[2024] UKUT 00164 (LC)

Section 84(1) of the Law of Property Act 1925 gives the Upper Tribunal power to discharge or modify any restriction on the use of freehold land on being satisfied of certain conditions. The conditions relied on by the applicant in this case are (aa) and (c).

Condition (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.

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.”

Where condition (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.

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.

The applicant’s case is that the restriction should be modified under ground (aa), because it impedes a reasonable use of the land and does not secure to the objector any practical benefits of substantial value or advantage. The application was also made under ground (c), but the submissions focused on ground (aa).

The case for the objector is that the restriction was imposed to preserve the tranquillity of the garden behind Kestor, the enjoyment of which is vulnerable to activity from the adjoining higher ground of the application land. The area around Kestor has become increasingly urbanised and had the restriction not been in place since 1987, then the tranquillity would inevitably have been destroyed already by development of two or even three houses on the application land.

Whilst the objector accepts, following the 2020 decision, that a development of two houses is a reasonable use of the application land, he says that in preventing two houses the restriction secures a benefit of substantial advantage to his property. Moreover, modification of the restriction to allow just a single replacement dwelling in one part of the application land would create a “thin end of the wedge” situation whereby the advantage of being able to prevent development of a second dwelling might no longer be substantial.