David Lonsdale successful in Freehold Restrictive Covenants Case

Author: Reporter
In: News Published: Saturday 01 September 2018


In Re Geall's Application [2018] UKUT 154 (LC), David appeared in the Upper Tribunal (Lands Chambers) for the applicant servient land owner, applying under section 84(1)(aa) and (c) of the Law of Property Act 1925 for an order modifying two restrictive covenants that were impeding the conversion of a barn into residential accommodation. 

The Upper Tribunal found that the restrictive covenants did not secure to the dominant land owner objectors, any practical benefit of substantial value or advantage to them. It also found that money would be adequate compensation for the loss/disadvantage the objectors would suffer to their freehold interest from the proposed modification. On the evidence, the Upper Tribunal found that the modification would reduce the value of the objectors' land by 2.5% (£65,000), however this diminution in value, in the context of landed estate worth £2.6m, was found not to be substantial for the purposes of ground (aa). With ground (aa) satisfied, the Upper Tribunal had the discretion to modify the covenants, and it went on to find that the balance fell in favour of granting the modification sought.

The Upper Tribunal also dealt with a procedural point - whether the 2010 Tribunal Rules expanded the powers available to the Upper Tribunal to permit or require amendments to documents. Re Geall now stands as authority for the proposition that the Upper Tribunal does hold general power to permit or require amendments to documents, including the contents of applications. This new power is not found in the Lands Tribunal Rules 1996, as interpreted by Re Diggens Application [2000] 3 EGLR 87. At paragraph 86, the Upper Tribunal said:

‘Rule 5(3)(c) of the Tribunal's 2010 Rules contains a general power that was not in the 1996 Rules to permit or require amendments to a document. In my opinion this power is not restricted to amending the ground upon which the application is made but can also be used to add another restriction to an application under section 84 provided that by so doing the Tribunal's overriding objective of dealing with a case fairly and justly is not compromised.’

David was instructed by Rix & Kay Solicitors LLP

To view David profile, click here