Graham v Easington District Council

Under section 84 of the Law of Property Act 1925, planning permission is relevant to an application to discharge a restrictive covenant, but it is not determinative. The tribunal must make its own assessment of the practical benefits secured by the covenant. Changed circumstances, including potential future effects, are matters of fact and judgment. An appellate court should not reweigh that assessment and may intervene only for an error of law or perversity. Decisions of expert tribunals should be read fairly and benevolently. Reasons need not be elaborate where the decision, read in context, makes its basis sufficiently clear.

The appellant sought discharge of a restrictive covenant affecting land on an industrial estate. The covenant limited use to a coach depot with an associated bungalow. The local authority, which was both entitled to the benefit of the covenant and the local planning authority, had granted outline planning permission for about 30 houses on the site but later opposed discharge.

The Lands Tribunal refused discharge under section 84 of the Law of Property Act 1925. It concluded that the authority’s practical benefits were not of substantial advantage and that subsequent changes in industrial and housing land availability did not alter that conclusion. The appeal concerned the relevance of the planning permission, alleged changes of circumstance, the evidential basis of the decision and the adequacy of the Tribunal’s reasons.

1. Appeal dismissed. Section 84(1)(aa) of the Law of Property Act 1925 permits discharge where the restriction impedes reasonable use but secures no practical benefits of substantial value or advantage, with money adequate compensation for any loss or disadvantage.
2. Practical benefits are construed widely. Planning permission granted by the same authority is relevant but not determinative. The Tribunal must make its own assessment and may treat the authority’s recent permission as strong evidence of its view of the local balance of interests. The authority is not bound by its own permission when acting as landowner and covenant beneficiary.
3. Whether circumstances have changed, and whether any change is sufficiently substantial to affect the statutory balance, are questions of fact and judgment for the Tribunal. Potential future harm may be relevant, but the Tribunal was entitled to give limited weight to a tentative redevelopment proposal which had not become a planning application.
4. An evidential challenge raises an error of law only where the Tribunal’s conclusion is perverse. The Tribunal was entitled to prefer the authority’s evidence on industrial land availability and to conclude, on the evidence as a whole, that the practical benefits were not substantial.
5. Although the Tribunal could have explained its crucial conclusion more fully, its decision was intelligible when read fairly and benevolently against its detailed account of the evidence and arguments. Remission was unnecessary.

Lord Justice Tuckey and Lord Justice Jackson agreed with Lord Justice Carnwath. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): [2008] EWCA Civ 1503. Appeal from the Lands Tribunal dismissed.
• Lands Tribunal: Mr A J Trott refused the application to discharge the restrictive covenant under section 84 of the Law of Property Act 1925.