Case No. UKUT-0172-(LC)-UTLC-Case-Number:-LC-2020-33

14.The restrictions are contained in the Third Schedule to the 1989 transfer of the Property, which provides:“(a)(i) Not without the previous written consent of the Vendor to alter the external plan or elevation of any building standing upon the Transferred Property nor without the like permission to erect any building thereon save those erected or in the course of erection at the date hereof…(b) Not to use the Transferred Property at any time for any purposes other than that of a single private dwellinghouse and so that no trade business or manufacture whatsoever shall be carried on …”15.I will refer to the restrictions as the “building restriction” and the “business restriction”.16.Section 84(1) of the Law of Property Act 1925 gives the Tribunal power to discharge or modify any restriction on the use of freehold land on being satisfied of certain conditions. The application was made under grounds (a), (aa) and (c).17.Ground (a) of section 84(1) is applicable where a restriction has become obsolete as a result of changes to the neighbourhood since it was imposed.18.Ground (aa) of section 84(1) is satisfied where it is shown that the continued existence of the restriction would impede some reasonable use of the land for public or private purposes or that it would do so unless modified. By section 84(1A), in a case where condition (aa) is relied on, the Tribunal may discharge or modify the restriction if it is satisfied that, in impeding the suggested use, the restriction either secures “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or that it is contrary to the public interest. The Tribunal must also be satisfied that money will provide adequate compensation for the loss or disadvantage (if any) which that person will suffer from the discharge or modification. 19.In determining whether the requirements of sub-section (1A) are satisfied, and whether a restriction ought to be discharged or modified, the Tribunal is required by sub-section (1B) to take into account “the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.” 20.Where ground (c) is relied on, the Tribunal may discharge or modify a restriction if it is satisfied that doing so will not injure the persons entitled to the benefit of the restriction.21.The Tribunal may also direct the payment of compensation to any person entitled to the benefit of the restriction to make up for any loss or disadvantage suffered by that person as a result of the discharge or modification, or to make up for any effect which the restriction had, when it was imposed, in reducing the consideration then received for the land affected by it. If the applicant agrees, the Tribunal may also impose some additional restriction on the land at the same time as discharging the original restriction.22.The applicants’ case on ground (a) is that the restrictions are obsolete due to the change in the nature of the neighbourhood since they were imposed. On ground (aa) they say that the restrictions prevent the reasonable use of the property, that modification would not result in those entitled to the benefit of them losing something which provides a practical benefit of substantial value, and that money would be an adequate compensation for any loss suffered. Moreover, the consent of the developers to the proposals cannot be obtained since the developers no longer exist. The objectors will have the opportunity to comment on the proposals through the planning process and will have the comfort that scrutiny of design details and an assessment of the impact on neighbours will be part of that process.23.The objectors say that the restrictions are not obsolete because there is no evidence of appreciable change in the neighbourhood since they were imposed and they continue to protect the nature of the original development. If modification were allowed, this itself would lead to a change in the neighbourhood and would set an undesirable precedent. The objectors see no need for discharge or modification of the business restriction simply to enable the applicants to work from home or run a business from home. If the restriction was modified to allow more significant business use that would be detrimental to a residential neighbourhood and cause significant access and parking problems. When making their objections the objectors had not been provided with a detailed proposal for the extension and once this was made available no further submissions were made on the likely impact on their respective properties.