Nigel Briant v Hugo Baldacchino

For modification of a restrictive covenant under section 84(1)(aa), the proposed use must be assessed on the assumption that the restriction does not exist and by reference to the whole application land. Planning permission is persuasive but does not conclusively establish that a particular stand-alone scheme is a reasonable user.

A covenant may secure practical benefits of substantial advantage where it prevents materially greater overlooking, loss of outlook, overbearing bulk and cumulative residential disturbance than a permissible replacement building. Those amenity benefits may justify refusal even though planning permission has been granted and monetary compensation might otherwise be available.

The applicant sought modification of a covenant preventing any further building on land formerly occupied by a fire-damaged cottage. He relied principally on section 84(1)(aa) of the Law of Property Act 1925 to implement planning permissions for alternative one- and two-house redevelopment schemes.

The neighbouring owner, who had the benefit of the covenant, objected. The central questions were whether each proposal was a reasonable user of the whole application land and, if so, whether the covenant secured practical benefits of substantial value or advantage by preventing it.

1. The application was refused. None of the statutory grounds under section 84 of the Law of Property Act 1925 was established for any proposal, whether singly or in combination.

2. The covenant did not prevent a replacement dwelling on the original footprint and of the original size, approximately 137 square metres, following destruction of the existing cottage by fire. The replacement need not replicate the former building. That permissible baseline was the appropriate comparator when assessing the effect of the proposed developments on the neighbour’s amenity and value.

3. Applying Re Williams’ Application [2017] UKUT 341(LC), the Tribunal assessed reasonable user on the assumption that the covenant did not exist and by reference to the whole application land. The three two-house combinations were reasonable residential uses. The front-site schemes A1F, A2F, B1F and B2F could also be reasonable as stand-alone houses. A3R alone was not a reasonable use of the whole land because its backland siting, design and layout contemplated another dwelling at the front.

4. The covenant nevertheless secured practical benefits of substantial advantage. The two-house A schemes would cumulatively increase overlooking, impair outlook and create disturbance from two adjoining households. A1F and A2F, though designed to mitigate impact, were substantially larger than the cottage, close to the boundary and visually overbearing. B1F’s long flank wall, garage and garden studio would similarly dominate the neighbouring property. B2F, if built alone, would stand on higher land and overlook the neighbour’s garden from habitable rooms and patios.

5. It was therefore unnecessary to determine whether the covenant also secured practical benefits of substantial monetary value. The objector’s valuation evidence was not accepted as helpful. Ground (c) failed because every proposed modification would injure the objector. Ground (a) failed because the covenant’s purpose of limiting the size and location of the dwelling remained capable of fulfilment and was not obsolete.

6. The decision was final save as to costs, for which directions were given.

This was an original application to the Upper Tribunal under section 84 of the Law of Property Act 1925. The judgment records earlier planning applications, including one planning appeal, but no appellate history of this covenant application.