Craig Duncan Collins v Richard Howell

Modification under section 84(1)(aa) of the Law of Property Act 1925 requires more than a reasonable proposed use which is impeded by a restriction. The applicant must also show that the restriction secures no practical benefits of substantial value or advantage, or that it is contrary to the public interest, and that money would provide adequate compensation for any loss or disadvantage. Practical benefits may include views, privacy, tranquillity, openness and the preservation of a rural setting. Their value is assessed in the circumstances as a whole, including the purpose and continuing importance of the covenant. A planning permission does not itself justify modification of a restrictive covenant.

The applicants owned a field and stables subject to a covenant restricting use to grazing, arable use and grass cutting, and limiting buildings to stables on the far boundaries. They obtained planning permission for an equestrian manège and applied under section 84(1)(aa) and (c) of the Law of Property Act 1925 to modify the covenant. The respondents, whose farm benefited from the covenant, objected on grounds including loss of views, privacy, tranquillity and rural amenity. Ground (c) was abandoned. The central issue was whether the covenant secured practical benefits of substantial value or advantage to the respondents.

1. The application was dismissed. Ground (c) was abandoned, and the requirements of ground (aa) were not satisfied.
2. The proposed construction and use of the manège was a reasonable use of the land and was impeded by the covenant. Those matters were common ground. The decisive question was whether the covenant secured practical benefits of substantial value or advantage.
3. The benefits secured were not confined to a financial interest in the land. They included preservation of views, privacy, tranquillity, openness, light and space, and control over activities in the fields surrounding the respondents’ home.
4. The Tribunal assessed the evidence in its factual context. The manège, elevated by substantial earthworks, would create an obviously man-made feature, permanently alter the skyline and interrupt views. Screening would not entirely conceal it and would take time to mature.
5. The loss of privacy alone would not have been substantial or significant. However, the manège would create increased activity and noise from horses, riders, instructors and spectators. Tranquillity included calmness and an absence of repetitive activity, not merely peacefulness.
6. The covenant had been imposed when the respondents acquired the farm and continued to provide the benefit for which they had bargained. Preservation of the rural setting was of substantial advantage and value, irrespective of fluctuations in market value. The Tribunal preferred the respondents’ expert assessment of the likely impact.
7. The Tribunal therefore concluded that the covenant secured practical benefits of substantial value or advantage. It was unnecessary to determine compensation because the statutory condition permitting modification had not been met.