The Upper Tribunal refused a homeowner's application to remove a covenant preventing building on her garden.
This case concerns a homeowner's application to modify or discharge a restrictive covenant under Section 84 of the Law of Property Act 1925 (the "LPA 1925").
Facts
The applicant, Mrs Garton, applied to the Upper Tribunal (Lands Chamber) to remove or change a restrictive covenant on land behind her home, Manor House, in Thoroton, Nottinghamshire (the "Garden"). 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 are also limited access rights over an adjoining private road (leading to Thoroton Farm) which are also enjoyed by the Garden, in connection with its use as a private garden.
Mrs Garton had obtained planning permission to build a new two-bedroom dwelling in her garden with associated access and parking on the Garden. However, the Garden was subject to a covenant imposed in 2019 when it was transferred to her by the previous owner, Mr Beeby, who later sold the neighbouring Thoroton Farm site for development. The neighbouring developer and several residents of the new estate (comprising of eight new Thoroton Farm houses) 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. - 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 — obsolescence, unreasonable interference, or lack of injury to others (being grounds (a), (aa) and (c) of section 84(1) LPA 1925).
Mrs Garton argued the restriction was outdated (“obsolete”) since Thoroton Farm had already been redeveloped, and that blocking her proposed development of two new homes was unreasonable. On the other hand, the objectors said the restriction protected them from extra traffic, parking pressure, and disturbance within their private estate.
After inspecting the site, the Tribunal agreed with the objectors. The access road was narrow and designed to serve only the eight new houses, with residents themselves subject to covenants restricting them from parking on the access road. Allowing another property to use it risked congestion and trespass on communal areas. These were seen as “practical benefits of substantial advantage” to the residents.
The Tribunal found the restrictive covenant, imposed only six years earlier, was still serving its purpose of protecting the development and therefore not obsolete. Removing it would undermine the new estate’s layout and the residents’ quiet enjoyment.
Outcome
Perhaps unsurprisingly, 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 by keeping the estate free from extra traffic and parking.
- Even if modification were possible, the Tribunal would have been slow to exercise its discretion where, as in this case, the restrictive covenant has only been recently entered into.
The decision meant 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 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.
