Private rights and restrictive covenants: Section 84 and the decision in Hassan v Heath

The Upper Tribunal’s recent decision in Hassan & Osman -v- Heath [2025] UKUT 242 (LC) is a timely reminder of the oft-encountered tension between the grant of planning permission and the existence of restrictive covenants which prevent the intended development of a property.

Background

The Application concerned two properties: No. 24 (the Applicants’ property) and No.24A, the Respondent, Mr Heath’s property. Both properties are two storey houses. No.24 is a Victorian property and No.24A is situated in a converted stable building which at one time formed part of the same plot as No.24.

In 1986, the plot was divided into two. The Transfer contained a restrictive covenant, the burden of which attached to No.24, providing that the “external plan or elevation of the dwellinghouse shall not be altered or permitted or suffered to be altered nor shall any building or erection other than the said dwellinghouse be erected on the land” (“Restriction”).

In 2017, the Applicants, Mr Hassan and Dr Osman, purchased No.24. One of their two sons is an autistic person with high support needs. No.24 only has two bedrooms and it was always the Applicants’ intention to redevelop it. They were aware of the Restriction at the point of purchase but were advised (poorly) that it would be “no obstacle” to their intended redevelopment plans.

In 2021, Mr Heath, a retired opera singer with interests in art and design, purchased no.24A. Mr Heath was said to spend three quarters of the year in his conservatory which was used as an office and a place to relax, facing out on to his garden.

The Applicants sought planning permission to redevelop No.24 on four occasions, principally for the purpose of extending the ground floor and extending and converting the loft to create a third bedroom. Notwithstanding an objection from Mr Heath (the sole objector), planning permission was ultimately granted in January 2024. It included, amongst other things, permission for the roof extension and conversion (“Roof Works”) and a single storey ground floor side extension (“Ground Floor Works”).

Once planning permission had been granted, the Applicants served a Party Wall notice. In response, Mr Heath served a formal letter before action, threatening an injunction to restrain the Applicants from carrying out their proposed works.

The Applicants, undeterred, continued with the works. Mr Heath duly sought and obtained an injunction in August 2024. By this time the Ground Floor Works were already half completed, not entirely in accordance with the terms of the planning permission. The Roof Works had not yet begun.

Issues for the Tribunal

It was common ground that the majority of the works – extending the ground floor and raising the roof – were caught by the restriction. The Tribunal therefore had to consider:

1. The true construction of the Restriction, and whether it encompassed the entirety of the works and specifically, whether the creation of door and window openings were alterations to the “elevation” of No.24.
2. Whether, in any event, the Restriction ought to be modified or discharged under s.84(1) LPA 1925.

The construction issue

The Tribunal disposed of the first issue quickly. Following Triplerose Limited -v- Patel [2018] UKUT 0374 (LC), it held that the ordinary meaning of “elevation” is “…not a term of art…” and in architecture or surveying means, amongst other things: “a drawing of a building on a vertical plane, as opposed to a ground plan…”. Accordingly, alterations to windows and door openings constituted alterations to elevations and were prevented by the covenant.

The modification issue

The Applicants sought modification of the covenant under ground (aa) of s.84(1) LPA 1925 (the “reasonable user” ground), to allow the works to be completed.

Ground (aa) is satisfied where the restriction impedes “some reasonable user of land for public and private purposes” and where the Tribunal is satisfied that the restriction secures no practical benefit of substantial value or advantage to the person with the benefit of the covenant or, if it is contrary to the public interest not to allow the modification.

In determining the Application, the Tribunal followed the two stage test in Alexander Devine Children’s Cancer Trust -v- Housing Solutions Ltd [2020] UKSC 45. At the first stage, the Tribunal had to be satisfied that the prescribed ground was made out. If that jurisdictional threshold was satisfied, it would then move on to the second, “discretionary stage” to decide whether, and to what extent, it ought to modify the restriction..

The Tribunal was required to balance the Applicants’ desire to develop their property to accommodate their son’s needs, with the desire of their neighbour to enjoy his own Property and the value to him in preserving the status quo. Mr Heath told the Tribunal he considered that, notwithstanding the grant of planning permission, the roof alterations were totally out of keeping with the character of the area and with the flow of the two buildings when considered together. Other objections included alleged light pollution into the conservatory as a result of the Ground Floor Works.

The Decision

It was common ground that the restriction impeded a reasonable user of the land and that it secured a practical benefit to Mr Heath. However, the Tribunal was not satisfied that the ability to prevent the works was of substantial value (assessed by reference to the hypothetical diminution in value of No.24A). The Tribunal therefore had to determine whether or not the Restriction conferred a substantial advantage upon Mr Heath. In doing so, it considered the two aspects of the works separately.

Commenting that the situation in respect of the Ground Floor Works was “nuanced”, the Tribunal noted that, notwithstanding breaches of the planning permission, there would only be a small increase in the height of the ground floor. Any overlooking or light pollution was likely to be minimal. Accordingly, the ability to prevent the Applicants from completing the Ground Floor Works was not of substantial advantage to Mr Heath and the Applicants succeeded on this aspect.

In respect of the Roof Works, irrespective of the fact that the Applicants had obtained planning permission and succeeded on their case in respect of the Ground Floor Works, the Tribunal found that the structure would have a “significantly overbearing effect” on the conservatory and garden of no.24A. The restriction was of substantial advantage to Mr Heath.

The only question which remained was whether the modification could be justified on public interest grounds. The Tribunal found that it could not. Notwithstanding the needs of the Applicants’ son and the fact that without the Roof Works, no.24 was too small for them as a family of four, this did not justify what would otherwise be a substantial interference with Mr Heath’s private property rights.

Comment

It is a common misconception by hopeful developer clients that the grant of planning permission represents the final major hurdle before work can commence. However, as this case shows, inadequate consideration to the effect of private property rights including restrictive covenants can have serious and costly consequences, even where there are compelling reasons for the court to come to the rescue.

The courts are generally reluctant to interfere with private rights and the sanctity of contract. At each stage of any intended development, particularly before planning permission is sought and any works commenced, care should be taken to evaluate the feasibility of any potential plans in the context of any rights which burden the subject property, before it is too late to do so.

Article by Victoria Dacie-Lombardo