Right of residents of architect-designed self-build scheme to rely on restrictive covenants against extensions upheld by Upper Tribunal

01 Jan 2018

Planning and Environment

The Upper Tribunal has upheld the right of residents of a small architect-designed development built in the late 1980s and subject to restrictive covenants seeking to preserve its built form to rely on those covenants in resisting plans by one resident to extend her house.

Bartlett Close is an unusual development of 34 modest properties designed by architect Trevor Sutters around a derelict church near Mile End. All 34 properties were self-built and many were still occupied today by those that built them. A scheme of restrictive covenants had prevented any extensions or physical alterations . One resident (not one of the original self-builders) applied to add an additional storey to her 2-storey house, which was resisted by the residents Association. She obtained planning permission and applied to the UT to modify the restrictive covenants such as to allow her to extend according to the planning permission. The Association objected, supported by all adjoining owners in their individual capacities.

Following a three-day trial AJ Trott FRICS ¬†upheld the objections and declined to modify the restrictive covenants under s.84 of the Law of Property Act 1925. In particular he placed weight on the existence of a building scheme here and the fact that the estate had remained largely unchanged since its construction; on the ‘thin end of the wedge’ argument advanced by the Association in that this would be the first modification of any of the covenants; and in the particular circumstances, on the likely disruptive effect of building works given the nature of the estate.

As such, the covenants conferred on the adjacent owners ‘practical benefit of substantial advantage’ including by protecting their outlook, which was threatened by the proposals to extend no.23. Notwithstanding the planning officer’s view that there would be no undue effect on amenity (reached without visiting the site) Mr Trott found that the proposals did threaten a significant overbearing effect on the neighbouring properties, such that the relationship between them would be jeopardised; and that the proposals would be a material change to the character and form of the estate which would be contrary to the interests of the Association.

As such the statutory grounds for modifying the covenants were not made out and the application was dismissed. The judgment can be found here.

Josef Cannon acted for the residents association and adjacent landowners, instructed by Mark Eaton of HPLP.