213: Restrictive covenant which benefited garden had practical benefit to whole property

Re Copleston’s Application [2021] UKUT 18 (LC)

An application to modify or discharge restrictive covenants to allow residential development failed because the extent of the benefitting land was extended to include a neighbouring dwelling house whose amenity would be adversely affected by the proposed development.

Facts

Ms Copleston and Mr Norton owned a house with grounds. They obtained planning permission to erect a single residential dwelling on the grounds of their home but unfortunately, the grounds were burdened by two restrictive covenants:

1. not to use the land other than as a private garden / garage; and
2. not to construct any buildings other than sheds and outhouses on the land.

The land that took the benefit of the restrictive covenants was located opposite the application site (across the road). The benefiting land comprised of a dwelling and garden area but only the garden area took the benefit of the restrictive covenants (as drafted).

Ms Copleston and Mr Norton submitted an application to the Upper Tribunal to have the restrictive covenants 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 and practicable benefit or substantial advantage to the neighbouring land owner.

The owners of the benefitting land objected to the discharge of the restrictive covenants because of the adverse impact it would have to the amenity of their property (with particular focus on the residential dwelling).

Decision

Ms Copleston and Mr Norton’s application to the Upper Tribunal failed.

In considering whether the covenants secured a practical benefit of substantial benefit to the property, the Upper Tribunal observed that the whole of the land (garden and dwelling house) was acquired in 2008 and could not be marginally divided and that the benefitting land (the garden area) was a substantial part of the whole of the property. The Upper Tribunal said that:

‘The practical benefit was not limited in terms of the benefitting land but the extent to which any practicable benefit is enjoyed by those persons so entitled’.

Whilst the development would not have had an adverse impact on the garden land, it was thought that it would have an adverse effect on the dwelling house. The dwelling house could not be marginally divided from the remainder of the property and the house took the practical benefit of the covenant.