[2023] UKUT 00196 (LC)

The applicants submitted that the deed of release from the Council, the consent of their neighbour at No.3, the lack of objection from anyone other than the objector, and breaches of the restriction elsewhere on the estate are all evidence of express or implicit agreement to the discharge or modification of the restriction. They submitted that the objector himself, in utilising and benefiting from his conservatory extension, had behaved as though the covenant was discharged or modified.

The points made by the applicants are valid, so far as they concern the Council and others who have not objected, but the fact remains that one person with the benefit of the restriction has explicitly not agreed to it being discharged or modified. The objector’s agreement to a discharge of the restriction cannot be inferred simply from his ownership of a property which breaches it. Moreover, although he initially indicated willingness to agree to modification subject to payment of compensation, agreement was never reached. Ground (b) is therefore not satisfied.