There are few things more concerning than a proposal by your neighbours to extend their property in a way that may threaten the structural integrity of your home. As one case reviewed by David Watson showed, however, voicing your opposition to such a proposal via the planning system may not be the only way of making your objections count.
The owners of a terraced townhouse wished to build a three-storey extension that would increase the property’s frontage by more than 50 per cent. The works were projected to last at least six months. Although planning permission for the project had yet to be obtained, the owners’ initial enquiries as to the acceptability of the proposal had yielded a broadly positive response from the local authority.
Standing in the way of their plans, however, was a restrictive covenant contained in the title deeds to their home, which forbade alterations to its elevation or external plan without the consent of the property’s original vendor. They applied to the First-tier Tribunal (FTT) under Section 84 of the Law of Property Act 1925 to modify the restriction so as to enable the extension to be built, subject to planning consent.
However, they encountered stiff opposition from a number of neighbours who were concerned about such matters as overlooking and the extension’s aesthetic impact. They also asserted that enabling the development would create an undesirable precedent, paving the way for other similar building projects in the area.
Ruling on the case, the FTT found that, in general terms, the extension represented a reasonable use of the land. After considering the strengths and weaknesses of the objections, it also ruled that the existence of the restrictive covenant brought no discernible practical benefits to the neighbours – save one of them.
Construction of the extension would require realignment of the property’s garden and the removal and reconstruction of part of its retaining wall. That aspect of the project was a significant concern to one of the neighbours in that the wall in question was likely to provide at least some structural support to her home, which was set on a steeply sloping site.
Refusing the owners’ application, the FTT noted that, in the absence of the specialist engineering input that would be required as part of the planning process, it was not possible to say whether modification of the restrictive covenant might cause injury to that neighbour’s interests. If such input were obtained and planning permission granted, it would be open to the owners to renew their application.
Litigation Executive David Watson had this to say on the matter…
“This case helpfully demonstrates the complicated nature of restrictive covenants. The homeowner in this case objected to the application to modify the restriction however only one of their objections were upheld by the first-tier tribunal, and it is likely that the neighbours will be successful in a second application for the removal of the restriction once an experts report from a specialist engineer has been obtained. We recommend any homeowner to seek legal advice at the earliest opportunity in any case concerning a restrictive covenant”.
If you need advice and guidance on planning issues, restrictive covenants or disputes with neighbours, we can help.
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