Member Article

Restrictive covenant amended to enable house building plans

Covenants restricting the use of land commonly appear on title deeds, but they often date back many years and take no account of changing circumstances. Sundeep Bilkhu, Solicitor at Sydney Mitchell LLP reports that a tribunal’s ruling, however, has shown that they are not written in stone and can be amended to ensure that scarce land supplies, particularly for housing, are put to good use.

The owners of a detached house, set in about three-quarters of an acre of grounds, had obtained planning permission to demolish a large indoor swimming pool and replace it with a new home. The property was part of an estate that was subject to a restrictive covenant dated 1963. The covenant forbade construction of more than one house on each of the original building plots that made up the estate.

Several of the owners’ neighbours objected to their plans. However, in amending the covenant so as to enable the development to go ahead, the Upper Tribunal found that the proposals represented a reasonable use of the site. Although the new house might just be visible from some neighbouring homes, it would have no substantial impact on their value. Impeding the development would bring no practical benefits of substantial value and advantage to the objectors.

This was posted in Bdaily's Members' News section by Sydney Mitchell LLP .