Sean Denis Doherty & Anor v Alexander Paskhin

Under section 84 of the Law of Property Act 1925, a restriction may be modified where it impedes a reasonable use and provides no practical benefit of substantial value or advantage to those entitled to enforce it. A covenant directed to preserving an estate’s appearance does not, without evidence of that purpose, secure structural protection against construction risks. Statutory party-wall remedies and an appropriate indemnity may address such risks.

Changes within an estate will not make a scheme covenant obsolete unless they are sufficiently widespread to defeat its continuing purpose. Nor can a beneficiary’s agreement to modification be inferred merely from that beneficiary’s own breach of the covenant.

The applicants owned a terraced house on the Selborne Estate. A 1984 transfer prohibited alteration of the exterior appearance and construction of additional buildings. They sought to build a single-storey rear extension and undertake a loft conversion with a rear dormer, both permitted development but prohibited by the covenant.

The local authority released the restriction and the other immediate neighbour supported the proposal. The adjoining owner objected, principally because of a perceived risk of structural damage. The applicants relied on a party wall award, statutory protections and a proposed indemnity for certain dispute-resolution costs.

The Tribunal considered applications under grounds (a), (aa), (b) and (c) of section 84(1) of the Law of Property Act 1925. The central issue was whether the restriction secured practical benefits of substantial value or advantage which justified preventing the proposed works.

1. Application granted in part. The Tribunal modified, rather than discharged, the restriction under section 84(1)(aa) of the Law of Property Act 1925. The modification permitted the development authorised by the two certificates of lawfulness, subject to their conditions and an indemnity condition.

2. The proposed extension and loft conversion were reasonable private uses. They fell within permitted-development parameters, had been confirmed by certificates of lawfulness, and were supported by the local authority and one adjoining neighbour. The restriction admittedly impeded those uses.

3. The restriction did not secure practical benefits of substantial value or advantage to the objector. The evidence showed no material loss of daylight, sunlight, outlook, privacy, noise protection or value. Although the objector’s concern about structural damage was genuine, the covenant’s purpose was to preserve the estate’s appearance and prevent new buildings. There was no evidence that it was intended to confer structural protection.

4. Structural risks were addressed through the party wall award and the compensation and dispute-resolution provisions of the Party Wall etc. Act 1996. The applicants’ additional undertaking to reimburse, on one occasion, reasonable costs awarded against the adjoining owner under the statutory dispute procedure provided further protection. Money was therefore adequate for any relevant loss or disadvantage.

5. Ground (a) failed. Alterations elsewhere on the estate were not sufficiently widespread to render the restriction obsolete, since its purpose of maintaining the estate’s general appearance remained relevant. Ground (b) also failed because the objector had expressly withheld agreement; his ownership of a conservatory in breach of the covenant did not imply consent. Since the modification would not injure those entitled to the benefit, ground (c) was also made out.

6. The order took effect if the applicants accepted the proposed modified wording within three months.

not stated in the judgment.