A landowner has succeeded in lifting a restrictive covenant preventing the construction of new houses on the edge of a village.
The case involved a woman who bought a large plot containing only one house. That house was destroyed by fire a few years after the purchase.
In 2015, she sought planning permission for a replacement dwelling and for two further detached houses in what had previously been the garden of the property.
However, the land was subject to a restrictive covenant that prohibited the erection of more than a single house.
The landowner relied on the Law of Property Act 1925 to assert that the continued existence of the restriction would impede a reasonable user of the land for private purposes.
Her application was opposed by a neighbour because one of the proposed new houses would be 52 metres from his bungalow. His case was that the restrictions secured him substantial benefits by protecting the view from his bungalow, preventing overlooking from the proposed new houses and preserving peace and quiet.
The bungalow enjoyed a location at the edge of the village with open land beyond; its views and setting were protected by the restrictions, with the result that the bungalow enjoyed tranquillity and a feeling of spaciousness that would be lost by the development of the applicant’s land.
The Upper Tribunal (Lands) found in favour of the landowner. It held that her planning application was reasonable, and the restriction should not be allowed to impede it. The neighbour would lose some benefit and his bungalow would be devalued by 5% but he could be compensated for that.
The tribunal lifted the restriction and awarded the neighbour £21,000, representing 5% of the value of his bungalow.
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Case featured:
Tribunal lifts covenant preventing construction of new houses
[2017] UKUT 243 (LC)
PAULINE ANNE HENNESSEY v GARY MARK KENT (2017)
UT (Lands) (Martin Rodger QC, AJ Trott FRICS) 29/09/2017