Restrictive Covenant Varied to Allow Development to Proceed


Thousands of detached homes are subject to restrictive covenants that protect their grounds from development. However, as one case illustrated, the world moves on and, with the right legal advice, such restrictions can be lifted or modified if they no longer serve a useful purpose.

The case concerned a housing estate consisting of 11 homes constructed in the early 1980s. All of the properties were subject to mutually enforceable covenants requiring that only one detached dwelling should be constructed on each plot. A couple that owned one of the houses wished to sell half their garden to a developer with a view to construction of a new four-bedroom house and garage.

Planning permission had been obtained for the project but, in order to bring their plans to fruition, the couple had to apply to the Upper Tribunal (UT) for the covenant to be modified. Objections were, however, received from other residents on the estate, in particular an elderly couple who were concerned that the new house would mar the unspoilt rural views they had enjoyed for more than 35 years.

In amending the covenant so as to enable construction of the new house, the UT rejected claims that it would create a precedent, encouraging other residents to develop their gardens. The house would be set well back, would be in keeping with the existing street scene and would not materially damage the elderly couple’s views. In recognising that the covenant did have some practical benefit to the pensioners, however, the UT directed that they should be paid £12,000 in compensation before the modification took effect. Another resident was awarded £1,000 on the same basis.

Drummond & Anr v Bastow & Ors