[2025] UKUT 00253 (LC)

This is an application for discharge or modification of restrictions which prevent the applicant from implementing a planning permission for the erection of a new dwelling in her garden at Manor House, Thoroton. The application land adjoins the end of the applicant’s garden and would be used for access and parking associated with the new dwelling. However, it is burdened by a restriction which prevents the erection or construction of any building or structure on it and requires it to be used as a private garden for domestic recreation only (“the restriction”). The application land benefits from a right of way over an adjoining private access road to Thoroton Farm; that right is limited to purposes in connection with use of the application land as a private garden for domestic purposes (“the limited right of way”).

An application was made on 18 July 2024 for discharge or modification of the restriction and modification of the limitation on the right of way, under grounds (a), (aa) or (c) of section 84(1) of the Law of Property Act 1925, to permit implementation of the planning permission. Whether the Tribunal has jurisdiction to discharge or modify a limitation on the use of a right of way is an issue on which I received submissions.

The full list of objectors to the application is provided at Appendix 1. The first objector is Wheatcroft Land (Thoroton) Limited (“WLTL”), a company which developed Thoroton Farm to provide eight new properties, numbered 3 to 10 Thoroton Farm. WLTL has retained ownership of the communal access road and adjoining areas until the titles of all the new properties are registered at the Land Registry. At that point, ownership will be transferred to the Thoroton Farm Management Company, and the owners of all the properties at Thoroton Farm will become members or directors of that company. Owners of six of the eight new properties at Thoroton Farm are objectors to this application (“the personal objectors”).

I made a site inspection on 3 June 2025, accompanied by the applicant and her daughter, counsel for the objectors, and Mrs Deena Tomlinson, one of the personal objectors.

At the hearing the following day the applicant was represented by Mr Mark Diggle, who called the applicant to give evidence. The objectors were represented by Mr Richard Power, who called Ms Catherine Haward, a director of WLTL, Mrs Deena Tomlinson, Mrs Sonia Garratt, Mr Leonard Garratt, Mr Richard Saville and Mrs Jayne Saville. I am grateful to them all. Neither party adduced expert evidence.

I agreed that counsel for the parties could submit their closing arguments in writing.