A married couple have succeeded in having a restrictive covenant modified to allow them to build more than one house on part of their land.

The couple had bought the land together with a farmhouse in 2001 for £600,000 from a college. They then obtained planning permission allowing them to convert two outbuildings, the “Modern Barn” and the “Old Barn”, into a single residential dwelling.

They intended to live in the converted outbuildings and sell the farmhouse. However, the land was subject to a restrictive covenant in favour of the college which allowed only one private dwelling.

The college had sold other parcels of land to neighbouring occupiers, also with restrictive covenants, but retained the main block of agricultural land and the access road to the land from the public highway.

The college stated that the benefits to it of the covenant were substantial. It also argued that modification would not assist the couple as, although they enjoyed a right of way over the access road, it was limited to “permitted uses” of the land, namely use as a single private dwelling.

The college was also concerned that relaxation of the covenant would set a precedent in respect of future, similar applications, from the owners of neighbouring properties.

The Upper Tribunal (Lands) found in favour of the couple and agreed to modify the covenant to allow the development to go ahead.

It held that although the covenant provided practical benefits to the college, they were not substantial. Any increase in the use of the access road would be very limited and would not create any significant conflict between agricultural and domestic use of that road.

The precedent value of relaxation of the covenant was small as the position of the neighbouring properties was very different, and their covenants were different.

Please contact us if you would like more information on the issues raised in this article or any aspect of property law on 02920 345511 or commercialproperty@berrysmith.com