Mikael Armstrong & Anor v The President, Fellows and Scholars of The College of The Holy and Undivided Trinity in The University of Oxford of The Foundation of Sir Thomas Pope

Under Law of Property Act 1925, an application to modify a restrictive covenant proceeds through a jurisdictional stage and a discretionary stage. Ground (aa) requires reasonable use to be impeded and either no practical benefit of substantial value or advantage, or a conflict with the public interest; money must adequately compensate for resulting loss. Mere enforcement control is insufficient, but control that enables effective estate management and protects wider community interests may amount to a substantial practical benefit. A narrowly framed modification may be granted where it causes no injury to the covenant beneficiary. Design restrictions may remain where they secure substantial practical benefits and their relaxation would cause injury.

The Armstrongs bought Clearview, a bungalow with a large garden, and obtained permission in principle to build a second dwelling. The College, which held the benefit of restrictive covenants imposed on the property in a 1960 transfer, opposed their application under the Law of Property Act 1925. They sought discharge or modification of restrictions limiting the property to one bungalow, requiring the College's approval of building design, and prohibiting nuisance. The Tribunal considered whether the statutory grounds were met for each restriction.

1. Application granted in part. The one-house restriction was modified to allow two bungalows in total, including the existing dwelling. The second must follow plans, designs, elevations and specifications approved in writing by the College. The applications concerning the design and nuisance restrictions were refused.
2. Under Law of Property Act 1925, s.84, the Tribunal first determines whether a statutory ground is made out and then whether, and to what extent, to exercise its discretion. Ground (aa) requires reasonable use to be impeded and either the absence of practical benefits of substantial value or advantage, or that the restriction is contrary to the public interest. Money must provide adequate compensation for resulting loss or disadvantage. Ground (c) is met where the proposed change will not injure those entitled to the covenant's benefit.
3. For the one-house restriction, the College accepted that a second dwelling was a reasonable use. The Tribunal rejected the College's concern that success would create a precedent for similar development: no comparable plots likely to be developed were identified, and a broadly comparable plot had a more recent restriction allowing up to three dwellings. A limited modification allowing one further dwelling would cause no injury, so ground (c) was satisfied.
4. The design restriction secured a substantial practical benefit. Mere control through covenant enforcement is not enough; something more is required. The ability to manage development as part of an estate-wide strategy, and to protect the village environment and residents' interests, may go beyond mere control. The Tribunal applied the reasoning in Great Jackson Street Estates Ltd v Manchester City Council [2025] EWCA Civ 652, while recognising that the College was not a public body. It also considered the estate-management comparison in Edgware Road (2015) Limited v The Church Commissioners for England [2020] UKUT 104 (LC). The College's ability to protect design was a substantial practical benefit. The potential disadvantage from relaxing that control could not be quantified or adequately compensated, and the absence of detailed plans added uncertainty. Ground (aa) was not made out; relaxation would also injure the College, so ground (c) failed.
5. The nuisance restriction was not pursued with real vigour, and the Tribunal was not satisfied that either ground was established. The College's valuation evidence was given no weight because the expert had been instructed to answer a different question; the Tribunal referred to Butler v Flagship Housing Group [2026] UKUT 182 (LC). The parties were directed to submit an agreed draft order within 28 days. Costs remained to be agreed or determined.

not stated in the judgment.