The case of Sutton v Baines and others concerns an application to discharge a covenant which prevented a second house being built on the land. The application land was a large side garden next to a residential house at 39 Muswell Road in Mackworth, Derby. This is part of a series of Blogs where I attempt to summarise the latest decisions from the Upper Tribunal Land Chamber – the specialist court for applications to modify covenants affecting land under s84 Law of Property Act 1925 (the Act).

The Applicant did not have current planning permission, but instead had outline planning permission from Derby City Council dated November 2014. The consent related to a two-storey three bedroomed property on the site, but was conditional upon an application being submitted within 3 years and commenced within 2 years of approval. This was not done, and the consent had lapsed.

The Applicant relied on a local estate agent to provide a written report and oral evidence that the Objector's land, at 5 Putney Close, was valued at £315,000 and ‘would not in any way be impacted by the erection of a single dwelling’ on the application land, so long as it was not taller than the existing property at 39 Muswell Road and did not have more windows overlooking 5 Putney Close than the existing house.

The surveyor for the Objectors opined that diminution to his client’s property could be as much as 20-25% of the overall value, but could not be more specific until the plans of the proposed developments were known.

The Tribunal Judge found that the proposed use was reasonable, albeit vague because there was no live planning application, and that the restriction secured to the objector’s practical benefits. In the judgment the precise benefit is not set out, other than: ‘it is clearly a practical benefit to the objectors to be able to prevent a second house being built nearer to their own property’ at paragraph 24 of the judgment.

The Tribunal Judge described the fact that the Applicant had applied for a blanket discharge as being ‘the problem for Mrs Sutton’. By discharging the restriction, the Tribunal would leave the objectors liable to whatever planning permission Mrs Sutton or later owners might obtain.

Accordingly, the application was refused on basis the applicant failed on ground (aa) of section 84-1 of the Law of Property Act 1985.

SUMMARY: those wishing to apply to the Upper Tribunal Lands Chamber where their development is prohibited by a covenant, should ask for the discharge, and in the alternative, modification of the covenant. One should have a clear idea of how the covenant should be modified. Obtaining planning permission can help show reasonableness, on the face of it, which is something required when applying under a ground (aa) of the Act, and can provide something specific for the Tribunal to consider as a modification, which is less onerous than complete discharge.

Case title: Sutton v Baines and others, Case No. UTLC No: LC-2021-418

You can find decisions from the UTLC here.

For more information about Restrictive Covenants affecting land, see our blog here.

Toby Walker and his team specialise in disputes over property, include applications to the UTLC. They act for both owners and developers as well as those seeking to uphold covenants in all stages from initial advice, negotiations, deeds of variation and litigation. For assistance in covenant claims, please contact Toby on 01494 521301.