Barr Ellison acted on behalf of Broadway Homes (Cambridge) Limited who were successful in their application to modify a restrictive covenant which otherwise prevented their redevelopment of a site in Cambridge.
In 2013 Broadway had acquired number 38 Almoners’ Avenue, Cambridge, a larger than average corner plot in a 1960s housing estate to the south of Cambridge. One dwelling house sat upon the plot. Broadway saw the potential for redevelopment. They sought planning permission for demolition of the existing dwelling and erection of three houses in 2013 but that was refused. A fresh application was submitted in 2014 to build two detached dwelling houses in place of the existing one. Planning permission for that was granted upon appeal.
The Restrictive Covenant
The site was subject to a restrictive covenant which amongst other things prevented use other than as a single private dwelling house. It did not, however, prevent the building of a very large extension or the demolition and erection of a very large house. This had been imposed by the original owners of the land, Guy’s and St Thomas’ Hospital, which still own tracts of land in the vicinity. The covenant bound the original purchaser and their successors in title and thus Broadway. The covenant was expressed to be for the benefit of the Cherry Hinton Estate. It was clear from the planning process that neighbours would object should Broadway attempt to build in breach of the covenant. Further, building in the face of a covenant may prejudice any subsequent application for release or modification made to the Upper Tribunal under Section 84 of the Law of Property Act 1925.
In such cases often attempts are made to negotiate a release with those who hold the benefit of the covenant. This was not a realistic option as the identity of all beneficiaries could not readily be determined in this case.
The Application for Release
An application was made to the Upper Tribunal for the release or modification of the covenant to enable the development to proceed. This was met with objections from 10 landowners claiming to have the benefit of the covenant. The objectors were amongst other things concerned to maintain the character of the neighbourhood, to avoid increased traffic, parking problems and had worries about the environment. The majority of their properties were subject to a similar covenant.
Broadway relied upon expert evidence which concluded that Broadway’s plans would have no negative impact on the value of the surrounding dwellings. There had already been other developments in the locality in breach of covenants.
At trial only modification of the covenant was pursued. The Tribunal considered the Section 84 factors.
The covenant impeded a reasonable user of the land. Planning permission was relevant but not decisive as to reasonable use. Cambridge is undergoing substantial growth. The development accorded with the city plan.
It was found the covenant did not secure practical benefits of substantial value or advantage to the Cherry Hinton Estate as a whole. As to the individual properties, it was those in Almoners Avenue upon which the effect of the development would be more pronounced in terms of increased traffic.
The Tribunal awarded varying levels of compensation. Those closest to the development who were likely to have a more marked increase in traffic received more. That awarded to the immediate neighbour reflected the Tribunal’s assessment as to the effect of the development on value partly owing to shadowing and partly owing to there being two houses next door rather than one. Compensation was awarded to four properties totalling £35,000. Upon payment of the compensation the covenant was modified to permit the development to proceed.
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Barr Ellison acted in a successful application to modify a restrictive covenant for a developer which otherwise prevented their redevelopment of a site in Cambridge.
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It is a strict requirement that a party needs to be in compliance with all conditions precedent before serving a notice to complete a property transaction.
Appellants would be well advised to take care when introducing new evidence to a planning appeal, ensuring that it is available in good time for public inspection, usually via the local authority’s website.