The Upper Tribunal (Lands Chamber) has reviewed restrictions on use and building works in Naidu and another v Morton and others [2022] UKUT 172 (LC), a decision which highlights the need for preparation and to secure planning permission for works before applying to discharge or modify a restrictive covenant under section 84(1) of the Law of Property Act 1925.
The application concerned a three-storey town house, at the highest end of a terrace of properties, within a development in Weybridge, Surrey. The property was subject to restrictions contained in a 1989 transfer which prevented any alteration to the external plan or elevation of the property without consent and required the property to be used only as a single private dwellinghouse, with trade business or manufacture prohibited.
The applicants made their application prior to seeking planning consent and with no supporting details of their proposals for a side extension which would add 50% to the existing frontage and provide new rooms on all three levels. They also wanted to be able to work from home and to run a business from the property. Their immediate neighbours objected. Subsequently, a proposal for pre-application advice was considered acceptable overall, and by the date of the hearing a planning application had been submitted but not determined.
The focus of the application was on ground (aa) of section 84(1) of the 1925 Act that the continued existence of the restrictions would impede some reasonable use of the land and that they secured “no practical benefits of substantial value or advantage” to the person with the benefit of them and any loss or disadvantage could be compensated in money.
The tribunal accepted the applicants’ planning expert’s opinion that a change of use of the property for exclusive use for business purposes was inappropriate and would not secure planning permission. However, working from home or running a business where its primary function remained as a private residential property would be appropriate in a residential area and would not breach statute. The restriction did not impede the use proposed by the applicants.
The tribunal decided that two of the neighbours would suffer no loss of light or privacy or any overbearing impact from the proposed extension. However, one neighbour whose property was situated above the rear garden of the property was likely to benefit from structural support provided by the retaining walls in the garden which would need to be rebuilt as part of the extension works. The extension would also be visible from the curtilage of the property. So, the restriction secured practical benefits to one neighbour. However, given the safeguards provided by planning controls, these were not significant in the sense of “considerable, solid, big”: Shephard v Turner [2006] 2 P&CR 28.
The tribunal was satisfied that ground (aa) was made out. However, it refused to exercise its discretion to modify the restriction in the absence of a planning permission which addressed the structural concerns affecting the neighbour since specialist engineering input was required. A conditional modification would not be appropriate. The applicants could renew their application once planning permission had been obtained.
Louise Clark is a property law consultant and mediator
