Not in my ornamental garden! Restrictive covenants and building projects

In this case, a group of neighbours objected to the construction of a double garage, citing restrictive covenants which had been implemented in the 1980s, which prohibited the blocking of the close’s ornamental gardens. The tribunal ruled the garage construction would do that, and the application was refused. HCR’s Natalie Minott, head of dispute resolution in the firm’s Cambridge office, represented two of the objectors, Geoffrey and Pauline Coleridge.

Overview

An application in the Upper Tribunal (Lands Chamber) to discharge and modify restrictive covenants under Section 84 Law of Property Act 1925 has been refused on all grounds.

The application centred around a close of seven bungalows in Northamptonshire that had been developed in the 1980s. The owners of number three had been granted planning consent from the local authority for a new double garage extension on their existing single garage. The planning permission would relocate their entrance drive and access to their bungalow.

However, on the title deeds of all bungalows in the close were five restrictive covenants affecting the presentation, use and maintenance of the properties. At the hearing, the applicants sought to discharge two and partially discharge another on the grounds they were obsolete. They also sought to modify a covenant to permit the implementation of the planning consent as the applicants wanted to progress with constructing the double garage.

The owners of numbers four and five in the close objected to the application.

Can consent be obtained from a dissolved partnership?

The original vendors of all the properties in the close had been a partnership trading as Burfield Developments in 1986. The applicants sought to discharge covenant one, part of covenant two and covenant four on the basis that these were obsolete. These covenants required the consent of the partnership, trading as Burfield Developments for alterations to the property.

The applicants submitted that Burfield Developments had ceased to exist following the death of two of the original vendors and the only surviving vendor was elderly and not interested in opposing the application. The tribunal found that these covenants still fulfilled their original purpose and were not obsolete. Consent from the remaining vendor could be obtained and so there was no practical impediment to obtaining consent. Therefore, the tribunal found these covenants should not be discharged or modified.

What is the effect of an ornamental garden restrictive covenant?

Covenant five required:

• The maintenance as ornamental garden ground and entrance driveway of the space between any dwelling-house erected upon the land hereby conveyed and the road and/or private driveway giving access from the property into Main Street/Ringstead Road
• That no trailer, mobile home, caravan or boat should be kept or parked in such space

In determining whether covenant five should be modified to allow the implementation of planning consent, the tribunal needed to consider four questions:

Whether the proposed development was a reasonable use of land for public or private purposes

The applicants and objectors agreed that the erection of a new garage (the proposed development) was a reasonable use.

Whether the restrictive covenant impeded that reasonable use

The proposed development included both the erection of the garage and the accessway to the bungalow changing route. The restrictive covenant clearly impeded the erection of a new garage as this did not come within the meaning of an ornamental garden. However, the tribunal found that the new entrance driveway was not impeded by the covenant.

This was because the covenant did not prescribe where the space for the ornamental garden ground needed to be on the grounds of the house. This meant the new access driveway could be constructed and would not be impeded by the restrictive covenant, but the garage would be impeded.

In impeding that reasonable use, whether the restrictive covenant secured any practical benefits to persons entitled to the benefit of it

The wider relevance of the covenant in protecting the visual amenity and the environment of the close was of important practical benefit to the objectors. The tribunal found there were two practical benefits of the restrictive covenant. Firstly, the proposed development featured in the centre of the close and could be considered a focal point. Secondly, the restrictive covenants provided certainty and confidence on development, which would be a factor in the minds of prospective purchasers.

Whether the practical benefits that were secured were of substantial value or advantage

Based on a site visit, and from the evidence at the hearing, the tribunal found that the benefits secured by covenant five were of substantial advantage to the objectors and other properties in the close.

The tribunal found that covenant five should not be modified and the objection to the application was therefore successful on all grounds. The tribunal’s refusal to entertain a modification, not a discharge, to covenant five ,due to the clear practical benefits and substantial advantage of the covenant, was a firm stance from the tribunal.

This application represented a real-life example of restrictive covenants from the 1980s continuing to maintain a strong benefit to the residents and character of property developments. The tribunal found that these were not obsolete and continued to have clear value in today’s climate.

Client note

One of the objectors in the application has made the following comments about the service and outcome of the claim:

“We were excellently looked after during the proceedings, which were made all the more challenging as a result of Covid-19 lockdowns. We were very pleased with the continuity maintained following the merger of the business and the change in personnel.”

Link to the full judgement on the application can be accessed here: https://www.bailii.org/uk/cases/UKUT/LC/2021/282.html