Briant vs Baldacchino

This case involved an application by Mr. Briant to modify a restrictive covenant that prevented extensive development on his property. The application was opposed by Mr. Baldacchino, who argued that the covenant provided substantial benefits to his adjoining property.

TLDR:

• Mr. Briant applied to modify a restrictive covenant on his property.
• The covenant restricted extensive redevelopment of the land.
• Mr. Baldacchino opposed the application, citing substantial benefits from the covenant.
• The Tribunal found in favor of Mr. Baldacchino and refused the application.

The case concerned an application by Mr. Nigel James Rutherford Briant to modify a restrictive covenant on his property at 47 Brook Lane, Corfe Mullen, Dorset. The covenant, established in 1987, restricted the erection of any further buildings on the property without prior approval. Mr. Briant had previously applied for a modification in 2019, which was refused.

Mr. Briant's property, known as Smugglers Hyde, was originally part of a larger estate owned by Mrs. Rosebud Proctor. After a fire in 2007, much of the original house was demolished. Since purchasing the land in 2009, Mr. Briant had made numerous planning applications for redevelopment, most of which were approved but did not proceed due to various issues.

Mr. Hugo John Baldacchino, the objector, owned the adjoining property, Kestor, and opposed the modification. He argued that the covenant provided substantial benefits by preserving the tranquility and privacy of his garden, which would be compromised by extensive redevelopment.

The Upper Tribunal, led by Mrs. Diane Martin MRICS FAAV, reviewed the application under section 84 of the Law of Property Act 1925. The Tribunal considered whether the covenant impeded reasonable use of the land and whether its modification would secure practical benefits of substantial value or advantage to Mr. Baldacchino.

After inspecting the properties and reviewing expert evidence, the Tribunal concluded that the proposed developments would significantly impact the amenity and value of Kestor. The Tribunal noted that the proposed buildings were substantially larger and closer to the boundary than the original cottage, leading to concerns about overbearing presence, noise, and privacy.

The Tribunal emphasized that the covenant secured practical benefits of substantial advantage to Mr. Baldacchino by preserving the tranquility and privacy of his property. Consequently, the Tribunal found no jurisdiction to modify the covenant and refused the application.

This decision highlights the importance of restrictive covenants in property law and their role in protecting the interests of adjoining landowners. It also underscores the challenges faced by property developers in seeking modifications to such covenants.

Legal representatives: Mr. Nigel James Rutherford Briant (representing himself), Mr. Charles Auld (instructed by Porter Dodson) for the objector.

Judicial Panel: Mrs. Diane Martin MRICS FAAV

Case Citation Reference: [2024] UKUT 164 (LC)