Modifying restrictive covenants: what the Upper Tribunal will look at

The practical benefits that the objectors argued the covenant preserved were:

1. protection of views from their properties; 
2. protection from being overlooked; and 
3. protection from temporary disturbance caused by construction operations. 

The Upper Tribunal made the following findings:

1. The views: The views from the objectors’ properties would not be significantly changed by the modification and the consequent development. Currently, the objectors' properties were protected by foliage and trees. The Upper Tribunal was satisfied that this would not change as a result of Mr Martin’s development. Even where an objector’s property would be able to see the new house, the Upper Tribunal was not convinced that this would be serious. When one objector stated that he enjoyed the current view whilst lying in bed, the Upper Tribunal rather curtly remarked that “we doubt [he] spends much of his time in contemplation of the view”.
    
2. Overlooking: The Upper Tribunal found that many of the objectors’ properties were already overlooked by other properties, and the addition of a further property would not materially increase this. 
    
3. Temporary disturbance: The Upper Tribunal emphasised that the value of a restrictive covenant is to provide protection from the effects of the ultimate use, not short-term disturbance caused by construction. It therefore discounted temporary disturbance from construction works as a factor. It did, however, order compensation for temporary disturbance for some of the objectors, on the basis that their properties would be affected by disturbance to roadsides and grass verges bounding their properties. 
    
4. The “thin end of the wedge” argument:  Whilst this is a valid consideration for the Upper Tribunal to take into account, in these circumstances, there was no real threat by this application. The Upper Tribunal emphasised that each such application is taken on its own merits and just because it granted this application would not mean that it would grant future applications relating to the estate. The Upper Tribunal went into some detail looking at other applications that might be made on the estate and concluded that it was unlikely that such other applications would be made, and if they were, would be unlikely to affect the overall character of the estate. In particular, the Upper Tribunal did not think that the granting of the application would lead to a greater risk of “back land” development. In conclusion, the scheme of covenants would not be “materially undermined” by the modification. 

What can we learn from this case?

Although this case concerned only one extra dwelling, it is a useful illustration of how the Upper Tribunal will look at an application to modify a restrictive covenant. In particular, it will look very carefully at arguments by objectors that modification will affect their views and constitute a “thin end of the wedge,” effectively opening the floodgates for further modifications or discharges. The Upper Tribunal would require clear evidence that it would, rather than general statements by objectors. 

Finally, it is also worth noting that although the Upper Tribunal will not look at protection from temporary disturbance (from construction operations) as a ‘practical benefit’ that ought to be taken into account, it may well order compensation for such disturbance as part of any modification or, indeed, discharge.