The flexibility of binding conditions on properties
Posted on 5th December 2018
It may be possible to apply for a restrictive covenant to be varied or modified, which occasionally results in compensation being awarded to any party who has suffered as a result of the covenant being relaxed.
Development of the Land
In the matter of Thomas Pocklington Trust Limited  UKUT 0256 (LC), the Upper Tribunal had to assess whether the Applicant would be permitted to develop land into a block of flats (“the Development Land”). The Applicant was restricted by a covenant that only permitted a building that could accommodate fifty blind persons together with staff. The Applicant therefore required this covenant to be varied or modified in order to appease the title documents to permit a block of flats to be built on the Development Land.
Neighbouring the Development Land is an estate of houses (“the Estate”), some of these houses had the benefit of the restriction on ensuring that the only permitted building would be the home for the blind. A selection of the owners of the houses on the Estate voiced their concerns that relaxing the covenant on the Development Land to allow a block of flats would lead to increased activity on the Development Land, which in turn would increase noise and air pollution. The residents of the Estate argued that this would damage the quiet enjoyment of the Estate. Further, the residents of the Estate believed this to be the tip of the iceberg, and that further construction may occur on the Development Land, if the block of flats is permitted.
The Applicant’s case
The application relied on the distance between the Estate and the Development Land, consisting of 65.4m, which the Applicant submitted was twice that recognised by the local planning authority as being adequate between the faces of single or two-storey buildings. The Applicant also submitted that the impact of any air, noise or light pollution would be diminished by an intervening tree/hedge screen, and due to the Applicant proposing to locate the car park underground with a car park entrance that was a long way from the Estate.
Decision of the Upper Tribunal
The Upper Tribunal found that the block of flats would barely be visible from the Estate and found that the distance of the block of flats of 65.4m would reduce noise and light pollution. The Upper Tribunal noted that the Applicant would accommodate the concerns of the Estate with regard to noise, by constructing an underground car park. Accordingly, the restrictive covenant was modified to allow the Development Land to have a block of 40 flats, together with an underground car park, in accordance with the planning permission the Applicant had acquired.
It is clear that the Upper Tribunal had in mind what impact the construction of the block of flats would have on the Estate when permitting the Applicant’s application to modify the covenant. The Upper Tribunal appears to have been impressed with the Applicant’s efforts to reduce the noise and light pollution on the Estate, to such an extent that it did not consider the residents of the Estate would suffer any damage. It is noteworthy that the Applicant had received planning permission to build the block of flats, which had a bearing on the Upper Tribunal’s decision to modify the covenant, without the need of the Applicant making payment of compensation