Tega Awinoron & Anor v London Borough of Barking and Dagenham

Modification of a restrictive covenant under Law of Property Act 1925, section 84, requires the statutory jurisdictional conditions to be established before discretion arises. A covenant is not obsolete merely because the neighbourhood has changed if a distinct purpose of the covenant remains capable of achievement. A covenant may secure a practical benefit even where the covenantee retains only a reversionary interest, particularly where it protects retained property and the interests of tenants. The applicant must also establish that money would provide adequate compensation for the disadvantage caused by modification. Where the benefit cannot sufficiently be valued in monetary terms, the Tribunal lacks jurisdiction to modify the covenant.

The applicants owned a property subject to a covenant requiring the objector’s written consent before alterations or additions. They sought modification under section 84(1), grounds (a) and (aa), to retain an enclosed porch extension and a fence which had divided a previously shared porch and access path.

The objector owned the adjoining property and opposed modification. The covenant formed part of a transfer scheme for housing on the Becontree Estate. The applicants relied on changes to the estate and similar unauthorised porch alterations. The objector relied on the continuing protection of its retained property and its tenants. The central issues were whether the covenant was obsolete, whether it secured practical benefits of substantial value or advantage, and whether money would be adequate compensation.

1. Ground (a): obsolescence. The covenant had an original purpose of preserving the visual character and appearance of the neighbourhood. Changes in ownership and numerous alterations meant that this general purpose could no longer be achieved. However, the covenant also had a secondary purpose: enabling the objector to guard against changes affecting the character and amenity of retained properties. That purpose remained capable of achievement because the objector continued to enforce the covenant where it retained adjoining property.
2. The works had a particularly significant effect by narrowing the adjoining property’s access and depriving it of shared access along the communal path. The covenant therefore remained relevant and was not obsolete.
3. Ground (aa): practical benefit and compensation. The covenant secured a practical benefit by protecting the objector’s retained property and its tenants from unauthorised alterations. The evidence did not establish that the benefit was of substantial value or advantage. Nevertheless, jurisdiction also required proof that money would be adequate compensation for the disadvantage caused by modification.
4. The evidence did not show that the disadvantage could be measured in monetary terms. This was a rare case in which money would not provide adequate compensation. The Tribunal therefore had no jurisdiction to modify the covenant under ground (aa).
5. The application failed without the need to exercise discretion. The Tribunal nevertheless observed that the breach was not a cynical breach of the kind discussed in Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] 1 WLR 4783 (SC): the applicants acted in response to anti-social behaviour and for peace of mind, rather than to obtain profit. The application was refused.

This was an application to the Upper Tribunal (Lands Chamber). The judgment records that the objector had obtained mandatory and prohibitory injunctive relief in the County Court at Romford on 15 July 2024, and that enforcement of that injunction was said to be under appeal. No appellate decision in that injunction proceedings was determined in this judgment.