Upper Tribunal rejects claim restrictive covenants in favour of council was obsolete

A covenant that limits external changes to what were originally homes owned by the London Borough of Barking and Dagenham is not obsolete and the Upper Tribunal (Lands Chamber) anyway lacks jurisdiction to change it.

That ruling has come from tribunal judge D Martin in a case brought by two residents under section 84 of the Law of Property Act 1925.

The applicants own a house in Becontree, through the right-to-buy scheme, but that of their next door neighbour is still owned by the council.

They sought modification of a restrictive covenant to enable them to retain a porch and boundary fence erected in 2021 in breach of the covenant. The two houses originally shared a porch.

In July 2024 the council was granted an injunction in the County Court at Romford requiring demolition of the works and restoration of the communal porch to its original condition.

Although the couple had bought their home it came with the covenant which included that they would “not at any time to suffer or permit the exterior of the property or any part thereof (including the gardens) to be altered or added to without the previous consent in writing of the [council].”

The couple claimed they wished to build their own porch as they had suffered anti-social behaviour and had noted that some other houses on the estate had added on private porches.

Work began on building the porch but ceased when the neighbours contacted the council, which objected.

But in August 2021 a Lawful Development Certificate was granted, which one of the applicants assumed was the consent previously withheld. The council then said permission had been granted in error and the works should not re-commence.

The applicant heard nothing further and gave instructions for work to proceed, which was completed the following month.

As a results of these works the pedestrian entrance to the front garden of the next door house was narrowed so that wheelie bins cannot now be moved through it, the tribunal heard.

The applicants told the tribunal the covenant was imposed more than 42 years ago, when the council still owned a sufficient number of properties to warrant a covenant to control the aesthetics of the neighbourhood, whereas it now one owns fewer than half.

Since the council now only enforces the covenant where it owns a neighbouring property, the original purpose of the covenant can no longer be achieved and it should be deemed obsolete, the applicants said.

Mrs Martin said: “I consider that, by reason of changes in the character of the property and the neighbourhood since the covenant was imposed, the original purpose of the covenant in preserving the character of the neighbourhood as a whole can no longer be achieved.

“However, turning to the secondary purpose of the covenant, in assisting the [council] to guard against changes to the character and amenity of its own property, I can see that this has a particular relevance on the estate where communal porches are an original defining feature.”

She said she was “not persuaded that the split porch…..creates a particular problem for the neighbours.

"However, the applicants have gone too far in carrying out work to the objector's property without consent, which is an act of trespass.”

The new dividing fence had “created significant problems for the neighbours” who had been deprived of shared access along the communal path.

Mrs Martin said the fact that Barking & Dagenham continues to take enforcement action in response to similar situations meant that the secondary purpose of the covenant could still be achieved by assisting it to guard against changes to the character and amenity of its retained property.

She concluded: “Overall, I consider that the covenant ought not to be deemed obsolete.” She went on to say: “I do not have jurisdiction to modify the covenant to permit the works.”

The judge was though critical of the council’s conduct of the case. Mrs Martin said: “It was naïve of [the applicants] to carry out so little due diligence about the ownership of No 18 before commencing the works, but the fact that they applied for a LDC immediately they were told they needed consent points to misunderstanding rather than opportunism.

“When the applicants recommenced and completed the works they had the benefit of a LDC and nothing in writing to explain the effect of the covenant. By this stage they must have understood that the objector would try to prevent them from completing and retaining the works, even if the reason was still not clear to them.

“Their determination to proceed was a challenge to the objector's opposition, but the works were carried out for peace of mind, not for profit.”

She said it was unfortunate that the council did not offer informed engagement with the applicants at the outset, “so that they could have understood properly the nature of breach they were about to commit”.

Mark Smulian