[2024] UKUT 112 (LC)

That leaves the two 1966 covenants, and the other two 1967 covenants, which the applicant wants the Tribunal to modify, not discharge, on grounds (aa) and (c). Ground (c) requires the applicant to prove that no-one will be injured at all by the modification; if the applicant fails on ground (aa) then he fails on ground (c). We address ground (aa) first.

Ground (aa) is a complicated provision because it has to be read with sub-sections (1A) and (1B) of section 84; it was helpfully unpacked by the decision in Re Bass Ltd’s Application (1973) 26 P & CR 156 and expressed in a number of questions of which the following are relevant to this application:

Unusually question 1 is in dispute, even though the applicant has planning permission for what he wants to do. Mr Fuller argued that a use of the application land that involved trespass could not possibly be a reasonable use. As we have explained, if we had a discretion to modify all the covenants that are the subject of this application, we would not have exercised that discretion in a way that would be pointless if the applicant did not own the necessary land; but we would have adjourned the application in order to enable him to make good what he says about the disputed areas. We think that the uncertainty about the title goes to discretion and not to the first of the Re Bass questions; the applicant says he has title to the necessary land and, if he has, then its use for the building and occupation of two houses would be a reasonable use.

The second question is not in dispute; the covenants impede the proposed use of the land.

We proceed now to look at questions (iii) and (iv) together: do the covenants secure practical benefits to the objectors, or any of them, and if so are they of substantial value or advantage.

None of the parties has produced any valuation evidence and so the argument has focused on whether the covenants secure practical benefits to the objectors and, if so, are those benefits of substantial advantage, rather than monetary value, to them. In other words: if the covenants confer practical benefits on the objectors, are those benefits substantial?

The three groups of objectors are in different positions, physically. Not all of them will be able to see the proposed development from their homes. Not all of them have to drive past it to get to their homes: Mr Mackenzie’s vehicular access is from Vicarage Lane, although he walks through High Elms to get to Grange Hill station. We could organise our discussion by groups of objectors, or by the benefits that they claim the covenants give them, and we think the simplest approach (to avoid repetition) is to do the latter.