The Upper Tribunal refused a homeowner's application to remove a covenant preventing building in her garden as well as to vary a limitation on access.
This case concerned a homeowner's application to modify or discharge a restrictive covenant and to modify a right of way under Section 84 of the Law of Property Act 1925 (the "LPA 1925").
Facts
The applicant, Mrs Garton had obtained planning permission to build a new three-bedroom dwelling on land behind her home, Manor House, in Thoroton, Nottinghamshire, with associated access and parking.
However, part of this land (the Garden) was subject to a covenant imposed in 2019 when it was transferred to Mrs Garton by the previous owner, Mr Beeby, who later sold the neighbouring Thoroton Farm site for development. The covenant prohibited the (i) erection of any building or structure on the Garden and (ii) any use other than as a private garden. The transfer of the Garden also granted the applicant a right of access to it, over an adjoining private road (leading to Thoroton Farm) but only in connection with its use as a private garden. Mrs Garton, applied to the Upper Tribunal (Lands Chamber) to remove or modify the restrictive covenant and also to modify the limitation on the use of the access way.
The neighbouring developer and several residents of the new estate (comprising of eight newly developed houses on Thoroton Farm land) objected.
Key issues
The case turned on two key legal questions:
- Could the Tribunal modify or discharge the limited right of way (i.e., does it have jurisdiction to modify or discharge an easement)?
The Tribunal held it had no power to alter the terms of the right of way, as section 84 of the Law of Property Act 1925 only allows modification of restrictions, not easements. It also rejected an argument that on its true interpretation of the contract in this case the limitation on the right of way was inextricably bound up with the limitation in the covenant, such that if the covenant was modified the right of way should be read as being similarly modified. - Could the restrictive covenant itself be discharged or modified?
The Tribunal considered the application for discharge or modification of the restriction over the Garden, under the three available grounds contained in grounds (a), (aa) and (c) of section 84(1) LPA 1925. These are, respectively, (i) that due to changes in the neighbourhood or other material circumstances the restriction should now be seen as obsolete; or (ii) that the restriction impedes a reasonable user of land and that it confers no practical benefits of substantial value or advantage to those entitled to enforce it; or (iii) that discharge or modification would cause no injury to the persons entitled to the benefit of the covenant.
Mrs Garton argued the restriction was outdated (“obsolete”) since Thoroton Farm had already been redeveloped, and that blocking her proposed development of two new homes impeded a reasonable user of her land. She argued that it conferred no practical benefit of substantial value or advantage to the objectors.
The Tribunal found the restrictive covenant had been imposed in the context of the forthcoming development, which had now been brought into being. It was therefore not obsolete, quite the opposite.
As to the second ground, there was no dispute about the fact that the covenant restricted a reasonable user of land: this would have been difficult given the fact that planning permission had been granted for the proposed use. However, the objectors said the restriction protected them from extra traffic, parking pressure, and disturbance within their private estate, which conferred benefits of substantial value and advantage. No party served expert evidence in relation to current or likely future traffic movements, but after inspecting the site, the Tribunal agreed with the objectors. The access road was narrow and clearly designed to serve only the eight new houses, with residents themselves subject to covenants restricting them from parking on the access road. Evidence was provided concerning existing problems with parking on the access road. Allowing another property to use it risked congestion and trespass on communal areas, as well as potentially creating legal issues around the mutual enforcement of restrictions all of which gave rise to a risk of dispute. The Tribunal concluded that avoiding this by retaining the covenant gave “practical benefits of substantial advantage” to the residents. As such, the third ground (no injury) also could not be satisfied.
Outcome
Accordingly, the Tribunal refused the application. It determined that:
- It had no jurisdiction to modify the easement limiting use of the access road;
- The restrictive covenant continued to provide real benefits and meaningful protection to owners of the new estate; and
- Even if modification were possible, the Tribunal would have been slow to exercise its discretion where, as in this case, the restrictive covenant had only been recently entered into.
The decision means that Mrs Garton cannot proceed with implementing the planning permission to develop the two new dwellings unless she reaches a private agreement with the estate owners to alter the access rights and restrictive covenant.
The outcome of this case highlights how restrictive covenants on new developments are strongly protected. Even with the benefit planning permission, applicants face an uphill battle to override such private restrictions unless they are clearly outdated or provide no real benefit to the beneficiaries of the restrictive covenant.
