31st March 2021
Developers will be all-too aware that restrictive covenants can prevent land being used for a particular purpose. Such restrictions may restrict the type or density of development that can take place, or may even prohibit development altogether. Often restrictions will be historic, yet their existence can have a significant impact upon the development potential, and therefore on the marketability and value, of land.
The Law of Property Act 1925 (LPA 1925) affords the Upper Tribunal (UT) discretionary jurisdiction to modify or discharge restrictive covenants affecting land if one or more of the grounds in section 84 LPA 1925 applies, namely:
The recent case of Re Copleston and Norton  is of interest (albeit possibly unwelcome to developers) because it seemingly widens the circumstances in which objectors may oppose applications to modify/release covenants under section 84, and concurrently limits scope for such applications to succeed.
Ms Copleston and Mr Norton (the applicants) obtained planning permission to erect a new house in the grounds of their home. The proposed development site was burdened by restrictive covenants which prohibited use of the land other than as a private garden and which prohibited the erection of buildings such as sheds and other outhouses. The applicants applied to release/modify the restrictions to enable the development to proceed on the alternate bases that the covenants were obsolete and/or they restricted reasonable use of the land. Mr and Mrs Harris, who owned a substantial property across a road from the proposed development site, objected.
The Harris’ argued, in accordance with section 84 (1A) LPA 1925, that the restrictions secured for them practical benefits of substantial value or advantage which could not be adequately compensated in money. However, only part of the Harris’ land  benefitted from the restrictive covenants. The UT therefore had to determine whether it should consider the effect of the proposed development on the whole of the Harris’ property, or on just the benefitting land. (In the former scenario, the effect on the Harris’ property overall would be significant, and the application to release/modify restrictive covenants would fail. In the latter scenario, the effect on the benefitting land only would be small, and the application to release/modify would succeed.)
The UT decided that it should consider the effect of the proposed development on the whole of the Harris’ property. The UT’s reasoning was:
The UT justified its decision further by pointing out that this was not a case where an objector had acquired benefitting land as a means of leveraging its position against an applicant, nor was it a case where the beneficiaries owned only a minimal amount of benefitting land.
The Re Copleston and Norton decision is, on the face of it, unhelpful for developers. It does emphasise, however, the fact- and context- specific nature of section 84 application cases, and the discretionary nature of the UT’s jurisdiction. As such, developers may wish to note the following practical advice:
If you would like any advice or assistance in connection with the enforcement, modification or discharge of any restrictive covenants – whether that be in relation to freehold or leasehold land; and whether it be in relation to commercial negotiations or legal recourse via an UT application – please do not hesitate to contact David Manda or any member of our Real Estate Litigation team.
  UKUT 18 (LC)
 in fact, land which was separated from the proposed development site by the road and by a substantial detached house
 Gilbert v Spoor  Ch 27
 The terms of any title indemnity insurance must be considered before any contact is made with beneficiaries as such contact may well invalidate any insurance policy