Antique restrictive covenants are found in the title deeds of many period properties and can have a deadening effect on development opportunities. However, as an Upper Tribunal (UT) ruling showed, they are not written in stone.

A large suburban house was subject to a number of restrictive covenants, some of which dated back to the Victorian era. One of them forbade construction of more than one dwelling on the plot. A developer had obtained planning permission to demolish the house and replace it with a block of eight flats.

Being unable to proceed with the project whilst the covenant remained in place, the developer applied to the UT under Section 84(1) of the Law of Property Act 1925 to discharge it. The application was fiercely resisted by residents of a neighbouring property, which had itself been converted into flats in the 1960s.

The objectors argued that, despite its age, the covenant continued to serve a useful purpose in preserving the character of the locality. They asserted that the proposed new block would lead to increased noise, light pollution, cooking odours and parking congestion. They calculated that, if the development proceeded, the value of their homes would be collectively diminished by over £500,000.

Ruling on the matter, the UT noted that, when the covenant was entered into, most of the houses in the area would have been in single-family ownership. At the time, flats would have been viewed as poor-quality, overcrowded accommodation. The perception of flats had fundamentally changed in the decades since and the area had seen a large number of apartment developments.

Finding the covenant obsolete, the UT noted that the proposed development was not only consistent with the local development plan but in keeping with its surroundings and consistent with the pattern of planning permissions nearby. The objectors’ homes were already surrounded by blocks of flats and maisonettes and, in those circumstances, the covenant had become entirely superfluous.

The proposed use of the property to provide much-needed housing was reasonable and, if the intention of the covenant was to preserve the character of the area as it was at the time, that battle had long ago been lost. Disadvantages feared by the objectors were in any event illusory and there was therefore no basis on which compensation could be awarded. The covenant was discharged.