Fosse Urban Projects Limited v Robert Whyte & Ors
[2023] UKUT 286 (LC)
Michael Lackey v John Pearce & Anor
17 July 2024
[2024] UKUT 189 (LC)
Upper Tribunal
Someone wanted to build a new house in their garden, but an old rule stopped them. The court looked at if the area had changed enough to make the old rule irrelevant. The area hadn't changed that much, so the court said no new house.
Key Facts
- •Mr. and Mrs. Lackey applied to modify a restrictive covenant to build a new dwelling in their garden at 14 Penina Avenue, Newquay.
- •The covenant, dating back to 1973, restricts building to the existing dwelling house.
- •Cornwall Council granted outline planning permission for the new dwelling.
- •Mr. and Mrs. Pearce, neighbours at 16 Penina Avenue, objected.
- •The application was made under section 84(1)(a) of the Law of Property Act 1925, based on the argument that the restriction is obsolete due to changes in the neighbourhood.
- •A J Luxon Ltd, the original vendor, approved the plans.
Legal Principles
Section 84(1)(a) of the Law of Property Act 1925 allows modification of a restrictive covenant if, due to changes in the character of the property or neighbourhood, or other material circumstances, the restriction ought to be deemed obsolete.
Law of Property Act 1925, Section 84(1)(a)
In determining obsolescence under section 84(1)(a), four connected matters should be considered: (1) the covenant's purpose; (2) changes in property/neighbourhood character; (3) whether the restriction's objective is unattainable due to those changes; (4) other material circumstances rendering the restriction obsolete.
Re Fermyn Wood [2018] UKUT 0411 (LC)
Outcomes
The application to modify the restrictive covenant was refused.
The Tribunal found that the original purpose of the restriction was to maintain the lower density and spaciousness of the Mellanvrane Lane Estate. While some changes occurred in the wider neighbourhood, the character of the Mellanvrane Lane Estate largely remained the same. The restriction's objective of maintaining spaciousness within the estate was still achievable. Therefore, the restriction was not deemed obsolete.