Jocelyn May Sutton v Steven Baines & Anor

Under section 84(1)(aa) of the Law of Property Act 1925, an applicant for discharge of a restrictive covenant must establish that any practical benefit secured for the beneficiary is not of substantial value or advantage.

A blanket discharge of a covenant restricting land to one dwelling may fail where there is no current planning permission or defined scheme. The unknown nature of any future development can prevent a reliable assessment of the effect on neighbouring land. The restriction may then retain a substantial practical benefit by enabling the neighbour to prevent a second dwelling being built close to its property.

The applicant owned a house with a large side garden in a residential suburb. A 1970 conveyance restricted the land to use as a single private dwellinghouse. She wished to sell or develop the garden for a second house, but an earlier outline planning permission had expired and no current detailed permission existed.

The adjoining neighbours objected on grounds including privacy, enclosure and diminution in value. The applicant sought a complete discharge, rather than a modification, under section 84(1)(aa) of the Law of Property Act 1925. The central issue was whether the covenant secured practical benefits of substantial value or advantage to the objectors.

1. The application was refused. The proposed construction of a house in a residential area was a reasonable use of the land, and the covenant plainly impeded it. The Tribunal adopted the questions commonly used for applications under section 84(1)(aa), while stressing that they do not replace the statute: Re Bass Ltd’s Application (1973) 26 P&CR 156.

2. The covenant secured a practical benefit for the objectors. It enabled them to prevent a second house being built nearer to their property. Some concerns could arise from an extension to the existing house, but that was improbable and did not remove the practical benefit of the restriction.

3. The applicant had not proved that the benefit was not of substantial value or advantage. A complete discharge, without current planning permission or a fixed development proposal, would expose the objectors to any development that the applicant or a future purchaser might later obtain permission to carry out. The resulting uncertainty made the effect on their property impossible to assess sufficiently. The statutory ground was therefore not established.

4. The Tribunal declined to discourage a future application. Re Snooks’ Application [2014] UKUT 623 (LC) differed because that application had also failed on other grounds. Any future application would be determined on its merits. The decision was final except as to costs, which would ordinarily be awarded to the objectors unless they had acted unreasonably.

not stated in the judgment.