An application to discharge a restrictive covenant under section 84(1) of the Law of Property Act 1925 on grounds that the covenant is obsolete or that those benefiting from it will not be injured will struggle where there have been no material changes in the neighbourhood and not all of those with the benefit of the covenant have been identified.
The Upper Tribunal (Lands Chamber) has rejected such an application in Robertson v Pace [2024] UKUT 123 (LC).
The application concerned around 215 acres of arable farmland, part of Ebbsfleet Farm, between Minster and Sandwich in Kent. The benefited land was a triangle of around 9 acres of woodland at the south-eastern corner of the application land, including a strip of land used for agricultural purposes by the applicant under a tenancy from the objectors, and other land to the south.
The land was subject to a covenant imposed in a 1995 transfer that it would not be used for any purpose other than agriculture. The applicant had no plans to seek planning permission for the land but wished to keep his options open.
The applicant sought the discharge of the covenant relying upon section 84(1) of the Law of Property Act 1925 ground (a) that by reason of changes in the character of the property or neighbourhood or other circumstances the restriction ought to be deemed obsolete; and ground (c) that its discharge would not injure the persons entitled to its benefit.
The tribunal considered it likely that the covenant was imposed to prevent objections to the development and operation of a tannery in contemplation in 1995 but never constructed. The character of the application land had not materially altered since 1995 but for the opening of the nearby A526. Land to the north and west and the benefited land remained agricultural in nature. While there had been changes to the south of the application land the character of the neighbourhood was essentially the same as in 1995. Consequently, the covenant still retained its utility and its purpose remained capable of fulfilment.
The objectors submitted that since there was no agreement on the extent of the retained land the tribunal could not be sure that all proprietors with the benefit of the covenant would not be injured by its discharge and, as the applicant had no plans for the land, there was no benchmark against which to assess injury. The tribunal accepted that it could not be shown that the discharge of the covenant would not injure the objectors and possibly others.
Louise Clark is a property law consultant and mediator
