September 2026
Senior Partner Jen Butcher and Associate Katie Hardie from Acuity Law's Property Litigation team have secured an impressive success before the Upper Tribunal (Lands Chamber), obtaining the rare award of a full discharge of a restrictive covenant on a ‘ground (a)’ argument, on the basis that it had become obsolete following significant changes to the surrounding area.
The case concerned former agricultural land in Surrey which benefited from planning permission for the construction of a residential development scheme consisting of five new dwellings.
Part of the development land was subject to a restrictive covenant dating back to 1996, limiting its use to "a private dwellinghouse in one residential occupation". Our client argued that the covenant had originally been imposed by a developer to control an access road as part of arrangements designed to protect future development opportunities on retained farmland.
Our client, the freehold owner of the site, had secured detailed planning permission for five dwellings across the development area, three of which were located on the burdened land. The restrictive covenant prevented the implementation of that planning permission.
The benefit of the covenant was held by the owner of a neighbouring Grade II listed farmhouse, who objected to its discharge.
The Application
Acting on behalf of our client, alongside Katie Helmore of Landmark Chambers, an application was made to the Upper Tribunal under section 84(1) of the Law of Property Act 1925 on three separate grounds:
- Ground (a): the covenant had become obsolete due to changes in the character of the property and surrounding area;
- Ground (aa): the covenant impeded a reasonable use of the land while providing no practical benefit of substantial value to the objector; and
- Ground (c): discharge of the covenant would not cause injury to the beneficiary.
The application detailed the history of the site and the significant transformation of the surrounding area following the construction of a substantial 132-home residential development on former farmland nearby.
Expert valuation evidence was obtained on behalf of our client, concluding that the proposed development would have no adverse impact on the neighbouring property's amenity, privacy or value.
The Objector's Position
The objector argued that the covenant continued to serve an important purpose by protecting the setting of the listed farmhouse and preventing overdevelopment.
Concerns were raised regarding overlooking, traffic, noise, light pollution and surface water flooding. The objector also relied on historical evidence suggesting the covenant was intended to protect the character of the farm setting for many decades.
Notably, no expert evidence was provided in support of these concerns.
The Tribunal's Decision
Following a site inspection and hearing, the Upper Tribunal ordered that the covenant be discharged in full and without compensation.
The Tribunal rejected the objector's concerns, finding that the proposed development would have no meaningful impact on the enjoyment or value of the neighbouring property. Evidence demonstrated there would be no overlooking, no material increase in noise and only negligible traffic impacts when considered alongside the existing residential development in the area.
A Rare Success on Ground (a)
The most significant aspect of the decision was the Tribunal's finding that the covenant had become obsolete under Ground (a).
Applications under Ground (a) are widely recognised as difficult to succeed on. The Tribunal must be satisfied not merely that a covenant is old or inconvenient, but that changes in the character of the property or neighbourhood mean it should now be regarded as obsolete.
In this case, the Tribunal accepted that the covenant's original purpose was not to preserve the setting of the listed farmhouse, as argued by the objector. Instead, its purpose was to preserve future development opportunities on retained farmland and maintain control over access arrangements.
The Tribunal found that those objectives had been fully achieved. The retained farmland had since been developed as part of the 132-home scheme, the access infrastructure had been upgraded and the surrounding area had evolved from a rural setting into an edge-of-town residential neighbourhood.
Importantly, the Tribunal also took into account the objector's involvement in facilitating those changes, including their support for the wider residential development and their agreement to withdraw planning objections in return for remuneration.
The Tribunal further confirmed that the application succeeded on Grounds (aa) and (c), finding that the covenant no longer provided any practical benefit of substantial value and that its discharge would cause no injury to the objector.
Why This Matters
This decision is a notable example of the Upper Tribunal being prepared to discharge a restrictive covenant on the basis that it has genuinely outlived its original purpose.
The judgment will be of particular interest to developers and landowners dealing with historic restrictions imposed to protect future development opportunities. Once those opportunities have been realised and the character of the surrounding area has fundamentally changed, the Tribunal may be prepared to conclude that the covenant has served its purpose and should no longer restrict the use of the land.
The case also highlights the importance of robust expert evidence and a clear understanding of the original purpose behind a restrictive covenant when pursuing an application under section 84.
