[2025] UKUT 295 (LC)

Does the Tribunal have jurisdiction to modify the restrictions?

The applicants originally sought discharge or modification of the restrictions, but amended that at the hearing to an application for modification of the restrictions to permit the works done in breach of them. The application was made under grounds (a), (aa) and (c).

As to ground (a), the objectors say that the restrictions are not obsolete since there has been no change in the character of the property or the neighbourhood or other circumstance which should cause them to be deemed so. As to (aa) they do not dispute that the works are a reasonable use of Hillside but say that the restrictions secure to them the substantial practical benefits of a view, of not being overlooked, and of discouraging breaches of covenant at Gap House and Claremont. They say that money would not be adequate compensation. Their expert witness says that the works have resulted in a 10% diminution in value of their property, equivalent to £230,000. The objectors also say that even if the Tribunal finds that it does have jurisdiction to modify the restrictions it should not exercise its discretion to do so because the applicants attempted to mislead them, and then carried out the works without making an application to the Tribunal, knowing that they would be in breach of the restrictions.