The case of Livett v Hennings and others provides helpful discussion about building schemes and how to spot one. This article is part of a series of Blogs where I attempt to summarise the latest decisions from the Upper Tribunal Land Chamber – the specialist court for applications to modify covenants affecting land under s84 Law of Property Act 1925 (the Act).
The Applicants in this case owned land subject to a restrictive covenant not to build more than one dwelling house on their land or create a nuisance to their neighbours. The Applicants had planning permission to demolish the house and build two new ones. Upon making the application, objections were lodged by Mr and Mrs Hennings and Mr and Mrs Murdin (the Objectors) who wished to oppose the application.
Entitlement to object to an application to modify?
The decision by the Tribunal was on the preliminary issue as to whether the Objectors were entitled to object. To object to an application to the Upper Tribunal Lands Chamber, one needs to show that one has the benefit of the covenant. Covenants will ordinarily describe the land which it is said to benefit. The term used is that it must ‘touch and concern’ land or the covenant and land are somehow annexed.
In this case, a covenant dated 22nd October 1933 was said ‘to benefit and protect the residue of the Estate of the Vendors in the parishes of Chislehurst and Orpington as shown on the Estate Plan of the said Estate’.
The Objectors’ land had been parcelled off shortly before the restrictive covenant was created. As such, the benefit described in the 1931 conveyance could not possibly attach to the Objectors’ land. That is, unless the Objectors could demonstrate there was a ‘building scheme’ such that they have standing to object to the discharge or modification of the covenant.
Building Schemes defined
A building scheme, as recognised in the decision of Tribunal Judge Elizabeth Cook at paragraph 11, is a ‘lawyer’s term of art’. At paragraph 13 of the judgment, is a helpful summary of the law as to where a building scheme will be established:
“The requirements of a building scheme were first expounded in Elliston v Reacher [1908] 2 Ch 374 at p.384; the latest authoritative statement of the doctrine is found in Birdlip v Hunter [2016] EWCA Civ 603. At paragraph 2 Lewison LJ said this:
“2. The characteristics of such a scheme are that:
i) It applies to a defined area.
ii) Owners of properties within that area have purchased their properties from a common owner.
iii) Each of the properties is burdened by covenants which were intended to be mutually enforceable as between the several owners.
iv) The limits of that defined area are known to each of the purchasers.
v) The common owner is himself bound by the scheme, which crystallises on the occasion of the first sale of a plot within the defined area, with the consequence that he is not entitled to dispose of plots within that area otherwise than on the terms of the scheme.
vi) The effect of the scheme will bind future purchasers of land falling within the area, potentially for ever.”
The issues in this particular case for the objectors who had done considerable research in finding conveyances, plans and documents dating back almost 100 years, came down to:-
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whether the scheme applied to a defined area; and
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whether the limits of that defined area were known to each of the purchasers.
In short, having gone through many documents and possible plans adduced by the Objectors, the Judge referred to the case of Birdlip, where Lewison LJ said
‘one would have thought, a priory, that in the case of a scheme of mutual covenants designed to last potentially forever, that that intention would be readily ascertainable without having to undertake laborious research in dusty archives searching for ephemera more than a century old. In almost all the cases to which we were referred where a scheme of mutual covenants was found to exist, the area of land to which the scheme applied was ascertainable and the terms of the conveyance or other transaction documentation. Conversely where the conveyance or other transactional documents gave no indication of the land to which the scheme applied, no scheme was found.’
The Judge in this case held that there was no defined area to which the scheme could be said to apply, and similarly no evidence that the purchasers were aware of the same.
The result was that the objectors lacked legal standing to object to the application.
SUMMARY: even where neighbours may have the same or similar covenants burdening their land as Applicants to the Tribunal, unless their land is stated to benefit from the covenants, they may not be able to object. One way around this is to establish the benefit of covenants by way of a ‘building scheme’. Any building scheme will need to meet the requirements summarised in Birdlip v Hunter - see above - and will need to show that the scheme applies to a defined area, and that the limits of the defined area were known to each of the purchasers at the relevant time. The lesson for Objectors in this case, is that this is something that should be ‘readily ascertainable’ by conveyances and plans.
Case title: Livett v Hennings & Murdin Case No. UTLC LC-2022-14
You can find decisions from the UTLC here
For more information about Restrictive Covenants affecting land, see our blog here
Toby Walker and his team specialise in disputes over property, include applications to the UTLC. They act for both owners and developers as well as those seeking to uphold covenants in all stages from initial advice, negotiations, deeds of variation and litigation.