Anthony Rogers & Anor v Michael Dinshaw & Ors
[2024] UKUT 1 (LC)
Sean Denis Doherty & Anor v Alexander Paskhin
10 August 2023
[2023] UKUT 196 (LC)
Upper Tribunal
Someone wanted to add a small extension to their house but a rule stopped them. A judge said the rule didn't matter anymore because there was a plan to protect the neighbour's house from any problems during construction, so they were allowed to build the extension.
Key Facts
- •Application to discharge or modify a restrictive covenant preventing alteration of the exterior appearance of 4 Kerfield Place, London, and construction of additional buildings.
- •Applicants sought to erect a single-storey rear extension and loft conversion with rear dormer roof extension.
- •Covenant contained in a 1984 transfer for the benefit of the London Borough of Southwark and other purchasers.
- •One objection received from the adjoining property owner, Mr. Pashkin.
- •Applicants obtained certificates of lawfulness from the Council for the proposed works.
- •A party wall award was made, but Mr. Pashkin still objected due to concerns about structural damage.
- •The Council issued a deed of release from the restriction.
Legal Principles
Tribunal can discharge or modify restrictive covenants under Section 84 of the Law of Property Act 1925.
Law of Property Act 1925, Section 84
Grounds for discharge or modification include obsolescence, impediment to reasonable use, agreement by those with benefit, and no injury to those with benefit.
Law of Property Act 1925, Section 84
When considering ground (aa), the Tribunal must consider whether the restriction secures practical benefits of substantial value or advantage and whether money provides adequate compensation.
Law of Property Act 1925, Section 84(1A)
The Tribunal must consider the development plan, planning permission patterns, and the context in which the restriction was imposed.
Law of Property Act 1925, Section 84(1B)
Party Wall etc. Act 1996 provides mechanisms for resolving disputes and securing compensation for damage during construction.
Party Wall etc. Act 1996
Outcomes
Application granted. The restrictive covenant modified to permit the proposed works.
The Tribunal found that the restriction did not secure any practical benefits of substantial value or advantage to the objector, given the party wall award and the offered indemnity against potential costs.