The case concerned a residential close, built in the 1980s, consisting of four homes. They were positioned closely together with a green space between them and an access road. A couple who owned one of the homes obtained planning permission to reposition their driveway and attach a new double garage to their property, which would encroach into the green space.

Standing in their way, however, were a number of restrictive covenants contained in the property’s title deeds. Crucially, one of them required that the green space be maintained solely as ornamental gardens, crossed by private driveways leading to each of the homes, and that no trailer, mobile home, caravan or boat should be kept or parked thereon.

The couple applied to the Upper Tribunal (UT) under the Law of Property Act 1925 to modify the covenant so as to enable the development to proceed. However, they encountered stiff opposition from two sets of neighbours who wished to retain the ornamental garden at the centre of the close. They argued, amongst other things, that the development would have a profound visual impact and change the close’s whole character and ambience.

Rejecting the owners’ application, the UT noted that the covenant served the mutual benefit of all homeowners in the close. It conferred on them collective control over the way in which the green space was used in order to preserve its visual amenity. The proposed new garage would, for the first time, alter the visual integrity of the close as it was originally designed.

The covenant provided certainty to the close’s residents and to prospective buyers of their homes, the value of which would be affected by the development. Authorising its modification could be the thin end of the wedge, enabling further encroachments into the green space. It brought practical benefits of substantial advantage to homeowners in the close and its modification would be injurious to the couple’s neighbours, who were entitled to those benefits.