Application to Modify Restrictive Covenant Succeeds

The Upper Tribunal (UT) has granted a social housing provider's application to modify a restrictive covenant so as to allow it to proceed with a residential property development.

The relevant land was sold in 1975 subject to a conveyance limiting its use to the provision of retirement housing. The social housing provider that currently owned the land was of the view that such accommodation was no longer viable, and had obtained planning permission for a residential development on the site. It applied to the UT under Section 84(1) of the Law of Property Act 1925 to modify or discharge the restrictive covenant in the conveyance, on the grounds that the requirement that the site be used for retirement housing was obsolete and impeded reasonable use of the land.

A number of occupiers of nearby houses objected to the application. Many objections were based on the need to provide accommodation for elderly people in the area. Objectors also argued that the original purpose of the covenant remained valid.

The UT noted that the purpose of the restriction was not to guarantee that the land would be used to accommodate older people, but to prevent its use for any other purpose. The aim of the restriction could still be achieved and it was not obsolete.

However, the UT was satisfied that the proposed use of the land was a reasonable one. The UT agreed with the social housing provider's assessment of the impact, in terms of noise and number of visits to it, of the land being used to accommodate people of any age, rather than exclusively people of retirement age. It also noted that the proposed development was designed to mirror the previous accommodation in terms of footprint and height. Concluding that the restriction secured no practical benefits of substantial value or advantage to the objectors, the UT ordered modification of the covenant to provide that the land could not be used other than for residential and ancillary purposes.

The UT also discharged a requirement to obtain the vendors' written consent to the construction or alteration of buildings on the land: this could not be achieved, the original vendors having died, and the requirement was therefore obsolete.