Struan Gordon Robertson v James and Alexandra Pace

For discharge under ground (a) of section 84(1) of the Law of Property Act 1925, a restriction is not obsolete where its original object remains capable of fulfilment and continues to afford real protection. The inquiry requires identification of the covenant’s purpose, relevant changes in character, whether those changes defeat that purpose, and any other material circumstance.

Under ground (c), an applicant must show that discharge will not injure those entitled to the benefit. Where unrestricted discharge is sought without a defined development proposal, the Tribunal must consider realistic future uses. It need not speculate unrealistically, but uncertainty as to injury or constraint of the beneficiaries’ development options prevents discharge.

The applicant owned 215 acres of arable land burdened by a 1995 covenant restricting its use to agriculture. The objectors owned part of the land said to benefit from the covenant, principally woodland and adjoining land.

The applicant sought discharge under section 84(1)(a) and (c) of the Law of Property Act 1925. He contended that changes in the surrounding area had made the covenant obsolete and that discharge would cause no injury. The objectors contended that the covenant continued to protect their land and the retained land from incompatible future development.

The central issues were the covenant’s original purpose, whether that purpose had become obsolete, and whether complete discharge could occur without injury to those entitled to its benefit.

1. Application refused. The Tribunal had no jurisdiction to discharge the covenant because neither ground (a) nor ground (c) of section 84(1) of the Law of Property Act 1925 was established.

2. Applying the four-stage inquiry in Re Fermyn Wood [2018] UKUT 0411 (LC), the Tribunal inferred the covenant’s original purpose from the transfer and the known circumstances. Its likely purpose was to protect the development and operation of the sewage treatment works and proposed tannery by preventing development on the application land that might generate objections or otherwise be incompatible.

3. The relevant changes did not make that purpose obsolete. The application land remained agricultural, the benefitted woodland retained its rural character, and the neighbourhood remained a mixture of countryside, agriculture, transport and energy infrastructure. The covenant was permanent rather than confined to obtaining planning permission. Although the tannery was not built, other potentially incompatible or odour-generating development on retained land remained possible.

4. Following Re Truman, Hanbury, Buxton & Co. Ltd’s Application [1956] 1 QBD 261, a covenant is not obsolete where its object remains capable of fulfilment and it gives real protection to those entitled to enforce it. Those conditions were met.

5. Ground (c) also failed. Since the applicant sought complete discharge without identifying a proposed alternative use, the Tribunal considered the realistic range of future uses. It could not be shown with confidence that discharge would not constrain the objectors’ and possible other beneficiaries’ future development options, including potentially unneighbourly or odour-generating uses, or impair woodland amenity. The objection was also not, proprietorially speaking, frivolous or vexatious within Ridley v Taylor [1965] 1 WLR 611.

not stated in the judgment.