Lesley Ann Garton v Wheatcroft Land (Thoroton) Limited & Ors

Section 84 of the Law of Property Act 1925 does not give the Upper Tribunal jurisdiction to modify an easement merely because its limited use prevents development authorised by a modified or discharged covenant. An easement linked in general terms to permitted use may accommodate a use authorised by modification of that use, but a right of way limited in specific terms remains subject to those terms.

A restriction is not obsolete where it continues to fulfil the purpose objectively indicated by the circumstances in which it was imposed. Preventing unmanaged additional traffic and parking, and providing reassurance and avoiding associated risk and uncertainty, may amount to practical benefits of substantial advantage under section 84(1A).

The applicant sought discharge or modification under section 84(1) of the Law of Property Act 1925 of a restriction over land adjoining her garden. The restriction prohibited buildings or structures and required use as a private garden for domestic recreation only.

The land also benefited from a right of way over a private access road. That right was expressly limited to purposes connected with use of the land as a private garden for domestic recreation. Planning permission had been granted for a new dwelling, with access, parking and garden uses on the application land.

The central issues were whether the Tribunal had jurisdiction to modify the limited right of way, and whether the covenant should be discharged or modified under grounds (a), (aa) or (c) of section 84(1).

1. Jurisdiction over the right of way. The Tribunal had no jurisdiction under section 84(1) to modify the limitation on the easement. Hotchkin v McDonald and Re O’Byrne’s Application concerned easements expressed in general terms by reference to the authorised or permitted use of the property. Modification of that use consequently affected the operation of the easement. Here, the right of way was limited in specific terms to purposes connected with use of the land as a private garden for domestic recreation. It was not linked to the covenant in a way that would make modification of the covenant alter the easement. The right of way therefore remained an impediment to the proposed development.
2. Ground (a). The restriction was not obsolete. It had been imposed only six years earlier, against the background of the planned development of Thoroton Farm. Objectively, it continued to provide an exclusive estate free from additional traffic using the private access road. It therefore still fulfilled its likely purpose.
3. Ground (aa). The planning permission made the proposed use reasonable, but the restriction secured practical benefits of substantial advantage to the objectors. The access road was narrow and the proposed development would create unmanaged additional traffic, difficulties for larger vehicles and a risk of parking on the access road. The restriction also provided reassurance, and avoided risk and uncertainty concerning management and control of the road. Prospective litigation over the separate right of way was not itself a practical benefit, but the risk of litigation associated with managing traffic from the proposed use formed part of the relevant benefits.
4. Ground (c). Since substantial practical benefits were secured, the application could not succeed under ground (c). The Tribunal therefore had no jurisdiction under grounds (aa) or (c), and it was unnecessary to consider compensation.
5. In any event, the Tribunal would have been slow to exercise its discretion to modify a restriction entered into so recently. The application was refused.