Restrictive covenant modified but no sum awarded

In an application for the modification of restrictive covenants under section 84 of the Law of Property Act 1925, the applicants (Mr and Mrs Jackson, who were the freehold owners of Old Hazelwood Green Farm)

wanted to modify a restrictive covenant so they could convert a dilapidated Dutch barn and farm outbuildings into two houses, with garages. In Jackson & Anor v Roselease Ltd, the proposed development was permitted development under the Town and Country Planning (General Permitted Development) (England) Order 2015, and was granted prior approval, subject to conditions. The development could not be carried out without either the consent of the objector pursuant to covenants imposed on the applicants’ land, or the modification of those covenants. The objector in this case was Roselease Ltd, which owned 26 acres of land to the east and south of the applicants’ land.

The applicants’ property was within the green belt, in an area of farmland, villages, and isolated houses. Old Hazelwood Green Farm was bounded to the north and west by roads. The nearest house was Hazelwood Green House immediately to the west. Mr Fitzpatrick, the sole director of the objector company, lived in Malt House Farm, some 500 metres to the north east. The applicants bought their property in 2016.

The applicants argued that the covenants should be modified on the basis, first, of section 84(1)(c), and in the alternative of section 84(1)(aa). The Upper Tribunal (Lands Chamber) took the view that the proposed development would cause no injury to the objector, and that ground (c) was made out. The Tribunal went on to consider ground (aa). The questions it had to ask itself were whether the proposed development of the land was a reasonable use of the land for public or private purposes, whether the covenants impeded that use, whether the covenants secured to those who benefit from them any practical benefits of substantial value or advantage and, if not, whether money would be an adequate compensation for any loss or disadvantage.

There was no planning permission in this case because the 2015 Order permitted the development so there was no presumption that the proposed use of the application land was reasonable. The existence of permitted development rights arguably indicated that the proposed use was reasonable, since it furthered a planning policy to provide homes by making use of disused and redundant buildings.

On a common-sense basis, the Tribunal said that the use of derelict buildings for housing appeared to be reasonable, as did the conversion of unsightly structures into new buildings that were in keeping with their surroundings. It had no hesitation in finding that the use, impeded by the covenants, would be reasonable.

In preventing the proposed development, the restriction did not secure to the objector any practical benefit. Indeed, the evidence indicated that the conversion of the barn into two dwellings could enhance the value of the part of the 26 acres nearest to the new houses and gardens. The objector would not suffer any loss or disadvantage and therefore there was no need to consider whether any such loss or disadvantage would be compensated by money. Accordingly, the Tribunal determined that the restrictive covenants should be modified to permit the development.

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