Application for modification of a restrictive covenant where the land had been gifted in a will for a specific use

An application for the modification of a restrictive covenant to allow a building gifted for use as a doctors’ surgery to be used for other medical or health services succeeded under ground (aa) of Section 84(1) of the Law of Property Act 1925 in the decision of Poppleford and Another v. Preston and Another [2026] UKUT 69 (LC). The Tribunal found the restriction was not obsolete under ground (a) but exercised its discretion to make the modification to the covenant under ground (aa).

Facts

By a transfer of land dated 1 August 1983, Mr George Compton, a local builder and parish Councillor, gifted a piece of land in the village of Newton Poppleford, Devon, to Newton Poppleford and Harpford Parish Council. The gift was made with the specific intention that the land be used solely as a doctor’s surgery.

In fulfillment of their obligations under the transfer, the Parish Council built a small, single-storey surgery on the land. The building consisted of just one consulting room and a waiting area, and it served the local community as a doctor’s surgery for around forty years.

In 2022, the medical practice occupying the surgery vacated the premises, and the Parish Council were unable to secure a replacement doctor to continue running the surgery. The Parish Council wished to continue using the surgery for the benefit of the village. However, the original transfer included a restrictive covenant, which stipulated that the land could not be used for any purpose other than as a doctor’s surgery.

The Parish Council applied to the Upper Tribunal (Lands Chamber) seeking a modification of the restrictive covenant to allow the building to be used “for any other medical or health service”. 

Mrs Winifred Preston, who owned land adjoining the surgery, objected to the application, together with her son Mr John Preston. Mr Robert Compton, a son of the original donor, along with three other family members, also submitted objections. However, none of the Compton family were admitted as parties to the application as they did not own any land that benefitted from the covenant. 

Issues

The applicant made the application to modify the restrictive covenant on ground (a) (that the restriction ought to be deemed obsolete), and ground (aa) (that the restriction would impede some reasonable use of the land for public or private purposes and that the restriction secures no practical benefits of substantial value or advantage, and is contrary to the public interest).

A preliminary issue also arose under section 84(7) of the Law of Property Act 1925 as to whether the Tribunal had jurisdiction to modify the restriction. Section 84 does not apply where the restriction was imposed pursuant to a disposition made gratuitously or for nominal consideration for public purposes.

Decision

In respect of the preliminary issue, the Tribunal found that section 84(7) of the Law of Property Act 1925 did not apply and that it did have jurisdiction to consider modification of the restrictive covenant. Whilst the transfer was a disposition, and it was for public purposes. They considered whether the transfer was a gratuitous disposition, which would have excluded the Tribunal’s jurisdiction. 

Although Mr Compton did not receive any form of monetary consideration for the land, the Tribunal found that the Parish Council had assumed significant positive obligations under the terms of the transfer. These obligations included a requirement to build the surgery within three years, as well as ongoing responsibilities to contribute to the cost of services, maintain trees and hedges, and erect and maintain fences. In reaching its decision, the Tribunal noted that this conclusion was consistent with the conclusion reached in the case of City of Westminster v Duke of Westminster (1991) 23 HLR 174, in respect of lease covenants.  There was a distinction between negative obligations and positive obligations to incur expenses or do something on the land conveyed or elsewhere.  The former would not prevent a disposition from being gratuitous, but the latter would. The Tribunal concluded that the Parish Council’s positive obligations prevented the disposition from being gratuitous so that Section 84(7) did not apply. 

The Tribunal found that the application failed on ground (a). The mere fact that the Parish Council were unable to find a doctor willing to use the premises as a doctor’s surgery did not render the covenant obsolete. A restriction would only become obsolete if it no longer served any practical purpose. The Tribunal noted that the covenant had not been breached at any point, and there were no practical issues in continuing to observe its terms. Therefore, the purpose for which the restriction had been imposed was continuing to be achieved, and so there was no basis to consider the covenant obsolete.

The Tribunal was satisfied that the application succeeded on ground (aa) because the restriction impeded the use of the land for ancillary medical or health services which was a reasonable use of the land.  The Tribunal found no practical benefits of substantial value or advantage in the restriction for the objectors who were registered at another GP practice and had never been inside the building.

Therefore, the Tribunal exercised its discretion to modify the covenant. Whilst the Parish Council itself had originally entered into the agreement, the Tribunal considered other circumstances such as the fact that the surgery was now unused and unusable.  The empty building was an ongoing expense to the Parish Council and was ultimately providing no tangible benefit to the village community. In reaching its decision, the Tribunal considered that the original donor would not have objected to this minor change and that some good may be done to those whom the original donor wished to benefit because of this change. The Tribunal noted that the objectors would not suffer any harm as a result of the modification and that maintaining the restriction would only lead to waste and the eventual dereliction of the property.  Therefore, no compensation was awarded.

Comment

This decision is interesting in its analysis of the rarely referred to Section 84(7) of the Law of Property Act 1925.  The fact that there is no monetary consideration for a disposition of land is not the end of the matter.  It is necessary to review what positive obligations have been assumed by the transferee in exchange for the land.

Originally published on Property Law UK