Application for modification of covenant refused in fire damage case

An application failed for the modification of a restrictive covenant for the redevelopment of the site of a former house destroyed by fire, even though planning consent had already been secured. This was the finding of the Upper Tribunal in Briant v Baldacchino.

The applicant, Nigel Briant, wished to redevelop his property, Smugglers Hyde. He had obtained several planning permissions that enabled him to do so in various ways but in each case he was prevented from doing so by a restrictive covenant that was imposed under a transfer of the application land. The covenant was “not to erect any further building of any kind on the property hereby transferred save for an extension to the existing garage . . .”.

Smugglers Hyde was badly damaged by fire in 2007.  It was purchased by Mr Briant in March 2009.  He subsequently demolished parts of the building but some of it remained. Since he purchased Smugglers Hyde, Mr Briant made 24 planning applications for residential development, 11 of which were granted (including one on appeal), 12 refused and one withdrawn.

Having failed to reach agreement with Mr Baldacchino about the redevelopment of Smugglers Hyde, Mr Briant applied to the Tribunal on 24 April 2019 under section 84 of the Law of Property Act 1925 for the modification of the restrictive covenant to enable one or more of the planning permissions to be implemented, which were for the development of a larger detached house, or two houses, or on different parts of the land to the original house.

Ultimately, the Upper Tribunal refused to grant an order for the modification of the restrictive covenant that prevented the redevelopment of the land, despite the planning consents already granted, because the restriction secured to the objector practical benefits of substantial advantage. The Tribunal commented that “the pattern of planning decisions indicates the application land is suitable for residential redevelopment and a more modest proposal, reflecting (but not necessarily replicating) what was on the application land before is more likely to succeed”.