A RECENT case has highlighted the potency of restrictive covenants and their ability to scupper development if they aren’t dealt with.

In George Wimpey, Bristol and Gloucestershire Housing Association, both the national housebuilder and the housing association applied to the Land Tribunal to have a restrictive covenant discharged which prevented buildings being built on their land.

They wanted the covenant to be discharged on the grounds set out in Section 84(1) of the Law of Property Act 1925, that it impedes some reasonable use of the land and either does not secure any practical benefit of substantial value or advantage or is contrary to public interest and money would be adequate compensation to those disadvantaged.

Wimpey Homes owned the land and transferred two small pieces to the housing association. The local authority granted planning permission for the development in 2006 and Wimpey began works in 2007.

Objectors to the development, benefiting from the covenant, instructed solicitors to ask the developers to cease work. Wimpey continued work on site.

In January, 2008, a claim was brought against Wimpey Homes claiming the benefit of the restriction and seeking an injunction.

The claim was stayed until Wimpey Homes and the Housing Associations application to the Land Tribunal was resolved, during which time building continued onsite.

The tribunal agreed the proposed use of the land was reasonable, and that the covenant impeded their use of the land. However, it stated that the benefit of the covenant to the objectors was of substantial value in respect of the value of their houses, their outlook and the potential for increased flooding due to any development.

On this basis, it ruled that the applicants had not established the ground required to have the covenant discharged.

This decision is important since even if the applicants had proved their ground, the covenant would still not have been modified or discharged.

The tribunal stated that the works already carried out by Wimpey was not due to ignorance but as a strategy to force the development, despite the objections of local residents benefiting from the covenant.

It is easy for developers to forget that those who have the benefit of restrictive covenants can cause them no end of headaches and, as such, their objections should be dealt with before works begin. The tribunal stated it is not inclined to reward parties who deliberately flout their legal obligations.