The Upper Tribunal (Lands Chamber) has approved an application to modify restrictive covenants under section 84(1) of the Law of Property Act 1925 to permit the demolition of a 1950s house and construction of eight flats, dismissing objections from the owners of flats at an adjoining development claiming the benefit of the covenants.
The application in HAE Developments Ltd v The Croft Ealing Ltd [2022] UKUT 120 (LC) concerned a property on Park Hill, Ealing, West London which was subject to restrictive covenants imposed in 1955 when the property was created by sale of part of the garden of the Croft, an adjoining Victorian residence standing in substantial grounds. The covenants restricted building on the land to a single dwelling house and prevented the carrying on of any trade or business or anything which constituted a nuisance or annoyance to the owners or occupiers of adjacent land.
The remainder of the Croft was developed in the 1960s to provide 11 flats and 22 maisonettes in four three-storey blocks with garages and grounds. The freeholder of the Croft and 26 of the 33 lessees objected to the application, arguing that their properties and garden would be overlooked and that the development would lead to increased noise, light pollution, cooking odours and parking congestion.
The applicant had obtained planning permission for the development in 2020 and sought the modification of the covenants on various grounds under section 84(1) of the 1925 Act, including: (a) that the restrictions were obsolete owing to changes in the character of the neighbourhood; and (c) that the proposed discharge or modification would not injure those entitled to the benefit of the covenants.
It was obvious to the UT that the pattern of planning permissions on Park Hill had allowed numerous large houses to be converted into flats and some flats to be built anew – the Croft was such an example. The proposed development was consistent with the development plan, entirely in keeping with its surroundings and consistent with the pattern of permissions nearby. The neighbourhood had changed considerably since 1955 and there was no purpose in a single dwelling house covenant to protect it.
Equally, the objectors would not be injured by modification of the covenants, which did not prevent loss of light, overlooking from the property or construction work at the property. Parking concerns were addressed by the planning permission, which restricted the number of cars at the development, and local traffic and parking regulations.
The actual extent of overlooking would be minimal, and in any event each of the properties at the Croft was already thoroughly overlooked by their immediate neighbours. While the development would mean more people next door than with a single dwelling, it was not clear that they would create more noise. More importantly, every resident at the Croft was surrounded by neighbours at very close quarters. Noise, light pollution or cooking smells from the property would be far outweighed by the same from other residents at the Croft.
The proposed development would be far more in keeping with the conservation area and surrounding houses than the present house, so there was no advantage to the objectors in preventing it.
Louise Clark is a property law consultant and mediator
