Case law has swung over the years favouring first developer and then neighbouring landowner in respect of the enforceability of restrictive covenants, and their ability to prevent, ultimately, development of land. Darren Millis, Commercial Property Partner highlights a recent case which demonstrates the difficulties of enforcing restrictive convenants to prevent development.
The rules differ for respect restrictive covenants imposed prior to 1 January 1926 (and the advent of the modern system of registered land) and restrictive covenants imposed and registered after that date, the task for the landowner wishing to prevent development being that little bit more difficult for restrictive covenants imposed prior to 1 January 1926.
The current ‘zeitgeist’, as far as case law is concerned, is shown in the recent Lands Tribunal decision in Sutton and East Surrey Water plc v Kilby and others which decided an application by a developer under section 84 of the Law of Property Act 1925 for the discharge of restrictive covenants (imposed in 1910) which prevented construction of buildings on an area of reservoir land.
Several neighbours sent in objections to the Lands Tribunal against the discharge of the covenants on the basis that they had the benefit of the covenants.
The Lands Tribunal provided an excellent refresher of the rules as they relate to pre-1926 restrictive covenants by saying that “in order for the benefit of a pre-1925 covenant to pass to successors in title of the original covenantee it must be shown that the following requirements are satisfied: (a) the covenant must touch and concern the land of the original covenantee; and (b) the benefit must have passed to the original covenantee’s successors in title by annexation, if there is no evidence of express assignment.”
In the current instance, the neighbouring landowners could not benefit from the restrictive covenants as the benefit had not passed to them expressly (by way of a Deed) or by words of annexation in any deed subsequently. The Lands Tribunal also held that the area of land to benefit from the restrictive covenants was not sufficiently clear.
I would view this case with caution in mind. It is indeed, in practical terms, sometimes more difficult to establish that land has the benefit of pre-1926 restrictive covenants, but in my view it is “lazy” to assume that the age of the covenant means that the covenants are any less effective than those imposed after 1926. In development terms each covenant should be looked at in its own terms and with an eye to the implications of breach.