Paul Howard & Ors v Sunita Surana

Under Law of Property Act 1925 section 84, satisfaction of a statutory ground gives the Tribunal jurisdiction but does not require it to modify a restrictive covenant. The Tribunal must then exercise its discretion on the circumstances at the hearing.

A completed breach does not prevent a future modification where the jurisdictional ground is independently made out and the modification neither extinguishes liability for the earlier breach nor deprives covenant beneficiaries of a damages claim. A planning permission described as a variation is not, where it makes significant changes to the scheme, necessarily a renewal of the permission to which an earlier modification order was confined.

The applicants owned adjoining plots on the Fairmile Estate at 17 and 19 Icklingham Road, Cobham. Restrictive covenants required the land to remain a communal close and prohibited building.

In an earlier application by the objector, Re Surana’s Application [2016] UKUT 0368 (LC), the Tribunal modified the covenants to permit two specified houses with access over the objector’s drive, subject to retention of the front hedge. The applicants later built materially altered houses under later planning permissions and sought new vehicular accesses through that hedge.

The applications under section 84(1)(aa) of the Law of Property Act 1925 raised whether the proposed use met the jurisdictional requirements and, if so, whether the Tribunal should modify the covenants despite construction having proceeded outside the earlier order.

1. Applications granted. The new accesses and the substantially completed houses were a reasonable user of the land. The restrictions impeded that user, but did not secure to the objector or other beneficiaries a practical benefit of substantial value or advantage in preventing it. There was no greater overlooking, material loss of space, or greater harm to the building scheme than the development already permitted. The jurisdictional stage under section 84(1)(aa) and section 84(1A)(a) of the Law of Property Act 1925 was therefore satisfied.

2. The Tribunal then had, but was not obliged, to exercise its discretion. Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 confirmed that the statutory power is discretionary after a ground has been established. Its concern with deterring a cynical breach that creates a land-use conflict did not require refusal here. The applicants had not established jurisdiction by presenting the Tribunal with a fait accompli under the public-interest limb, and the objector retained any claim for damages for past breaches.

3. Modification operates for the future. It neither rewrites the history of the breach nor absolves those responsible for it. In circumstances analogous to Housing Solutions v Smith [2023] UKUT 25 (LC), it was not the Tribunal’s role to punish when future modification would not cause relevant injury and a financial remedy for the earlier breach remained available.

4. The restrictions were modified to permit the development authorised by the constructed planning permission and the access permission. The front hedge must be maintained or renewed, save for the permitted driveways. The parties were directed to submit a draft order.

The Tribunal added that a later permission involving significant changes to floor area, siting or appearance is not ordinarily a renewal encompassed by an order tied to a particular planning permission.

• Upper Tribunal (Lands Chamber): In the earlier related application, Re Surana’s Application [2016] UKUT 0368 (LC), the Tribunal modified the restrictions for a specified development and access arrangement. This was a further application under section 84, not an appeal from that decision.