Presence of right of way ruled out any discharge of anti fencing covenant

Clarke & Ors Re 5 and 7 Hillend Lane [2015] was an application under sub-paragraphs (a), (aa), (b) and (c) of Section 84(1) of the Law of Property Act 1925 (“the Act”) to discharge a restriction preventing the erection of fences and other structures on part of amenity land, owned by the applicants, on a small housing estate in Cheshire.

The applicants erected fences in 2012 and enclosed the parcels of land into their domestic gardens. They said that the relevant part of the amenity land had fallen into neglect, and was unused.

The majority of the other residents entitled to use the land objected saying that the amenity land should be kept in common use and that in any event they had a right of way over the land which they had been prevented from exercising by the erection of the fences.

The Upper Tribunal (Lands Chamber) said in the background to the individual considerations under grounds (a), (aa), (b) and (c) was the effect of the easement.

Even if the restriction should otherwise be discharged under an individual ground of Section 84(1) of the Act, that would have been negated by the existence of the easement which would have remained in place even if the restriction had been discharged. The presence of the easement would have led the Tribunal to refuse to exercise its discretion to discharge the restriction in favour of the applicants.

The discharge of the covenant would remove one impediment to the enclosure of the amenity land, but it would not legitimise interference with the objectors’ easement.

In those circumstances it would be inappropriate to discharge the restriction.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.