Nigel James Rutherford Briant v Hugo John Baldacchino

Under section 84(1)(aa) of the Law of Property Act 1925, the Tribunal has no jurisdiction to modify a restrictive covenant where, in preventing the proposed reasonable use, the covenant secures practical benefits of substantial value or advantage to the benefiting land.

Those benefits may include preserved residential amenity and the avoidance of a substantial loss in value caused by uncertainty over future development. Their significance is assessed against the position if the land were developed in a manner compliant with the covenant. A proposal requiring modification should ordinarily be clearly defined, and planning permission will rarely be dispensed with where it is needed to assess the proposal’s likely effect.

The applicant sought, for a second time, modification of a covenant preventing further building on land formerly occupied by a fire-damaged cottage. He sought permission under grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925 to construct one or two dwellings from a range of alternative schemes.

An earlier application concerning different schemes had been refused in Briant v Baldacchino [2020] UKUT 0206 (LC). In the renewed application, four proposals had planning permission and three did not. The objector relied on the covenant’s protection of the amenity and value of his adjoining home and garden.

The central issue was whether the covenant, by impeding the proposed redevelopment, secured practical benefits of substantial value or advantage.

1. Application refused. The Tribunal had no jurisdiction under ground (aa) to modify the covenant for any of the proposed developments. Each proposal with planning permission was a reasonable use, but the covenant secured the objector practical benefits of substantial advantage or value in preventing it.

2. Section 84(1)(aa), read with section 84(1A) of the Law of Property Act 1925, required the Tribunal to determine whether the restriction secured practical benefits of substantial value or advantage to the benefiting land. If it did, the statutory condition for modification was not met. The parties appropriately compared the proposals with a modern replacement dwelling of similar location and scale to the former cottage, rather than with the existing derelict state of the site.

3. For the plot A proposals, the greater bulk and length of the proposed houses, their proximity to the boundary, their raised position, and their potential intensity of occupation would be overbearing and intrusive to the adjoining garden. The covenant therefore secured substantial practical advantage by preventing those schemes.

4. For plot B, even the less intrusive single-storey proposal would sever the site while leaving unresolved the prospect of later development on plot A. That uncertainty, together with the risk of further proceedings needed to protect the covenant, would sustain a £65,000 loss from the benchmark value of the objector’s property. This was a substantial benefit of value secured by the covenant.

5. The proposals without planning permission were insufficiently defined for modification under ground (aa). The Tribunal emphasised that a section 84 application is not a consultation process: future alternative or undefined proposals, particularly those involving severance, were unlikely to succeed without properly addressing the covenant’s amenity benefits.

• Upper Tribunal (Lands Chamber): An earlier application to modify the same covenant was refused in Briant v Baldacchino [2020] UKUT 0206 (LC).
• Upper Tribunal (Lands Chamber): The renewed application was refused because the covenant secured practical benefits of substantial advantage or value.