion in light of the conduct of the parties, and in particular, rejecting the argument there had been a cynical breach by the owners of Hillside, instead finding the applicants to be naïve in their approach but that there was no deliberate attempt to mislead the objectors. The failure of the objectors to exercise their right to the benefit of the covenant until 2023 was a key focus.
The Hunts argued the applicants had acted in bad faith, that they had adopted a "build now and apply later" attitude to the covenants. However, the Tribunal considered that the delay in objecting to the development and lack of interest in the content of the restrictions indicated the objectors were exaggerating their unhappiness with the breach; they had multiple opportunities before and during the development to object but failed to act; and it would be unfair to now penalise the applicants by requiring an expensive and destructive reversal of the extension. Whilst the Hunts asserted their privacy was infringed by the upper floor of Hillside, built in breach of the restrictions, Korobe had been re-built with floor to ceiling windows and a new access both of which meant passers-by could see into the property, suggesting privacy was not a key priority and with the effect that the redeveloped Hillside was not the sole intrusion.
On that basis, the Tribunal found in favour of the applicants and modified the restrictions, although the covenants were seen to secure a practical benefit to the Hunts who were awarded compensation in the sum of £25,000.
The decision is a reminder that the Tribunal will consider the conduct of the objector, in exercising its discretion as to whether to modify or discharge a covenant, and that delaying in asserting the benefit of a covenant can be detrimental to a later objection.
