The Upper Tribunal has held that a restrictive covenant which only benefitted a garden was still of substantial practical benefit to the whole property and this could be taken into consideration in deciding whether or not it was appropriate to discharge it.
The applicants wished to build a new house in the garden of their home but were prevented from doing so by restrictions prohibiting building and other uses.

The applicants had secured a planning consent for the project and accordingly made an application to ask the Tribunal to modify or discharge the restrictions under section 84(1)(a) and (aa) of the Law of Property Act 1925.
Three sets of adjoining landowners claimed they had the benefit of the restriction and put in objections to the application.  The closest of these in proximity to the applicant’s land was a Mr and Mrs Harris, whose garden enjoyed the benefit of the restriction.
In contemplating whether it was able to discharge the restriction under ground 84(1)(aa) of the Act, the Tribunal was required to consider whether allowing the restriction to remain in place would impede some reasonable user of the land.  If so, the Tribunal was authorised to discharge the covenant only if the restriction does not secure any “practical benefit” of “substantial” value or advantage to those with the benefit of the restriction.
In this case, the Tribunal was satisfied that the planning proposals were a “reasonable use” of the burdened land.  However, it held that the restrictions did secure substantial practical benefits and should remain in place.
The Harris’ identified several practical benefits arising from the restriction, which included the protection of their current outlook, the prevention of overlooking and the preservation of peace and quiet.
What is interesting about this case is that in answering the question of whether the practical benefits were substantial, the Tribunal took into account not only the effect of the reasonable use on the benefitting land – the garden – but considered the benefits secured for the totality of the land which the Harris’ owned, which also included their house.
As the Tribunal explained, if it was only the garden, as the benefited land, that mattered, the practical benefits secured by the restrictions were limited and insufficient to prevent the application from succeeding.  However, in taking a wider approach and considering the house as well, those benefits were significant and sufficient to defeat the application.
In reaching this conclusion, the Tribunal noted that the wording of the legislation requires the Tribunal to consider whether there is “any” substantial practical benefit to the “persons” entitled to that benefit. This, it held, does not limit the Tribunal’s assessment to the benefitting land, necessarily.

The Tribunal also gave the following reasons for its decision:-

  • The Harris’ house and garden were purchased as a single entity and the garden formed a large proportion of the site.
  • The practical benefits secured by the restriction could be enjoyed on both the garden and the house.
  • The practical benefits that can be secured by such a restriction should be construed widely.
  • The wording of the legislation allows for consideration of any substantial benefit secured to any persons – not just the benefitting land.
What does this mean?
The decision means that in practice it could be easier for benefitting individuals to persuade the Tribunal that the restrictions do protect significant enough advantages to justify their remaining in place.  When considering the impact of the reasonable use, the Tribunal is not limited to consideration of the benefits which the benefitting land enjoys and can extend its assessment to consider the benefits enjoyed by the relevant person more widely.
Cases brought under section 84 will, however, inevitably all turn on their own facts.  It was particularly significant in this case that the benefitting land comprised a large proportion of the objector’s land and was not meaningfully separable from the house.  It is unlikely that the clause will be construed too generously, and objectors will always need to be realistic when asserting the extent of practical benefits a given restriction allows them.
On the flip side, the case serves as a further cautionary tale.  Landowners seeking to develop land should always be alert to the possible impact of restrictive covenants and seek early legal advice on what can be done to navigate these risks before losses are incurred.
1. Copleston’s Application, Re [2021] UKUT 18 (LC) (16 February 2021)