Dahi Hassan & Anor v Nicholas Peter Heath

Under Law of Property Act 1925, s.84(1)(aa), the Tribunal must first decide whether the restriction impedes a reasonable use and whether it secures a practical benefit of substantial value or advantage, and must then decide whether to exercise its discretion to modify the restriction. Substantial value is ordinarily assessed by reference to the impact on the beneficiary’s property value. Substantial advantage is a distinct question and may arise from the beneficiary’s enjoyment of the property, even without measurable financial loss. Planning permission is relevant but does not determine the statutory question. A restriction preventing roof works which would have a significantly overbearing effect secured a substantial advantage. Ground-floor works with only a modest impact did not. The restriction was therefore modified in part.

The applicants owned 24 Elm Road and sought modification of restrictive covenants preventing alteration of the dwelling’s external elevation. They had planning permission for a loft and roof extension and a ground-floor extension, and had partly carried out the ground-floor works. Their neighbour, who owned 24A, objected and had obtained an injunction restraining further work.

The application proceeded solely under Law of Property Act 1925, s.84(1)(aa). The central issues were whether the proposed works constituted a reasonable use, whether the covenant secured a practical benefit of substantial value or advantage, and whether the Tribunal should exercise its discretion to modify the covenant.

1. Application allowed in part. The covenant was modified to permit specified ground-floor works, including their existing height, the installed rear window, a second aligned rear window and the front canopy. The roof works were excluded. The parties were directed to agree and submit the wording of the modification within 14 days.
2. The alterations to the door and window openings were alterations to the external elevations and were caught by the covenant. The Tribunal applied the reasoning in Triplerose Limited v Patel [2018] UKUT 0374 (LC).
3. For ground (aa), the proposed works would amount to a reasonable use of the land. The covenant impeded that use and secured a practical benefit to the objector. The questions whether that benefit had substantial value and whether it had substantial advantage were distinct.
4. The benefit was not of substantial value because the evidence indicated that completion of the works would not reduce the market value of 24A. The roof works nevertheless secured a substantial advantage because their increased height would have a significantly overbearing effect on the objector’s conservatory and garden. Planning permission did not remove that private benefit.
5. The public-interest limb did not justify modification of the roof restriction. The relevant question was whether impeding the proposed use was contrary to the public interest, not whether the proposed use itself was in the public interest. That required a broad balance between the use prevented and the advantages secured by the covenant, with considerable weight given to private rights.
6. As to the ground-floor works, the impact on the objector’s privacy, light and enjoyment was modest. The applicants’ conduct was ill-advised or naïve, but was not a cynical breach in the sense discussed in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45. Refusing modification and leaving the parties to litigate possible removal of the works would be disproportionate.

Not an appeal. The application was determined by the Upper Tribunal (Lands Chamber) under Law of Property Act 1925, s.84.