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Right to a Peaceful Garden Trumps Bungalow Development

Planning permission is usually all that you need to turn your development plans into reality – but not always. In one case, a restrictive covenant enshrined in title deeds before the Second World War was enough to defeat proposals for a new bungalow.

The covenant required that a plot of land lying between homes in a historic market town should not be built on, with the exception of a greenhouse, a garage or summer house to be used in connection with a private dwelling. However, after obtaining planning consent to build a detached bungalow on the plot, its owner applied to the Upper Tribunal (UT) to discharge or modify the covenant.

The UT accepted that the bungalow would be a reasonable use of the plot, but noted that the existence of the planning permission was not decisive. A neighbouring homeowner had objected to the development on the basis that it would obliterate the feeling of space and openness that he enjoyed in his garden and that money would not be adequate compensation for that loss of amenity.

In rejecting the would-be developer’s application, the UT found that the covenant was not obsolete and brought to his neighbour a practical benefit of substantial advantage – a peaceful back garden within a built-up area. The bungalow, if built, would stand nine yards from his boundary and would have a serious impact on the garden he cherished as a respite from the busy world outside.