High View or no view? – An unusual case of restrictive covenants for developers

The Upper Tribunal has decided that a restricted covenant should be modified to allow a building development to go ahead despite a neighbour objecting on the grounds his view of the English countryside would be ruined.

The case is an interesting one for developers. Finding a seemingly perfect potential site only to discover there is a restrictive covenant preventing or limiting development is far from unusual.

Often, the easiest way round the issue is to take out indemnity insurance without even looking into whether the covenant is enforceable, especially when it's so old nobody knows who has the benefit of it anyway.

But if an objector claims the benefit of the covenant, insurance is unlikely to be available and negotiating a release can be expensive and unpredictable.

That's why a recent case in the Upper Tribunal (Lands Chamber) is so interesting as it seems to show that applying for a modification of the covenant might be well worth considering.

What happened in this case?

After Mrs Pauline Hennessey's home in Essex was gutted by fire in 2011, she decided to replace it with a grander version, called High View, plus two further detached houses in the garden of her property and obtained planning permission for work to start in December 2015.

Complicating things was a restrictive covenant imposed in 1971 when the property and land was owned by Mrs Hennessey's predecessor. This prohibited the erection of more than a single dwelling house ('the density restriction') and required her to obtain prior approval of her plans from the beneficiaries of the covenant.

In a bid to overcome this problem, and on the grounds the covenant would impede her reasonable use of her land, she applied to the Upper Tribunal (Lands Chamber) for its modification to permit her works to go ahead relying on the grounds that:

• The restriction did not secure practical benefits of substantial value;
• Money would be an adequate compensation for any loss arising from the modification of the covenant.

Opposition

Neighbour Mr Gary Kent, who owned a nearby bungalow, opposed the plans on the grounds that High View would obstruct his own view of the countryside out to Castle Hedingham, home to one of the best preserved Norman keeps in England.

But as this view was from one window in the loft, the Tribunal ruled that although the density restriction secured a practical benefit to Mr Kent, it could not be considered substantial and could therefore be compensated by an award of five per cent of the value of his home, amounting to £21,000.

Other points of interest

Heavy handed with the Leylandii

After a discussion in 2012 with Mr Kent, when he expressed his concerns, Mrs Hennessey planted a screen of Leylandii trees, famous for being extremely fast growing, on the edge of her land which effectively blocked Mr Kent's view.

The Tribunal deemed this 'an unneighbourly act' but accepted Mrs Hennessey did not flout any legal obligation and as a result, it did not affect her case for the covenant to be modified. In short, Mr Kent had no right to his view and Mrs Hennessey was perfectly entitled to block it with her new home, High View.

Limitation on possible future use of Mrs Hennessey's High View

Mr Kent expressed his concern that High View might be used as a care home in the future, which he said would have a much greater impact on him that the current plans. The Tribunal appreciated these worries and was not persuaded by Mrs Hennessey's assurances to the contrary.

As a result, it ordered that the covenants be modified to permit the development but to ensure that no dwelling house constructed on the land be used as a care home or anything other than a single private residence in the future.

Costs - no winners

The tribunal decided to make no order on costs. Although Mrs Hennessey had successfully applied to modify the restrictive covenant, Mr Kent had not behaved unreasonably so she was not entitled to recover any part of her costs from him.

And although Mr Kent maintained, because he had received £21,000 compensation, Mrs Hennessey should pay his costs, the tribunal didn't accept this either on the basis that it would be wrong to conclude he was the successful party when the tribunal ultimately concluded the restriction should be modified.

For more information about restrictive covenants and this area of the law, please contact James Murray, Building Dispute Solicitor for more information.