Key Facts
- •Restrictive covenant prevented extensions to a bungalow at 7 Redwood Grove, Bude without prior approval.
- •Current owners (Rogers) built extensions in 2018, breaching the covenant.
- •Objectors (Dinshaw brothers) inherited the benefited land from their father.
- •Applicants sought discharge of the covenant under section 84 of the Law of Property Act 1925.
- •The extensions were relatively modest and did not require planning permission.
Legal Principles
Section 84(1) of the Law of Property Act 1925 allows the Tribunal to discharge or modify restrictive covenants under certain conditions (a, aa, b, c).
Law of Property Act 1925, Section 84(1)
For a covenant to be enforceable by a successor in title, it must affect the nature, quality, mode of user, or value of the land.
P&A Swift Investments v Combined English Stores Group Plc [1988] UKHL 3
A covenant prohibiting building without approval implies that consent will not be arbitrarily or capriciously withheld, nor withheld for improper motives.
Mahon v Sims [2005] 3 E.G.L.R. 67
Compensation under section 84(1) is assessed by reference to the diminution in value of the benefited land.
Stockport Metropolitan Borough Council v Alwiyah Developments [1986] 52 P&CR 278
Outcomes
Modification of the covenant to allow retention of the extensions.
Grounds (aa) and (c) of section 84(1) were satisfied; the covenant impeded a reasonable use of the land and the objectors would not be injured by the modification. Ground (a) (obsolescence) and (b) (acquiescence) were not satisfied. The Tribunal considered the applicants' lack of awareness of the covenant and their lack of intent to profit unduly.