Covenant not to erect additional buildings did not stop the demolition and replacement of a building

In the case of McDonagh v Reeve [2023], the Court decided that the demolition of a property and its replacement with a substantially bigger building was not a breach of covenant.

The parties in the case were Mr and Mrs McDonagh who owned Rose Cottage in Poole. The neighbour of the adjoining property was Karen Reeve. 

Ms Reeve’s property had benefit of a restrictive covenant which was binding on Rose Cottage and provided that 'no additional buildings whatsoever' should 'at any time be erected' on the land. Mr and Mrs McDonagh applied to the Court for a declaration that their proposed demolition of the current building on their land and its replacement by a substantially larger building, for which they had received planning consent, would not amount to a breach of that covenant.

The court considered two issues: (i) whether any building erected on the land, either in addition to or in replacement of the original building, was ‘an additional building’ and (ii) whether, if the court decided that the covenant did not prevent the erection of a replacement building, any new building should have to equate to the original building in size or area.

The court concluded that covenant did not prevent the McDonaghs from implementing their planning permission and replacing the existing building and that that decision.

Comment

It is important to remember that obtaining planning permission does of itself mean that you can proceed with your proposed development and that if there is a valid restrictive covenant affecting your land then, in the absence of agreeing a modification or release with the owner of the benefitting land, you may need to apply to the Upper Tribunal (Lands Chamber) to discharge or modify the covenant or, as in the case, to the Court for a declaration as to what the covenant means. Once you have made taken the ‘litigation route’ it becomes impossible to obtain restrictive covenant insurance cover and so before taking any procedural steps it is always worth considering whether insurance might be a quicker and less expensive alternative.

For more information on the above or any other litigation issue, contact Johanne Spittle on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email Johanne.spittle@warekay.co.uk.