Kirsty Crossland & Anor v Keith Anthony Fritchley

Under section 84 of the Law of Property Act 1925, planning permission does not itself establish that a restrictive covenant should be modified. The Tribunal must assess whether the proposed user is reasonable, whether the covenant impedes it, and whether the covenant secures practical benefits of substantial value or advantage to those entitled to its benefit. Privacy, outlook, light and protection against ordinary disturbance may amount to practical benefits, but their value is fact-sensitive. The Tribunal retains a discretion to refuse relief even where the statutory conditions are met. A covenant was modified where the identified effects on a neighbouring dwelling were limited or adequately mitigated, subject to payment of compensation.

The applicants owned a house burdened by a restrictive covenant preventing alterations or additions without the beneficiary’s consent. They had planning permission for substantial alterations and extensions. The neighbouring owner, who was entitled to the benefit of the covenant, objected on the grounds of overlooking, loss of privacy and amenity, loss of light, possible nuisance and increased occupancy.

The application was initially for discharge but was amended shortly before the hearing to seek modification permitting the development authorised by the planning permission. The central issue was whether the covenant impeded a reasonable user and failed to secure practical benefits of substantial value or advantage under section 84(1)(aa) and section 84(1A) of the Law of Property Act 1925.

1. The application was allowed under section 84(1)(aa) of the Law of Property Act 1925. The covenant was modified to permit implementation of the specified planning permission, including permitted renewals, non-material amendments and approvals under its conditions.
2. The Tribunal adopted the structured approach identified in Re Bass Ltd’s Application (1973) 26 P&CR 156: whether the proposed user was reasonable, whether the covenant impeded that user, and whether the impediment secured practical benefits of substantial value or advantage.
3. The proposed works were a reasonable user and were impeded by the covenant. The additional overlooking created some practical benefit, but the distance between the properties, the position of the extension and existing tree screening provided meaningful mitigation. The benefit was not substantial in value or advantage.
4. The loss of part of the outlook, including the western view of the pinfold, was at most a minor benefit of marginal value. The planning assessment of amenity was not decisive because planning control and the section 84 jurisdiction are distinct systems, although they may overlap. The evidence did not establish a material loss of light.
5. The covenant did not secure protection against ordinary residential disturbance or control the level of occupation. Applying the principle in Martin v Lipton [2020] UKUT 8 (LC), it did not secure tranquillity against the ordinary consequences of life in a low-density residential neighbourhood.
6. The statutory threshold was therefore met. The Tribunal nevertheless retained a discretion whether to grant relief, and nothing justified refusing modification. Compensation of £15,000 was ordered, reflecting the accepted valuation evidence and the relevant diminution in value.
7. The modification was conditional on acceptance of the wording and payment of compensation within three months.