A homeowner has successfully argued before the Upper Tribunal (UT) that an application by the owner of adjoining land to modify a restrictive covenant should be refused.

A small cottage had originally stood on the adjoining land, but had been badly damaged in a fire in 2007 and had since been largely demolished. The owner of the land had a number of proposals to develop it, some of which had been granted planning permission. Standing in his way, however, was a restrictive covenant which largely prohibited further development on the land.

He applied to the UT under Section 84(1) of the Law of Property Act 1925 to modify the covenant on the grounds that the restriction impeded reasonable use of the land, and that its removal would not injure those entitled to benefit from it. The homeowner resisted the application.

The UT noted that the homeowner, having purchased his property in 2014, had never had any neighbours on the adjoining land. It was therefore important to focus on the additional impact that would arise beyond the use of the land for a single dwelling in accordance with the covenant.

The owner of the adjoining land had proposed developing it in two separate plots. Considering the plot nearer to the homeowner's land, the UT concluded that the development proposals were significantly larger than the original cottage and were situated too close to the homeowner's land. The covenant secured practical benefits of substantial advantage to the homeowner and the UT had no jurisdiction to modify it to allow development on the plot.

The UT observed that any development on the plot further from the homeowner's land would leave uncertainty as to what would happen with the nearer plot in the future. In impeding development of the further plot, the covenant also secured benefits of substantial advantage to the homeowner. The application was refused.