Restrictive covenant modified in housebuilding case

The Upper Tribunal was asked to consider modifying a restrictive covenant which restricted house building in Anne Hennessey v Gary Mark Kent.

It was held that, because the land in question was already surrounded on three sides by houses, this was a reasonable use of the applicant's land. Money could be used to compensate for any devaluation in neighbouring property and the application was granted.

The applicant was the joint freehold owner of land at Church Street, Great Maplestead, Halstead CO9 2RG which was formerly the site of a substantial house known as Treeways. The applicant purchased Treeways in 2006 but the house was largely destroyed by fire in 2011. On 23 December 2015 detailed planning permission was granted for a replacement dwelling (named High View) and for two further detached houses in what had previously been the garden of Treeways. The application land was subject to a restrictive covenant imposed by a conveyance dated 3 November 1971. The covenant restricted the number of dwelling houses that could be erected on the land.

The Upper Tribunal said that the issues for determination in the application were the following:

(1) Whether the proposed use of the application land was reasonable;
(2) Whether the restrictions impeded that use;
(3) Whether, in impeding the proposed use, the restrictions secured practical benefits of substantial value or advantage for the objector;
(4) Whether money would adequately compensate the objector for the loss of any practical benefits which were not of substantial value; and
(5) Whether, if all other issues were determined in the applicant’s favour, the Tribunal should exercise its discretion to modify the covenants and, if so, whether it should do so on terms as to compensation or otherwise.

Having considered all these issues, the Upper Tribunal determined that the restriction should be modified. Although the density restriction secured practical benefits to the objector those benefits were not of substantial value or advantage and could be adequately compensated in money.

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