Restrictive Covenant Modified to Allow Luxury Flat Development


Restrictions on the use of land often lurk in dusty old title deeds but, with the right legal advice, they can be modified to enable developments more in keeping with the modern world. Exactly that happened in one case in which the Upper Tribunal (UT) opened the way for a mansion to be demolished and replaced by a block of six luxury flats.

The mansion was one of a number of substantial homes that had been constructed on land that had been divided into building plots in the late 19th century. Most of them were subject to restrictive covenants that were designed to restrict density of development and to ensure that only homes of a certain value were built.

The particular plot was subject to a covenant, dated 1896, that dictated that only two private dwelling houses could be built on it. Its owner had been granted planning consent to demolish the mansion and build the flats, but faced determined objections from the owners of three neighbouring properties.

The objectors argued that the block of flats would be excessively large – having a floor area more than three times that of the building it would replace. The project would result in increased noise levels and traffic problems. There would also be a loss of light and privacy and other properties would be overlooked by the flats. Their primary concern, however, was that the development would be the thin end of the wedge and would encourage further planning applications. There was no dispute that the flats development would breach the covenant.

In ruling on the dispute, the UT noted that the development would be a reasonable use of the plot. Although the existence of the covenant did bring some practical benefits to the objectors, they were collectively modest. The 'thin end of the wedge' argument was undermined by the fact that there had, over the years, been numerous breaches of density covenants in the area. The covenant was modified so as to enable the flats' development to proceed.

In the Matter of An Application under Section 84 of the Law of Property Act 1925 by Pamela Theodossiades.