209: Crossing a building line in breach of restrictive covenant

Creebray Limited v Deninson [2020] UKUT 262 (LC)

An application by a developer to discharge or modify a restrictive covenant, which prevented a house being built in front of a building line, failed as the restriction was still of practical benefit to the adjoining landowner.

Facts

The developer, Creebray Limited, wished to build on its land a six bedroom house over three levels including a triple garage and gym. It was to be built on the footprint of a smaller house which had now been demolished.

Creebray had obtained planning permission, but the plot of land was subject to the following restrictive covenant in favour of the adjoining land which would be breached by the new dwelling:

‘no buildings shall be placed near to the road in front of the said land than is indicated by the building line shown on the said plan except garden sheds or garage or greenhouse not more than fifteen feet high’.

Creebray applied to have the restrictive covenant discharged or modified under the Law of Property Act 1925 on the ground that it impeded the reasonable user of the land and did not secure any practical benefit of substantial value or advantage.

The Deninsons, who owned the adjoining house with the benefit of the restriction, objected to the discharge of the restriction because of the detrimental effect it would have on their property. They argued that the building line protected their privacy and their view of ‘a leafy outlook to the south without sight of buildings’.

There was a seven metre high beech hedge that ran along the edge of the Creebray’s plot which may have screened the new house from the Deninson’s view . The Deninsons argued that even with the hedge, the new property would overlook their home, adversely affect their privacy and impact the value of their property.

Decision

The Upper Tribunal (Lands Chambers) looked at the following issues:

•  Whether the proposed use of Creebray’s land was reasonable – The building of a house on the Creebray’s plot was seen to be reasonable and desirable. The proposed house was large and could be overbearing, but it had planning permission and its construction was regarded as a reasonable use of the land.
• Whether the covenant impeded that use – It was not in dispute that the building of the new house would be in breach of the restrictive covenant. However, the covenant impeded the reasonable use of the land for the building of a new house.
• Whether the impeding of the proposed use secured practical benefits of substantial value or advantage for the objectors, the Deninsons – The key issue was whether the restrictive covenant secured a practical benefit to Deninsons which was still of substantial value or advantage. The Tribunal held that the building line did protect the quiet leafy outlook and privacy of the Deninson’s house which was a substantial advantage and of practical benefit. The whole character of the Deninons’ property would be changed if the new house was built.

The protection from the hedge very much depended on whether it was summer or winter, and was ‘too precarious to be relied upon’. The character of the Deninsons house would be changed if the view in front of their house now included a three storey house and this is what the building line in the restriction was designed to protect.