201611.04

University Boathouse Plans Stymied by Victorian Restrictive Covenant

river at sunsetMany cherished patches of green in urban areas are protected from development by restrictive covenants that date back many years. Their antiquity, however, does not make them any less enforceable, as a university discovered when its plans to develop a state-of-the-art new boathouse were stymied.

The case concerned a plot of riverside land on which the university had planning consent to build the two-storey boathouse. Objectors to the proposals, however, pointed to a restrictive covenant, dated 1896, which forbade use of the land for trade or business or for any purpose other than as gardens or pleasure grounds. In those circumstances, the university applied to the Upper Tribunal (UT) to overturn or modify the covenant so as to enable the boathouse to be built.

In rejecting the application, however, the UT found that the proposed development would breach the covenant in that it would involve the carrying on of business on the land. Although students might derive pleasure from the new boathouse, it could not be viewed as a garden or pleasure ground.

The covenant was far from obsolete in that, for 120 years, it had successfully protected the character and unhindered enjoyment of a beautiful space. The boathouse, if built, would be overbearing and intrusive and, in particular, would overshadow a carefully tended garden on an adjoining plot. Although there was a clear need for the university to improve its rowing facilities, that factor was outweighed by the public interest in enforcing the covenant.

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