Restrictive covenant – Modification – Applicant obtaining planning consent for new dwelling in garden – Land subject to restriction of buildings to existing private dwelling house and premises – Applicant applying for modification of restriction – Whether restriction ought to be deemed obsolete pursuant to section 84(1)(a) of Law of Property Act 1925 – Application dismissed
Penina Avenue rose up away from the A392, as it passed along the Gannel Estuary on the southern edge of Newquay. It was part of a residential development built in the mid-1970s and known originally as the Mellanvrane Lane Estate. The houses were either single-storey bungalows or chalet bungalows (with accommodation in the roof space) and had generously sized rear gardens.
The applicant had owned 14 Penina Avenue since April 2015. The objectors lived in the neighbouring property, number 16, which they purchased in December 1980. The rear garden of number 14 had a boundary with Wych Hazel Way and, in 2023, the local authority granted outline planning permission for a new two-bedroom detached dwelling to be constructed there.
The applicant said he and his wife intended to downsize to the new smaller property and sell 14 to pay for the new house and fund their retirement. The bedrooms would be on the ground floor, which was to be set into the bank of 16’s higher-level garden, so that only the first floor would be visible to the neighbouring properties.
The properties on Penina Avenue were all subject to a restriction imposed when the land was sold for development in 1973 which impeded erection of the proposed new dwelling. Therefore, the applicant applied under section 84(1)(a) of the Law of Property Act 1925 for modification of the restriction to permit the proposed development.
Ground (a) was satisfied where it was shown that, by reason of changes in the character of the property or neighbourhood or other circumstances of the case that the tribunal might deem material, the restriction ought to be deemed obsolete.
Held: The application was dismissed.
(1) In determining whether the restriction ought to be discharged or modified, the tribunal would take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area, as well as the period at which and context in which the restriction was created and any other material circumstances. If the applicants were able establish that the tribunal had jurisdiction to modify the covenant, it then had to decide whether or not to do so. If the applicant agreed, the tribunal might also impose an additional restriction on the land at the same time as modifying the original restriction.
There were four connected matters to be considered in an application under ground (a): (i) the purpose or object of the covenant, which might be stated in the instrument imposing the restriction or might be inferred from the nature of the restriction or from the known circumstances; (ii) whether the character of the property or the neighbourhood had changed since the covenant was imposed; (iii) whether the restriction had become obsolete by reason of those changes, in the sense that the object for which the restriction was imposed could no longer be achieved; and (iv) whether some material circumstance other than a change in the character of the property or the neighbourhood had had that effect: Adams and another v Sherwood and others; Re Fermyn Wood [2018] UKUT 411 (LC); [2019] PLSCS 10 applied.
(2) In the present case, the reference in clause 4 of the 1973 conveyance to the “general character of the estate as a high-class residential area” was in connection with the vendor’s retention of “the right to release or vary any of the said restrictions or stipulations”. The mutual covenants of clause 3, “for the benefit of the owners or occupiers for the time being of the said land edged green on the said plan or any part thereof” did not have those words, but the words could be understood to have relevance as the original purpose of the restriction.
It was not clear what exactly might be meant by the term “high-class residential area”, but plans and satellite views of the area showed clearly the larger sized plots and lower density of development with the bounds of the estate. An important part of the purpose of the restriction was to retain that lower density, and therefore the amenity of spaciousness.
(3) The most noticeable changes to the character of the neighbourhood were in the immediate vicinity of Nos 14 and 16. The tribunal could conclude from its inspection that the character of No 14 had not obviously changed since 1973; and nor had the character of the vast majority of the contemporaneous properties built within the estate.
Assuming that the original purpose of the restriction was to retain lower-density development, and therefore the amenity of spaciousness, within the estate, then that object had been achieved and continued to be achieved. While the rear gardens of 14 and 16 were now overlooked by more recent developments above and behind them, and the outlook from their gardens was towards newer houses at greater density, the fact their gardens were generous and spacious gave them a valuable level of separation from those new developments. They did not have great privacy, but what amenity they did have was created and maintained by the size of their plots. The restriction ought not therefore to be deemed obsolete.
(4) The applicant was conscientious in seeking the approval of the vendor in the 1973 conveyance (which continued to carry out development to the surrounding area) to his plans, as required by the first schedule to the 1973 conveyance. The fact it gave its consent (as it said it had done for other modifications) was evidence that they continued to exercise some control over the restriction. It was not clear that the vendor was exercising any particular discretion to achieve the object of the original restriction, but it was evidence that the restrictions in the first schedule of the 1973 conveyance were still functioning rather than obsolete. Moreover, the tribunal had not been made aware of any other material circumstances which would have the effect of rendering the restriction obsolete.
Accordingly, the tribunal had no jurisdiction to modify the restriction on ground (a) that it ought to be deemed obsolete.
The parties appeared in person.
Eileen O’Grady, barrister
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