The decision of the Upper Tribunal (UT) in this case hinged on the modification of restrictive covenants, ultimately siding with the applicants due to the "unfairness" of the objectors' behaviour and the minimal practical benefit of the restrictions.

Facts:

Mr and Mrs Harrison-Ellis purchased Hillside in March 2020 and have since altered and enlarged the house in breach of restrictive covenants imposed in 1965 in favour of the property diagonally opposite, known as ‘Korobe’, which has belonged to the objectors, Mr and Mrs Hunt, since 2019.

These covenants limited Hillside to a single-storey dwelling with a maximum roof height linked to a neighbouring property, and prohibited dormer windows on the eastern roof slope. After obtaining planning permission, the applicants proceeded with a significant extension that resulted in a two-storey house with a roof height of 120 cm above the restricted limit and dormer windows on the eastern side, all of which were in breach of the covenants. Mr Hunt did not react to an email requesting that the covenants be removed before the work started or Korobe was even bought. 

The Hunts, without knowing about the covenants, undertook a major redevelopment of their own property. They built a new three-storey house with extensive glazing and a new access road. The dispute began in January 2023, more than two years after the Hillside development was completed, when the Hunts protested the breaches.

Decision: 

The application brought by Mr and Mrs Harrison-Ellis to modify the restrictive covenants on their property, Hillside, was successful. The UT found that the restrictive covenants did not secure a "substantial value or advantage" to the objectors, Mr and Mrs Hunt. The Tribunal agreed that the dormer windows on Hillside had reduced the privacy of Korobe, but described this as a "very slight reduction". The Tribunal found that the objectors' own design choices—namely, building a house with large expanses of glass and a new, exposed access from the road—had already compromised their privacy significantly. Given that people could already see into Korobe from the ground floor and the street, the added visibility from the upper floor of Hillside was not a substantial benefit. It concluded that any loss of privacy or visual amenity caused by the works at Hillside could be adequately compensated with money. The Tribunal dismissed the expert valuation of a £230,000 loss, finding it unsupported by evidence, and instead determined that a payment of £25,000 would be appropriate compensation.

The Tribunal rejected the applicants' argument that the covenants were obsolete. It reasoned that, despite some changes in the neighbourhood, such as the development of Meadow Close and modern rebuilds like Korobe itself, the covenants' original purpose remains relevant. The Tribunal found that the height and appearance of the houses along Fairfield Road still matter to the owners of Korobe.

The Tribunal heavily penalised the objectors for their two-year delay in taking action, finding that this inaction "outweighed" any mistakes on the part of the applicants. The objectors were also criticised for not obtaining a copy of the restrictive covenants themselves and instead relying on the applicants' inaccurate summary. The Tribunal questioned the sincerity of the objectors' concerns, given their own actions.

Implications:

This case provides crucial insight into when a restrictive covenant can be modified, particularly after a breach has already occurred. The Tribunal's decision was a clear signal that these covenants are not absolute and can be altered when their practical benefits are outweighed by other factors.

The Tribunal found that the restrictive covenants did not secure any "practical benefits of substantial value or advantage" to the objectors. This finding was a direct result of the Tribunal’s evaluation of the benefits themselves. It concluded that the visual amenity and privacy benefits claimed by the objectors were minor, especially because the objectors’ own choices, such as building a glass-fronted house with a new access, had already compromised their privacy. This demonstrates that a covenant's benefit is not static, as its "substantiality" can be diminished by the actions of the very person who seeks to enforce it.

The most significant implication is the critical importance of a timely response. This sets a clear precedent: if you believe a restrictive covenant is being breached, you must act quickly. The decision confirms the Tribunal's wide discretionary power under Section 84 of the Law of Property Act 1925 to consider the full context of a case, including the parties' conduct, rather than just the technical legal points.