When a developer obtained planning permission to demolish the existing house on a site overlooking the sea and to build three new detached houses, he had to apply for a variation to a 1955 restrictive covenant over the land which prohibited the erection of ‘any building’ on the property. The next-door neighbour objected to the application.
The land in question had once been a part of the neighbouring property. Whilst the neighbour’s bungalow and much of the land on which it stood did not benefit from the covenant, part of the garden that had been acquired some time after the property was divided did. On this land, the neighbour had built a garden room looking out over the sea and considered that the proposed development would impair the view.
The neighbour argued unsuccessfully that the law on covenants benefits the person entitled to enforce the covenant, so applied to all their property, not just the piece of land they had acquired. Although this argument failed, the Tribunal did consider that the loss of amenity for the part of the land which did carry the benefit of the covenant was sufficient to refuse the developer’s application to vary it.
The attempt to ‘stretch’ the benefit of the covenant to all the land owned by the neighbour was doomed to fail. Had it succeeded, it would potentially be possible to ‘carry over’ the conditions of a covenant to land that was never intended to have the benefit of it.
When acquiring a property for development, it is often best to negotiate with those likely to oppose the project at an early stage rather than end up fighting it out in court.
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