If an applicant can satisfy one of the grounds in section 84(1) of the Law of Property Act 1925, the tribunal can modify or discharge a covenant restricting the use of land. Four such grounds are available to applicants.
Ground (a): the covenant may be obsolete. Ground (aa): the covenant may restrict a reasonable use of the land and confer no practical benefits of substantial value or advantage on the person(s) entitled to the benefit of it, or it may be contrary to the public interest. In both such cases, it must be possible to compensate those who lose the benefit of the covenant by the payment of money. Ground (b): the beneficiaries of the covenant may agree that it can be modified or discharged. Ground (c): the applicant may be able to show that no injury will be caused if the covenant is modified or discharged.
Green v Hayes-Hall [2019] UKUT 174 (LC) concerned land that fronted a public highway but was accessible only from the rear, thanks to a restrictive covenant that prohibited vehicular access to the frontage and added nearly half a mile to car journeys to and from the property. The landowner had applied for, and obtained, planning permission to construct a garage with vehicular access to the frontage and, having built the garage, applied to modify the covenant on grounds (a), (aa) and (c) of section 84(1) so that she could obtain vehicular access to the garage from the frontage. But the owners of the 17th century grade II listed building that benefited from the covenant objected to the application because they were concerned that modification of the covenant would facilitate vehicular access to development land nearby.
The application under ground (a) failed. The application land and the houses around it remained largely unaltered and proposals for a large development some distance away had not changed the character of the neighbourhood. So the purpose for which the restriction was imposed could still be achieved – and the restriction was not obsolete.
The application under ground (aa) was equally unsuccessful. The Upper Tribunal acknowledged that the applicant had secured planning consent for the proposed user and that obtaining vehicular access to a garage from a main road, where adjoining properties had similar accesses, would not, on the face of it, be unreasonable. But the Upper Tribunal was also satisfied that the objectors’ ability to prevent traffic to and from the development land conferred a practical benefit of substantial advantage on them.
However, the judge did decide that it would not injure the objectors if the covenant were to be modified to provide access to the garage only (effectively prohibiting the creation of a through road that could be used to provide access to the development site and/or to the roadway at the rear of the applicant’s property). So the application succeeded on ground (c) and, because the judge was satisfied that no injury would be caused by such a limited change to the restriction, the objectors were not entitled to any compensation for the modification of the covenant.
Allyson Colby is a property law consultant
