Upper Tribunal considers its jurisdiction to modify or discharge an easement

In case of Garton v. Wheatcroft Land (Thoroton) Limited & Others [2025] UKUT 253 (LC) an application to modify or discharge an easement which was limited to use in connection with land as a private garden was rejected on the basis that the Tribunal had no jurisdiction. An application to modify or discharge a restrictive covenant was also rejected because it was not obsolete and secured practical benefits of substantial advantage to the objectors.

Facts

The applicant wanted to implement a planning permission for the erection of a new dwelling in her garden at Manor House, Thoroton. She applied to modify or discharge an easement and restrictive covenant under Section 84 of the Law of Property Act 1925.

The application land (referred to as Parcel A) was to the rear of Manor House and the applicant planned to use it for access and parking associated with the new dwelling. The application land, however, was burdened by a restriction which prevented the erection or construction of any building or structure and required it to be used as a private garden for recreation purposes only.  In addition, the application land benefited from a right of way over an adjoining private access road through Thoroton Farm to the public highway, which was limited to the purposes in connection with the use of the land as a private garden (“Limited Right of Way”).

The applicant sought a modification or discharge of both the Limited Right of Way and the restrictive covenant.

The objectors were Wheatcroft Land (Thoroton) Limited (‘WLTL’) a developer of Thoroton Farm (to provide 8 new properties) and the owner of the communal access road.  The owners of six of the eight new properties at Thoroton Farm also objected. They would be the future owners of the access road once all of the properties had been sold off.

The relevant provisions of the Transfer dated 22 May 2019 made between the applicant and the seller were as follows.

“12.2.2. …the Transferee (and the person deriving title under her) shall be entitled to exercise the right of way reserved at clause 12.3.1 of a Transfer dated 31 March 2016… subject as set out in that said reservation for the benefit of that part of the Property comprising parcel A only for all purposes in connection with the use of Parcel A as a private garden for domestic recreation but not for any other purpose”

“12.2.3 …not to construct or erect on Parcel A any building or structure (whether temporary or permanent) and to use Parcel A as a private garden for domestic recreation only PROVIDED THAT the erection of fencing in accordance with clause 12.4 below or a shed or a shed greenhouse or gazebo shall not be a breach of this covenant”

On 20 August 2021 the applicant applied for planning permission to build a two-bedroom dwelling in her garden, with associated access and parking on the application land. A revised application for a three-bedroom dwelling was submitted on 3 April 2023 and planning permission was granted on 30 May 2023.

It was the applicant’s intention to use the application land for access, parking and a garden for the proposed dwelling. The restrictive covenant and the Limited Right of Way would therefore have impeded the implementation of the planning permission.

Issues

• Did the Tribunal have jurisdiction to modify or discharge the Limited Right of Way?
• Did the Tribunal have jurisdiction to discharge or modify the restrictive covenant on any of the following grounds.
  • Ground (a) (that the restriction ought to be deemed obsolete).
  • Ground (aa) (that the restriction would impede some reasonable user of the land and that the restriction secured no practical benefits of substantial benefits or advantage and if so, whether money will be adequate compensation).  
  • Ground (c) (no injury to the person entitled to the benefit of the restriction).

Decision

The Tribunal found that it did not have jurisdiction to modify or discharge the Limited Right of Way.  The applicant sought to argue that as Section 84(1) gives the Tribunal power to discharge or modify any restriction arising under a covenant “or otherwise” meant that the jurisdiction is not limited to restrictions arising under covenants and extended to easements. However, the authorities (including Hotchkin v McDonald [2004] 1 P & CR, a decision of the Court of Appeal) supported the proposition that the Upper Tribunal (Lands Chamber) has no power to vary an easement as such.   In that case the extent of the right of way could be used in connection with the use of the relevant land if the use was not forbidden by the restrictive covenant.  In this case the grant was expressly linked to the limited use as a garden.  Furthermore, the Law Commission publication in 2011 “Making Land Work: Easements, Covenants and Profits a Prendre” recommended that the jurisdiction of the Upper Tribunal (Lands Chamber) should be extended to cover modification and discharge of easements.

With regard to the application in respect of the restrictive covenant, the Tribunal found that the application failed on ground (a). The restriction had only been imposed in 2019, and it was fulfilling its anticipated purpose of assuring WLTL that it need have no concerns about traffic from a third party using the private access road to their completed development, beyond that for use as a private garden.

Under ground (aa), it was agreed between the parties that the proposed use was reasonable.  However, there were practical benefits to WLTL and its successors in being able to manage traffic and prevent additional parked cars on the narrow access road. Overall, the restriction provided reassurance to WLTL and the other objectors that management and control of the access road would suffer minor impact arising from the application land’s use as a garden.  The practical benefits of that reassurance, and the avoidance of risk and uncertainty, were of substantial advantage to the objectors.

Ground (c) was not made out given the Tribunal’s decision that the restriction secured practical benefits to the objectors.

Comment

This decision is useful in confirming that the Upper Tribunal (Lands Chamber) does not have jurisdiction to modify or discharge an easement.  It remains unclear, however, precisely what the words “or otherwise” in Section 84(1) of the Law of Property Act 1925 is designed to cover.

Originally published on Property Law UK