Nigel Briant v Hugo Baldacchino & Anor

Under Law of Property Act 1925, s.84(1)(aa), a restriction may be modified where it impedes a reasonable use and secures no practical benefits of substantial value or advantage. The assessment is fact-sensitive and must account for the development plan, the pattern of planning permissions, the age and context of the restriction, and other material circumstances. A benefit may have measurable value without being substantial. The Tribunal must also consider whether money provides adequate compensation. Where modification is granted, it may impose reasonable additional provisions, including construction-management requirements, with the applicant’s agreement.

The applicant owned land at Smugglers Hyde subject to a covenant preventing the erection of further buildings, save for an approved garage extension. The original cottage had been badly damaged by fire. The applicant sought a third modification of the covenant to permit a replacement dwelling, a second dwelling and additional garden buildings.

The first application had been refused in [2020] UKUT 0206 (LC), and the second in [2024] UKUT 0164 (LC). The objectors, owners of the adjoining property, relied on loss of amenity, privacy and tranquillity. The central questions were whether the covenant secured practical benefits of substantial value or advantage, whether modification would injure the objectors, and what compensation and conditions were appropriate.

1. The application was allowed under s.84(1)(aa) of the Law of Property Act 1925. Ground (c) was not established.

2. The proposed development was a reasonable use of the land. The covenant secured practical benefits to the objectors, including protection against loss of amenity and a reduction in the value of Kestor, but those benefits were not of substantial advantage. The Tribunal assessed the likely loss at no more than 7.5 per cent of Kestor’s hypothetical value, equivalent to £56,250.

3. In applying s.84(1B), the Tribunal took account of the development plan and the established pattern of planning permissions for two houses on the application land. It also considered that the covenant was created more than 38 years earlier in a materially different planning context, together with the other circumstances of the proposed development.

4. The design of RD1B addressed the earlier concerns about bulk and proximity to Kestor. ND2 was a single-storey dwelling screened by a two-metre fence and existing vegetation. The additional garden buildings were ordinary residential outbuildings and did not materially increase the impact.

5. The Tribunal exercised its discretion under s.84(1C) to require a scheme of management for construction works on plot A. The scheme was to address the sequence and timetable of works, repair of the boundary fence, construction traffic and any damage to the lane.

6. The restriction was to be modified, subject to the applicant accepting the modification, obtaining approval of the construction-management scheme and paying £56,250 to the objectors within four months.

This was a first-instance application in the Upper Tribunal (Lands Chamber). Earlier applications in the same dispute were refused in [2020] UKUT 0206 (LC) and [2024] UKUT 0164 (LC). The present application was allowed under s.84(1)(aa), subject to conditions and compensation.