Anthony Rogers & Anor v Michael Dinshaw & Ors
[2024] UKUT 1 (LC)
Nigel James Rutherford Briant v Hugo John Baldacchino
6 June 2024
[2024] UKUT 164 (LC)
Upper Tribunal
A homeowner wanted to build more houses on his land, but a contract from 1987 stopped him. He asked the court to change the contract. The court said no, because letting him build the bigger houses would take away the peace and quiet of his neighbor's garden, a benefit worth protecting.
Key Facts
- •Second application by Mr. Briant to modify a restrictive covenant preventing development of his land (47 Brook Lane).
- •Land previously housed Smugglers Hyde, destroyed by fire.
- •Covenant prevents further building except for garage extension.
- •Applicant proposes various developments (one or two houses), some without planning permission.
- •Objector, Mr. Baldacchino, opposes the application.
- •Previous application refused in 2020 (Briant v Baldacchino [2020] UKUT 0206 (LC)).
- •Four proposals with planning permission were considered.
- •Applicant represented himself; Objector represented by counsel with expert evidence.
Legal Principles
Section 84(1) of the Law of Property Act 1925 allows the Upper Tribunal to modify restrictive covenants.
Law of Property Act 1925, Section 84(1)
Under s.84(1)(aa), modification is permitted if the restriction impedes reasonable land use and secures no substantial practical benefit.
Law of Property Act 1925, Section 84(1)(aa)
Under s.84(1)(c), modification is permitted if it doesn't injure those benefiting from the restriction.
Law of Property Act 1925, Section 84(1)(c)
The Tribunal considers the development plan, planning permission patterns, restriction creation context, and other material circumstances (s.84(1B)).
Law of Property Act 1925, Section 84(1B)
Outcomes
Application to modify the covenant refused for both Plot A and Plot B.
The Tribunal found the covenant secures substantial practical benefits to the objector by preventing the proposed developments (due to size, proximity, and potential impact on amenity), and therefore lacked jurisdiction to modify it.