Restrictive Covenants: Whether restrictions could be modified to permit a reasonable use of the property (Dickinson v Adams and another – 2022)

Where restrictive covenants affect property such that redevelopment is not permitted, will the Upper Tribunal modify restrictions where they prevent a reasonable use of the property and offer no practical benefit to their beneficiaries?

The background

Dickinson v Adams and another [2022] concerns a bungalow purchased by the applicant. Planning consents were granted for the construction of a detached double garage, and later for the extension and refurbishment of the bungalow into a five-bedroom dwelling over one and a half storeys. Further planning consent was granted in 2020 to demolish the existing bungalow altogether and replace it with two separate dwellings: a four-bedroom house and a three-bedroom bungalow.

An application was made by the applicant to the Upper Tribunal for the modification of a restrictive covenant on the title to the property which stated that the land was to accommodate only one single detached dwelling. The owners of a neighbouring property objected; their property shared an unregistered access area with the applicant but did not share a common boundary with the affected land.

In his application, the applicant argued for a modification of the restriction under s.84(1) Law of Property Act 1925, stating that the Upper Tribunal may order the modification or discharge of a restriction where reasonable use of the land is impeded by the restriction and where modification of the restriction will not injure those benefiting from it. The UT was required by statute to consider the development plan, patterns in the local area for the grant or refusal of planning permissions, the period of time in which the restriction was imposed, together with any other relevant matters.

The decision

The application was allowed by the UT and the restriction modified on the grounds that its original form impeded a reasonable use of the property, and that modification would not injure parties who objected to the application.

The neighbours put forward a number of objections:

1. They wanted to prevent an imbalance caused by the view of a large new house to others on the road;
2. The development would cause increased wear and tear to the access road, both during construction and when in use afterwards, with costs payable by them;
3. Increased numbers of vehicles would be parking in the access area both during construction and afterwards; and
4. Modification of the restriction presented risk of further future development on both the subject plot and others in the locality.

In considering what may happen if the modification was refused, the applicant proposed to undertake the development detailed in the 2017 consent which would result in a single dwelling larger in size and therefore more visible to the objecting neighbours. As the restriction did not limit the size of a single dwelling on the site, the applicant would be able to lawfully proceed; the proposed development of two dwellings had less visual impact. The neighbours had not appreciated this, and development of a single larger dwelling would carry much of the same – or more – impact in increased vehicle parking, accessway wear and tear and visual impact.

The plans for the two dwellings allowed for adequate parking provision in the view of the UT. The risk of future development was not a relevant consideration in this case as the impact would be on immediate neighbours, and the planning consent had been granted with due consideration to the conservation area and residential surroundings of the subject property.

Advice and action for landlords

This is an interesting, and helpful, decision in the application of s.84(1) of the Law of Property Act 1925, finding that the restriction impeded reasonable use and concluding that its modification would not injure the objecting neighbours.

Although the proposed development comprised two properties, the ‘fallback’ development of a single dwelling under the 2017 consent offered no lesser impact, and in fact may potentially result in a greater visual impact than two smaller properties. Landlords will note that the Tribunal is prepared to grant modification where proposed redevelopment is reasonable.