Tribunal Paves the Way for Suburban Garden Development

Restrictions on land use appear in the title deeds of many properties – but the law permits their deletion or modification if they become obsolete over time or stand in the way of reasonable development. Exactly that happened in one case in which the Upper Tribunal (UT) opened the way for construction of three new homes in a large suburban garden despite neighbours' objections.

The garden once formed a large field on the outskirts of a major city. Part of it was subject to a restrictive covenant, dated 1928, which forbade construction of more than three detached homes on the field. Those homes had long since been built. A further covenant, dated 1929, affected another part of the garden and required that any house built on that plot must have direct frontage to a public road.

A couple who owned one of the detached houses were granted planning consent to construct three houses on their land. It was accepted that two of the properties would breach the 1928 covenant and that the third was precluded by the 1929 covenant. In those circumstances, the couple applied to the UT to discharge or modify the covenants so as to enable the development.

In ruling that the 1929 covenant was obsolete, the UT noted that it did not amount to an absolute prohibition on house building. Due to the city's expansion during the 20th century, the area had been absorbed into the urban area. The covenant had already been breached by a previous construction project and the protection it was designed to afford had been significantly eroded. It was therefore discharged, enabling construction of the third house.

Despite neighbours' concerns that their sunlight and views would be harmed, the UT found that, by impeding development of the other two homes, the 1928 covenant did not secure any practical benefits of substantial advantage to objectors. The covenant was modified to the extent required to permit the development. The modification would take effect on the couple paying a total of £15,000 in compensation to the owners of two properties whose value would be affected by the project.

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