Jasper Edward Peck Dickinson v William Gordon Adams & Anor

When considering an application to modify a restrictive covenant, the Tribunal must compare the proposed use with what could realistically be done if modification were refused. Planning permission is relevant but does not itself determine the application. The Tribunal must assess whether the covenant secures practical benefits of substantial value or advantage, taking account of the development plan, planning patterns, the covenant’s age and context, and other material circumstances. Under ground (c), modification is available where it will not injure the persons entitled to the covenant’s benefit. Concerns about construction traffic, parking, maintenance, outlook and precedent must be assessed against the realistic alternative use and the evidence. Appropriate undertakings and security may address residual practical concerns.

The applicant owned a bungalow subject to a restrictive covenant permitting no more than one private detached dwelling house or bungalow on the land. Planning permission was granted for demolition of the bungalow and construction of a replacement house and an additional bungalow.

The neighbouring owners objected, relying on concerns about the character and outlook of the area, construction traffic, parking, maintenance of a shared access area and the risk of future intensification. The applicant sought modification under grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925. The central issues were whether the covenant secured practical benefits of substantial value or advantage and whether modification would injure the objectors.

1. Application granted. The Tribunal modified the restrictions in the Charges Register under section 84(1)(aa) of the Law of Property Act 1925, subject to acceptance of the modification and specified undertakings.
2. In assessing whether the restriction impeded a reasonable use, the Tribunal had to consider what could realistically be done without modification. The applicant had an extant planning permission for a larger single dwelling and was likely to implement it if modification were refused. Accordingly, concerns about construction traffic, parking and changes to outlook had to be assessed against that alternative. This approach was consistent with Re Bass Limited’s Application (1973) 26 P&CR 156.
3. The proposed development would provide adequate parking and a passing area. Occasional use of the shared access area for parking was already accepted and was not shown likely to become problematic. Additional wear and tear from one further dwelling was unlikely to be significant. The applicant’s offer to repair damage and provide £5,000 security further addressed the objectors’ concerns.
4. The concern that modification might create a precedent for increased density was not a practical benefit in this case. Future applications would be determined on their own merits and the surrounding plots had materially different relationships to the objectors’ property.
5. The Tribunal took account of the development plan, the pattern of planning permissions, the 65-year age and context of the covenant, current housing-supply policy, and the planning assessment of the development’s effect on the conservation area and neighbouring amenity. The restriction secured no practical benefits of substantial value or advantage. Ground (aa) was therefore satisfied, and the proposed modification would not injure the persons entitled to the benefit, so ground (c) was also made out.
6. The order was conditional on the applicant accepting the modification, undertaking to implement the construction method statement, undertaking to repair damage caused by the works, and providing £5,000 security in joint names with the objectors if requested.