Graham Victor Baker & Anor v Alan Cucknell & Ors

Under section 84 of the Law of Property Act 1925, a restrictive covenant may be modified where it impedes a reasonable use and does not secure practical benefits of substantial value or advantage. The Tribunal must assess each asserted benefit in its factual setting, including its cumulative effect. Temporary construction disturbance, modest effects on privacy, traffic, access and maintenance contributions may be practical benefits without being substantial. Satisfaction of a statutory ground establishes jurisdiction, but modification remains discretionary. The age of the covenant and the applicant’s status as original covenantor may affect discretion, although a covenant of twenty-five years was not very recent. Modification may be conditional on payment of compensation for identifiable loss or disadvantage.

The applicants owned land containing a workshop near three neighbouring houses in Brunswick Court. They had planning permission to demolish the workshop and construct a bungalow, but a restrictive covenant permitted use only as a single private dwellinghouse with garden and garage and prohibited trade or business use.

The applicants sought modification under section 84(1)(aa) and (c) of the Law of Property Act 1925. The neighbouring owners objected, relying on disturbance, privacy, traffic, access, maintenance costs and the risk of further development. The central issues were whether the covenant impeded a reasonable use, secured practical benefits of substantial value or advantage, whether money would provide adequate compensation, and whether the Tribunal should exercise its discretion to modify the covenant.

1. Jurisdiction under ground (aa). The proposed bungalow was a reasonable residential use, and the covenant impeded it. The Tribunal considered the asserted practical benefits individually and cumulatively. Construction disturbance was a legitimate concern, but was temporary and not a benefit of substantial value or advantage. The possible effect on the character of Brunswick Court, additional traffic, loss of privacy and views, and the allocation of estate-road maintenance costs likewise did not reach that threshold. The aggregate of the benefits did not do so either.
2. The suggested precedent effect of modifying the covenant did not justify refusal. In Martin v Lipton [2020] UKUT 0008 (LC), the Tribunal had emphasised that section 84 applications are fact-sensitive and that the outcome of one case cannot be assumed to determine another. The proposed modification had no relevant precedent effect in relation to a neighbouring site without the relevant access right or covenant.
3. Discretion. Satisfaction of ground (aa) established jurisdiction but did not require modification. The covenant had existed for twenty-five years. Although the applicant was the original covenantor, it was not a very recent covenant and the circumstances were not comparable to those in Hodgson v Cook [2023] UKUT 41 (LC). The Tribunal therefore gave no weight to the original covenantor point and exercised its discretion to modify the restriction. The reasoning in Christopher and Lucy Anthony v Christopher and Patricia Hardy [2025] UKUT 209 (LC) provided relevant guidance.
4. Compensation and order. Compensation was awarded for disturbance, privacy and access: £10,000 to the owners of 1 Brunswick Court, £5,000 to the owners of 2 Brunswick Court and £3,500 to the owners of 3 Brunswick Court. The restriction was ordered to be modified under section 84(1)(aa), subject to the applicants accepting the modification and providing evidence within three months that the compensation had been paid.