Christopher and Lucy Anthony v Christopher and Patricia Hardy

Under section 84(1)(aa) of the Law of Property Act 1925, a restrictive covenant may be modified where it impedes reasonable use and secures no practical benefits of substantial value or advantage to those entitled to its benefit, provided money is adequate compensation. The assessment is fact-sensitive and must consider the actual effect of the proposed works on protected amenity, including openness, light, privacy, space and views. Establishing jurisdiction does not compel an order: the Tribunal retains a discretion. A covenant may be modified for modest works while being retained to protect against materially more harmful future development.

The applicants owned Welbeck House and sought, under section 84 of the Law of Property Act 1925, to modify or discharge a covenant preventing alterations or additions. They wished to complete a conservatory beside the boundary with Roche House, owned by the objectors, and widen a garage opening to improve access to the garden.

The objectors relied on the covenant to preserve openness, light, privacy, a sense of space and views. The Tribunal considered whether the covenant secured practical benefits of substantial value or advantage, whether the statutory jurisdiction was engaged, and whether the discretion to modify should be exercised.

1. The application under section 84(1)(aa) of the Law of Property Act 1925 was allowed in part by modification of the covenant. The covenant was not discharged. No compensation was awarded.
2. The covenant impeded reasonable use of the applicants’ land. The relevant question was whether it secured practical benefits of substantial value or advantage to the objectors. The assessment required examination of the actual effect of the conservatory and garage works on the claimed benefits.
3. The conservatory would not materially reduce openness or light. It would cause only limited potential intrusion into the utility room and would not add materially to overlooking. Any loss of privacy was a practical benefit, but not one of substantial value. The alteration to the garage opening would have no relevant effect. The covenant therefore secured no practical benefits of substantial value or advantage in relation to the proposed works.
4. Even where a jurisdictional ground is established, section 84 confers a discretion rather than an automatic entitlement to relief. The Tribunal retained the covenant because it could protect against a much larger extension or redevelopment. The recent age of the covenant, the fact that the objector was an original covenanting party, the applicants’ conduct, and the qualified nature of the consent requirement were relevant discretionary factors.
5. The modification was confined to the works proposed. It did not create a precedent or improve the prospects of any future application, because applications of this kind are fact-sensitive: Martin v Lipton [2020] UKUT 0008 (LC).
6. The Tribunal had no jurisdiction under section 84(2) to make a declaration concerning the meaning or extent of the covenant.

First-instance determination by the Upper Tribunal (Lands Chamber). A right of appeal to the Court of Appeal on a point of law exists only with permission.