Michael Lackey v John Pearce & Anor

Under ground (a) of section 84(1) of the Law of Property Act 1925, a restrictive covenant is obsolete only where changes in the character of the property or neighbourhood, or another material circumstance, mean that its original purpose can no longer be achieved. The inquiry requires identification of that purpose and of the benefited land. Planning permission and development in the wider neighbourhood do not by themselves establish obsolescence. Where a covenant continues to preserve the lower-density character and spacious amenity for which it was imposed, the Tribunal has no jurisdiction under ground (a) to modify it.

The applicant sought modification under ground (a) of section 84(1) of the Law of Property Act 1925 to permit a new two-bedroom dwelling in the rear garden of 14 Penina Avenue, Newquay. Outline planning permission had been granted, but a 1973 conveyance restricted construction on the plot to the existing private dwellinghouse and premises.

The neighbouring owners objected. They contended that the covenant protected the low-density and spacious character of the Mellanvrane Lane Estate, notwithstanding more intensive development in the wider area. The central issue was whether changes since 1973 meant that the restriction ought to be deemed obsolete.

1. Application refused. The Tribunal had no jurisdiction to modify the restriction under ground (a) of section 84(1) of the Law of Property Act 1925, because the restriction was not obsolete.

2. Applying the four connected matters identified in Re Fermyn Wood [2018] UKUT 0411 (LC), the Tribunal first identified the covenant’s purpose. Although the mutual covenant did not itself use the expression “high-class residential area”, that expression in the vendor’s reservation was relevant to purpose. The restriction was intended, importantly, to retain lower-density development and the amenity of spaciousness within the Mellanvrane Lane Estate.

3. The relevant benefited land was the land edged green in the 1973 conveyance. It did not extend eastward to Wych Hazel Way, although the objectors’ neighbouring property benefited from the restriction. The applicant’s property and the great majority of the original estate had not materially changed in character. Extensions and a limited infill development did not alter that conclusion. Development at greater density in the wider Trenninick Estate was distinguishable from the character of the protected estate.

4. The covenant’s object remained achievable and continued to be achieved. The generous gardens still created valuable separation and spacious amenity despite overlooking and the outlook towards newer development. Consent by the original vendor’s successor to the applicant’s plans was also evidence that the restrictions continued to function, rather than evidence that they were obsolete. No other material circumstance established obsolescence.

not stated in the judgment.