Mr Holden owns a house on an estate of approximately 30 houses. He has a detached garage which he has converted to use as a dog grooming parlour.
When he bought his house in 2012, Mr Holden agreed to a number of restrictive covenants:
- not to carry on any trade or business;
- only to use his house as a single dwelling house;
- not to park any commercial vehicles; and
- not to display any signs or notice on the property
Mr Holden therefore applied to the Upper Tribunal (Lands Chamber) in 2018 for these restrictions to be discharged on the grounds that they were either obsolete (ground (a) of section 84(1)) or that their discharge would not injure the persons entitled to the restriction (ground (c)).
Mr. Holden had notified his neighbours on the estate but none chose to object to the application. His application was therefore heard by way of written representations.
The Tribunal first considered whether the restrictions were obsolete as they had been entered into by Mr. Holden himself less than four years before he made his application – which was described as “astonishingly recently”. His argument on this ground was not surprisingly rejected.
The better argument was that the discharge would not injure persons entitled to the benefit of the restrictions. Mr. Holden made the point that none of his neighbours had objected to his activities.
Despite this, the Upper Tribunal considered the fact that a discharge would give carte blanche to a future owner of his property for any business use which might be more likely to injure the neighbours.
However, it decided that a limited modification was justified. This modification was personal only to the applicant.
Caution: fact sensitive issues
The Upper Tribunal exercises its discretion carefully and weighs all the facts. In this case it was not impressed by the obsolescence argument based on a recent restriction, nor did it simply rely on the absence of neighbours’ objections to wave through the application. It considered the facts and the implications of a discharge or modification before making its decision.
Why is this case important?
The decision shows that an applicant bound by a recent restriction will have an uphill struggle under ground (a) unless there is real evidence of a relevant change in character to the neighbourhood.
It also highlights that the Tribunal will not simply give the nod to an unopposed application and will consider carefully whether a modification of a covenant is a better solution than a discharge which might give carte blanche to future owners.
If you have any questions concerning this case or restrictive covenants generally, please contact Wendy Miller (Wendy.Miller@bclplaw.com).