Background
Hughes Family Property Co Ltd and Hughes Trading Co Ltd owned land forming part of the garden at 28 Redwalls Meadow, Dartmouth. They obtained conditional planning permission in May 2023 to build a three-bedroom house facing and accessed from Mount Boone, but a 1977 restrictive covenant prohibited any building on the relevant part of the land and required it to be laid out with trees and shrubs.
Neighbouring owners with the benefit of the covenant objected to its modification. They argued that the restriction preserved Redwalls Meadow’s open appearance, limited traffic, parking, trespass and disturbance, and guarded against further development. The applicants sought modification under section 84(1)(aa) and (c) of the Law of Property Act 1925 so that they could implement the planning permission.
The Court’s Holding
The Upper Tribunal held that the proposed residential use was reasonable and was impeded by the covenant. Although preserving the estate’s appearance was a practical benefit, it was not of substantial value or advantage: the modest one-and-a-half-storey house would appear as a relatively unobtrusive extension of development along Mount Boone, and its design and orientation would keep overlooking to a minimum. The covenant provided no practical benefit concerning traffic or parking because the house would be accessed from Mount Boone, not the Redwalls Meadow cul-de-sac. Concerns that modification would set a precedent for other sites were also insufficient.
The Tribunal concluded that grounds (aa) and (c) were satisfied and exercised its discretion to allow modification, notwithstanding Mr Hughes’s knowing construction of an earlier annexe in breach of the covenant. It awarded no compensation because any loss of amenity was too slight to quantify and the objectors established no other compensable loss. The proposed modification permits the development authorised by the May 2023 planning permission, including renewals and approved amendments, but the Tribunal expressly provided that the modifying order would be made only if the applicant signified acceptance of the proposed modification within three months of the decision.
Key Takeaways
- A restrictive covenant may be modified under section 84(1)(aa) where it impedes a reasonable use but secures no practical benefit of substantial value or advantage.
- General concerns about estate character, parking and precedent were insufficient where the approved house would have limited visual impact and separate access from another road.
- The relief was conditional: the modifying order would issue only if the applicant accepted the proposed modification within three months, and no compensation was awarded.
Why It Matters
The decision illustrates the Tribunal’s fact-specific assessment of whether the benefits secured by a building restriction are substantial, with planning approval relevant to the reasonableness of the proposed use but not itself determinative of the statutory application.
It also shows that a prior knowing breach will not necessarily cause the Tribunal to refuse relief once statutory jurisdiction is established, although the discretion remains available and must be exercised by reference to the property, its history and all relevant circumstances.