We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
04/11/2026
By James Fuller
The Upper Tribunal (Lands Chamber) (“the Tribunal”) has recently handed down its decision in Hughes Family Property Co Ltd & Anor v Marvin & Ors [2026] UKUT 310 (LC), granting an application to modify a restrictive covenant under section 84(1) of the Law of Property Act 1925 (“LPA 1925”).
The decision considers a number of issues which commonly arise in restrictive covenant applications, including objections based upon character and appearance, traffic and parking, and the familiar argument that permitting one development will create a precedent for further development. The case is also an application of the Tribunal’s recent decision in Williams v Thompson-Hall [2026] UKUT 260 (LC), concerning the exercise of the Tribunal’s discretion where breaches of covenant have occurred prior to a section 84(1) application.
The application concerned a parcel of garden land in Dartmouth (“the Land”) which was subject to a restrictive covenant “[n]ot to erect any building of any kind upon the land hatched Green on the plan annexed hereto and to lay out the same with trees/shrubs” (“the Covenant”).
The Applicants sought modification of the Covenant because the Land benefitted from planning permission for the construction of a dwelling, which could not be implemented without breaching the Covenant. The application was made pursuant to sections 84(1)(aa) and (c) of the LPA 1925.
The application was opposed by neighbouring owners who contended that (i) the Covenant continued to secure practical benefits by preserving the character and openness of the area, (ii) the Covenant limited traffic and parking issues, and (iii) granting the application would encourage future development of neighbouring land.
The Tribunal therefore had to consider whether the proposed use was reasonable and impeded by the Covenant, whether the Covenant secured practical benefits of substantial value or advantage for the purposes of section 84(1)(aa), and whether modification would cause injury to the objectors for the purposes of section 84(1)(c).
The case is a useful reminder that the existence of a practical benefit is not enough to defeat a section 84(1)(aa) application.
Effects on outlook, visual appearance, neighbourhood character and amenity are all capable of amounting to practical benefits. The critical question, however, is whether the particular benefit secured by the covenant is of substantial value or advantage to the person entitled to the benefit of it.
The case also illustrates that concerns about character or amenity must translate into a practical benefit of substantial value or advantage if they are to defeat an application under section 84(1)(aa).
For practitioners acting for objectors, the case underlines the importance of evidencing the practical impact of the proposed development on the benefited land rather than relying on general concerns about changes within the neighbourhood.
The Tribunal also considered the familiar “thin end of the wedge” objection that modification of the Covenant would encourage further development.
The Tribunal focused on the application before it and the actual consequences of the proposed modification. Concerns about what other landowners may seek to do in the future carried little weight in this case.
On the facts, the Tribunal regarded the objectors’ concerns about a “thin end of the wedge” as misconceived. Any future application to modify or discharge a covenant affecting other land would fall to be determined on its own facts.
The decision also applied the Upper Tribunal’s recent decision in Williams v Thompson-Hall [2026] UKUT 260 (LC) .
In Williams, the Tribunal clarified the approach to the exercise of its discretion once a statutory ground for modification has been established. The Tribunal emphasised that although previous breaches remain relevant, the section 84(1) jurisdiction is not intended to operate as a punitive mechanism, and such breaches do not automatically disentitle an applicant from obtaining relief.
In Hughes, the Applicantshad previously constructed an annexe in knowing breach of the Covenant. Applying Williams, the Tribunal nevertheless concluded that the Applicants’ conduct fell short of being egregious and unconscionable and therefore exercised its discretion to modify the Covenant.
Taken together, Williams and Hughes indicate that a previous breach will not necessarily prevent modification where the statutory grounds are otherwise established.
The case provides the following useful practical points:
James Fuller of Guildhall Chambers appeared for the successful Applicants.
Call: 2020 | Sol 2017
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