Duncan Grossart v Vikki Ames

A restrictive covenant may be discharged where its original purpose has been fulfilled and substantial changes have made it obsolete. A use supported by planning permission may constitute a reasonable use for the purposes of section 84 of the Law of Property Act 1925. The Tribunal must assess whether the restriction secures practical benefits of substantial value or advantage, taking account of the development plan, planning-permission patterns, and the circumstances in which the restriction was imposed. A restriction does not secure a practical benefit merely by preventing temporary construction disturbance. Where the proposed development causes no material interference with the beneficiary’s enjoyment of property, discharge may also be justified on the basis that it causes no injury.

The applicant sought discharge, or alternatively modification, of a restriction imposed by a 1996 transfer. The restriction limited the application land to use as a single private dwellinghouse with associated garage and outbuildings. The objector owned the adjacent listed farmhouse and held the benefit of the restriction.

The applicant had planning permission for five dwellings, three of which would be constructed on the burdened land. The objector relied on the protection of the setting of her listed house, privacy, amenity, traffic, construction disturbance and flooding concerns. The central issues were whether the restriction was obsolete, whether it impeded a reasonable use without securing practical benefits of substantial value or advantage, and whether discharge or modification would injure the objector.

1. Application allowed. The restriction was discharged under ground (a) of section 84(1) of the Law of Property Act 1925, without compensation.
2. The proposed construction of three small houses on the burdened land was a reasonable use impeded by the restriction. The evidence and site inspection showed that it would not affect the objector’s enjoyment of her property. There would be no overlooking, no identifiable new noise, and only insignificant additional traffic in the context of the existing development.
3. The restriction secured no practical benefit of substantial value or advantage within section 84(1A). Temporary disturbance during construction was not a practical benefit secured by the restriction. The flooding concerns were addressed by the existing attenuation system and the planning condition requiring approval of a surface-water drainage scheme.
4. Discharge or modification would cause no injury to the objector, satisfying ground (c). The landscape strategy and existing buildings provided appropriate separation and screening from the listed farmhouse.
5. The restriction was obsolete under ground (a). It had been imposed by a housebuilder after refusal of planning permission for substantial development, and its purpose was to preserve future development opportunities by retaining control over access and services. Development of the retained land had since been completed, fulfilling that purpose, while the character of the neighbourhood had changed substantially from rural to edge-of-town suburban.
6. In exercising its discretion, the Tribunal took account under section 84(1B) of the planning-permission pattern at Sturt Farm, the 1996 context of the restriction, the passage of more than 29 years, and the objector’s role in facilitating the subsequent development in return for remuneration and land.