[2025] UKUT 00253 (LC)

The introductory paragraph of section 84(1) states:

“(1)

The Upper Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction …”

Mr Power submitted for the objectors that the limit on the right of way granted in part 12.2.2 was not a restriction within the scope of section 84(1) and the Tribunal had no jurisdiction to modify or discharge it. Moreover, since the applicant had no freehold interest in the access road, she was not entitled to make an application under section 84(1) to modify the terms of the easement granted to her over it.

Mr Diggle submitted that it is the applicant’s freehold interest in the application land which is affected by the restriction in 12.2.2 and that the words “or otherwise” in section 84(1) demonstrate that the jurisdiction is not limited to restrictions arising under covenants. He submitted that if section 84(1) is given the narrow meaning contended for by the objectors, that it relates only to covenants and not to easements, then the words “or otherwise” in the section are rendered otiose. He submitted that so long as an easement fulfils the remainder of the statutory definitions in section 84(1) then it is susceptible to the power granted to the Tribunal by that provision. To decide otherwise would result in the frustration of the statutory power in circumstances where a covenant would be susceptible to modification but the existence of an easement that would prevent user in accordance with a modified or discharged covenant would in any event prevent the use of the land.

In Shephard v Turner [2006] 2 P & CR 2, at [58] Carnwath LJ had referred to the policy underpinning ground (aa), and said “...the general purpose is to facilitate development and use of land in the public interest, having regard to the development plan and the pattern of permissions in the area.” Mr Diggle submitted that to modify an easement in circumstances where it restricts the user of a piece of land would be to further the statutory purpose.

Both counsel referred me to Hotchkin v McDonald [2004] 1 P & CR, in whicha decision of the Lands Tribunal to modify a restriction had been stayed pending an application to the court for a declaration on the construction of an express right of way, which was limited to the uses authorised in a schedule to the original conveyance of the manor house. HH Judge Rich QC, sitting as a Deputy High Court Judge, dismissed the claim for a declaration and held that the right of way could be used in connection with the use of the manor house if the use was not forbidden by the restrictive covenant. If the scope of the authorised uses was modified by the Lands Tribunal, then the right of way could be used in connection with the modified purposes.

HHJ Rich QC gave permission for his decision to be appealed and the case relied on by the parties is the decision of the Court of Appeal (Mummery LJ, with whom Thorpe LJ and Bennet J agreed) in which the appeal was dismissed.

Mr Diggle submitted that part 12.2.2 should be interpreted in the same way as the express grant in Hotchkin. In this case, as in that case, there was a clear link between the covenant and the easement. Both the covenant and the easement refer to the use of the application land as a private garden only. Mr Diggle relied in particular on the analysis of Mummery LJ at [12] to [16]:

“12 (3) The critical point is that the roadway is available as a right of way to and from the Manor House in connection with the lawful use of the Manor House. There is no dispute that the language of the grant must be construed in the light of the circumstances existing at the date when it was executed. The well known passage from the speech of Lord Hoffmann in ICS Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896 at 912 F–913 D, was cited in Mr Rhys’s skeleton argument.

13 On that approach it is possible, in my view, to arrive at a construction of the grant which makes practical sense. The starting point is that the language of the grant of the right of way makes an express link between the use of the right of way in connection with the Manor House and the lawful use of the Manor House. Mr Hotchkin’s construction, however, rests not just on linking the use of the right of way to the use of the Manor House but to the use of the Manor House as fixed or frozen forever at one particular time—that is as specified in the 1965 conveyance, the date when the restrictive covenant was imposed—regardless of whether the covenant is later validly modified or discharged by order of the Lands Tribunal to permit a different lawful use of the Manor House.

14

But, as I pointed out to Mr Rhys in argument, one of the circumstances existing at the date of the imposition of the user covenant was that it may not be legally possible to fix the use of the Manor House specified in the 1965 conveyance forever and ever. The lawful use of the Manor House may change from time totime. At the date of the grant of the right of way in connection with the use of the Manor House the restriction on user—although valid and effective as regards the property and the right of way—was subject always to possibility of judicial modification under the statutory authority of s.84 of the Law of Property Act 1925. Modifications can be obtained under s.84, if they are justified, in the judgment of the Lands Tribunal, by changes in the character of the property or by other material circumstances and the continued existence of the restriction would impede the reasonable use of the property without securing practical benefits to other persons.

15

The statutory jurisdiction under s.84 was not and, indeed, could not have been ousted by any agreement between the parties. The possibility of a non-consensual variation regarding the lawful use of the Manor House was, in my view, one of the relevant circumstances existing at the date of the 1965 conveyance, whether or not that was appreciated by the parties at the time.

16

If the user of the Manor House and the roadway giving access to it are so linked, as they are in the terms of this grant, it is unrealistic, to say the least, to suppose that the parties intended to create a situation in which the user of the Manor House could be lawfully changed without having a corresponding impact on the right of the way enjoyed in connection with it.”

Mr Diggle submitted that the parties to the original grant in this case cannot have been of the view that the use of the application land could be fixed and frozen forever. Given that the right of way is linked to the user of the application land, the interpretation of the grant would take account of a modified covenant. In considering all the circumstances of the case the Tribunal should pay particular attention to the initial agreement between the applicant and Mr Beeby, which made no references to the covenant or to the cutting down of the right of way.

In Re O’Byrne’s Application [2018] UKUT 395 (LC) planning permission had been granted for conversion of two barns in the grounds of a manor house into a dwelling, creating two dwellings at the property. Implementation of the permission was impeded by a restriction on use of the property imposed by the transfer in 2001. The permitted use was defined as “use as a single private dwellinghouse and for agricultural or forestry purposes”. A second impediment to implementation arose from the fact that the right of way to the property granted by the transfer was “for all purposes in connection with the use and enjoyment of the property for the permitted uses...”.

The Tribunal (HHJ Behrens and A J Trott FRICS) determined at [67] and [68]:

“67.

In our view the purposive construction submitted by Mr Hutchings QC is to be preferred to that of Mr Rosenthal. In our view the reasoning of Mummery LJ is directly applicable to the 2001 Transfer and we do not repeat it. We agree with Mr Hutchings QC that it makes no difference that the parties have chosen to define the Permitted Uses in a definition section and then incorporated that definition into the two other clauses. If we were to distinguish the two cases on that basis it would not, in our view do any credit to the law.

68.

Accordingly, we conclude that if we modify the restrictive covenant it will be lawful for Mr and Mrs O'Byrne to use the access road for the modified use.”

Mr Diggle submitted that this was further support for adopting the approach taken in Hotchkin.

For the objectors, Mr Power drew attention to paragraph [5] in Hotchkin, where Mummery LJ stated:

“...He [counsel for the appellant] pointed out, rightly, that the Lands Tribunal has no power to vary an easement as such.”

He also submitted that Hotchkin was clear authority to the effect that the extent of a right of way must be determined by reference to the language of the express grant. The difference in this case is that modification of the restriction in part 12.3.1 would leave part 12.2.2 unchanged.

Mr Power relied further on the case of The Ridgeway (Oxshott) Management Ltd v McGuiness, unreported in the County Court at Central London, 24/8/23, HHJ Monty KC. The case concerned a house on a residential estate where the estate roads were in the ownership of the claimant company. The defendants, along with the other owners of houses on the estate, had entered into a deed of easement by which rights were granted over the estate roads in connection with use of their land as a single dwelling. The defendants had been granted planning permission to demolish their existing house and build two new dwellings on the plot. The claimant was seeking a declaration that the rights would not accommodate the proposed development and an injunction preventing the defendants from implementing it.

In his decision HHJ Monty KC considered Hotchkin and O’Byrne, although not the paragraphs I have cited above since there was no associated restrictive covenant. He also considered the 2011 Law Commission publication Law Com No 327 “Making Land Work: Easements, Covenants and Profits a Prendre”. That publication had recommended that the jurisdiction of the Upper Tribunal (Lands Chamber) should be extended to cover modification and discharge of easements. He drew the inference that there was no current jurisdiction (there had been no subsequent reform) and concluded at [36] and [40]:

“36.

I therefore proceed on the basis that it is not open to [the defendants] to make an application under section 84 in respect of the easements, at least not without having an uphill battle, against the weight of judicial comment, to persuade the Tribunal that it does have jurisdiction.

...

The authorities cited support Mr Power’s submission that the Tribunal does not have jurisdiction under section 84(1) to discharge or modify an easement. The decisions in Hotchkin and O’Byrne, upon which Mr Diggle relies, both concerned situations where the Tribunal proposed to modify the authorised or permitted uses of an application property. The easements in each case were limited by reference in general terms, not specific terms, to the authorised or permitted uses, such that modification of those uses would make it lawful for the easement to include the modified uses.

In this case the right of way in part 12.2.2 is limited in specific terms to “...all purposes in connection with the use of Parcel A as a private garden for domestic recreation but not for any other purpose.” It is not linked to the restrictions in part 12.3.1 and any modification of the restriction would leave it unchanged.

I therefore determine that, even if I decided to modify the restriction on the application land, I have no jurisdiction to modify the limitation on the use of the right of way and it would remain as an impediment to implementation of the planning permission.