[2023] UKUT 189 (LC)

Fecha: 08-Ago-2023

The Tribunal’s jurisdiction

The Tribunal’s jurisdiction

18.

Section 84 of the 1925 Act gives the Tribunal power to discharge or modify restrictive covenants affecting land where certain grounds in section 84(1) are made out. That power is discretionary. As the Supreme Court explained in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 (at [33]):

‘It is well-established (see, for example, Driscoll v Church Comrs for England [1957] 1 QB 330) that, if satisfied that one of the prescribed grounds has been made out, the Upper Tribunal has a discretion whether or not to make an order for modification or discharge of the restrictive covenant. The important statutory words to this effect are in section 84(1): the Upper Tribunal “shall … have power”. The five grounds are therefore concerned with establishing the Upper Tribunal’s jurisdiction and can be helpfully labelled the “jurisdictional grounds”: at least one of those jurisdictional grounds must be established by the applicant before the Upper Tribunal can go on to make what is ultimately a discretionary decision.’

19.

The application is made under three of the grounds in section 84(1): ground (a), the restrictions being said to be obsolete; ground (aa), because the proposal is a reasonable use of the land and its completion will cause the landlord no substantial loss or disadvantage; and ground (c), on the basis that the objector will not be injured by the proposed modification. It was common ground that the burden of showing that at least one of these grounds is made out falls on the applicant and that the Tribunal will then have a discretion whether to modify the restrictions or not. It was also agreed that the fact that the restrictions are leasehold rather than freehold covenants is no obstacle to their being modified as the conditions in section 84(12) are met.