Domestic gardens, which many people view as the glory of British suburbia, present a tempting prospect to builders amidst burgeoning housing demand. As one case showed, however, objectors to such developments are by no means powerless.

The owners of a semi-detached house obtained planning permission to build a new four-bedroom home in its garden. That, however, was not the end of the matter in that the property’s title deeds contained a restrictive covenant which forbade use of the proposed development site for any purpose, save that of a private garden. The covenant also prevented construction of buildings on the site other than a garden shed, summerhouse, conservatory, greenhouse or private garage.

With a view to implementing the planning permission, the owners applied to the Upper Tribunal (UT) under the Law of Property Act 1925 for an order varying or discharging the covenant. However, they faced concerted opposition from neighbours who opposed the development on various grounds.

The owners argued that the covenant impeded use of the site for a purpose that, in the light of the planning permission, should be deemed reasonable. They submitted that, since the covenant was created in 1960, the character of the neighbourhood had substantially changed due to increased housing density.

In rejecting the application, however, the UT found that the covenant still served a useful purpose and was not obsolete. It afforded practical benefits of substantial value or advantage to adjoining neighbours in that it protected them from overlooking, also preserving their views and the peace and quiet of their home.


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