Paul Davies & Anor v Hazelle Jones [2026] UKUT 51 (LC)

[2026] UKUT 51 (LC)Case No LC-2025-134
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPLICATION UNDER SECTION 84
OF THE LAW OF PROPERTY ACT 1925
Liverpool Civil and Family Court,
35 Vernon Street, Liverpool, L2 2BX
10 February 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANTS – MODIFICATION – covenant restricting alteration of a building without consent – overlooking – privacy – restrictions not of practical benefit of substantial value or advantage – s. 84 (1), Law of Property Act 1925
PAUL AND KATHRYN DAVIESApplicantsHAZELLE JONESObjector15 Oaksway Heswall,Wirral,Cheshire, CH60 3SPUpper Tribunal Judge Elizabeth Cooke and Mr Peter D McCrea OBE FRICS FCIArb21 January 2026
Between
PAUL AND KATHRYN DAVIESApplicantHAZELLE JONESRespondentObjectorRespondent15 Oaksway HeswallRespondentWirralRespondentCheshire, CH60 3SPRespondentUpper Tribunal Judge Elizabeth Cooke and Mr Peter D McCrea OBE FRICS FCIArbRespondent21 January 2026RespondentDavid Green, instructed by Knights Professional Services for applicantsAndrew Francis, instructed by Croft Solicitors for objector© CROWN COPYRIGHT 2026The following cases were referred to in this decision:Alexander Devine Children's Cancer Trust v Housing Solutions Ltd[2020] UKSC 45Re Bass’s Application (1973) 26 P&CR 156Shephard v Turner[2006] EWCA Civ 8Palser v Grinling[1948] AC 291Re Kerai’s Application[2014] UKUT 0153 (LC)Hennessey v Kent[2017] UKUT 2043 (LC)Nathwani v Kivlehan[2021] UKUT 84 (LC)Re O’Byrne’s Application[2018] UKUT 395 (LC)Kay v Cunningham and Nix[2023] UKUT 252 (LC)The University of Chester’s Application[2016] UKUT 0457(LC)Lamble v Buttaci[2018] UKUT 175(LC)Date 2026-02-10

Introduction

[1]Oaksway is a road in Gayton, on the outskirts of Heswall, a prosperous town on the Wirral Peninsula. Properties on Oaksway and the surrounding roads tend to be large, detached, and individually designed houses in sizeable plots.[2]In 1971 one of the large houses on the eastern side of the road was called ‘Dee Gap’. It had a large garden and tennis court to the south of the house. The owner, Audrey Blackburn, decided to sell ‘Dee Gap’ to John and Margaret Robertson, but to retain some of the garden on which to build a new house. The transfer dated 26 April 1971 included restrictive covenants under which development of the retained garden could be controlled by the purchasers of the house.[3]Today, ‘Dee Gap’ is known as ‘Hook End’, 11 Oaksway. Mrs Hazelle Jones and the late Mr Rod Jones bought it in July 1997. The land that was retained, and upon which a two storey house was built, is known as 15 Oaksway. The applicants, Paul and Katherine Davies, bought it in January 2023. They wish to extend the house, and have planning permission to do so, but need Mrs Jones’s permission, which she does not wish to give. The applicants therefore apply to the Tribunal under s.84 of the Law of Property Act 1925 (“the Act”) to have the restrictions modified to the extent that would permit the planning permission to be implemented.[4]We made a site visit on 20 January 2026, viewing the gardens and views from both properties.[5]At the hearing at Liverpool Civil Justice Centre the following day, the applicants were represented by Mr David Green, the objector by Andrew Francis, both of counsel. In addition to the evidence of Mr Davies and Mrs Jones, we heard expert evidence from Mr Alyn Nicholls MRTPI for the applicants, and Mr Dominic Stanger FRICS for the objector. We are grateful to them all.

The Restrictions

[6]The restrictions burdening 15 Oaksway are contained in a conveyance made between Audrey Blackburn and John and Margaret Robinson dated 26 April 1971. Clause 4 of the conveyance said this: “THE VENDOR hereby covenants with the Purchasers to the intent that the burden of this covenant shall run with and bind the land retained by the Vendor shown edged blue on the said plan (hereinafter called "the blue land" [15 Oaksway]) and every part thereof and to the intent that the benefit thereof shall be annexed to and run with the land hereby conveyed (hereinafter called "the red land" [11 Oaksway]) and every part thereof that the Vendor and her successors in title will at all times hereafter observe and perform the following restrictions and stipulations but so that neither the Vendor nor her successors in title shall be liable for any breach of such covenants after they shall respectively have parted with all interest in the blue land:-(a) That nothing other than one bungalow or one two-storey dwellinghouse if the Local Planning Authority shall refuse permission for a bungalow with or without the usual outbuildings shall be used otherwise than for private residential purposes or be occupied by more than one family and nothing shall be done thereon which shall be a nuisance or annoyance to the owners or occupiers for the time being of the red land(b) That no building or obstruction be erected or made on the blue land within six feet of the boundary thereof with the red land without the prior written permission of the owner or owners for the time being of the red land(c) That no building or erection shall be constructed or other works commenced on the blue land until the plans elevations and siting thereof shall first have been approved of in writing by the Purchasers or their successors in title as the owners for the time being of the red land such approval not to be unreasonably withheld having reasonable regard for the character of the neighbourhood and in particular the amenities and the protection of the privacy of the red land and the dwellinghouse erected thereon" (a) That nothing other than one bungalow or one two-storey dwellinghouse if the Local Planning Authority shall refuse permission for a bungalow with or without the usual outbuildings shall be used otherwise than for private residential purposes or be occupied by more than one family and nothing shall be done thereon which shall be a nuisance or annoyance to the owners or occupiers for the time being of the red land (b) That no building or obstruction be erected or made on the blue land within six feet of the boundary thereof with the red land without the prior written permission of the owner or owners for the time being of the red land (c) That no building or erection shall be constructed or other works commenced on the blue land until the plans elevations and siting thereof shall first have been approved of in writing by the Purchasers or their successors in title as the owners for the time being of the red land such approval not to be unreasonably withheld having reasonable regard for the character of the neighbourhood and in particular the amenities and the protection of the privacy of the red land and the dwellinghouse erected thereon"[7]We shall call sub-clauses (a) to (c) the “nuisance and annoyance covenant”, the “six feet covenant”, and the “plans approval covenant” respectively.

The application and the Act

[8]Mr and Mrs Davies apply to modify the “plans approval covenant” only to the extent to enable them to extend 15 Oaksway in line with a planning permission dated 2 April 2024, namely to extend and convert the existing garage, adding an upper dormer floor, and other alterations to the existing house.[9]They rely on grounds (aa) and (c) of s.84(1) of the Act, which give the Tribunal jurisdiction to discharge or modify a restrictive covenant affecting land in whole or in part.[10]Ground (aa) is satisfied where the restriction impedes some reasonable use of the land for public or private purposes, and the Tribunal is satisfied that, in so doing, the restriction secures “no practical benefits of substantial value or advantage” to the person with the benefit of the restriction, or the restriction is contrary to the public interest. The Tribunal must also be satisfied that money will provide adequate compensation for any loss or disadvantage which the beneficiary of the restriction will suffer from the proposed discharge or modification. In determining whether a restriction ought to be discharged or modified under ground (aa), the Tribunal is required to take into account the statutory development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area (section 84(1A)). It must also have regard to the period at which and context in which the restriction was imposed and any other material circumstances (section 84(1B)).[11]Ground (c) is satisfied where that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction. For the applicants, Mr Green accepted that should the application fail under ground (aa), ground (c) would not be made out.[12]Section 84(1) gives the Tribunal power, upon being satisfied that either of the grounds is made out, wholly or partially to discharge or modify the restriction. As the Supreme Court explained in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 this involves a two-stage process. First, in what the Supreme Court called the ‘jurisdictional stage’, the Tribunal must be satisfied that one of the prescribed grounds is made out. If so, in the ‘discretionary stage’, the Tribunal must then decide whether and to what extent to exercise its power to discharge or modify. 13. If it discharges or modifies the covenant the Tribunal may direct the payment of compensation to make up for any loss or disadvantage suffered by the person entitled to the benefit of the restriction.

Facts

[14]The applicants bought 15 Oaksway in January 2023. Mr Davies told us that they were made aware of the restrictive covenants as part of the conveyancing process, but were advised that under the plans approval covenant the owner of no 11 could not unreasonably withhold consent. This was important to them, as they planned to extend the house to accommodate what they hoped would be their growing family.[15]Recollections of the precise order of events vary between the parties, but in essence Mr and Mrs Davies asked for Mrs Jones’ consent under the covenant, but she was not prepared to give it owing to the effect of the proposals on her property. Mr and Mrs Davies submitted a planning application to Wirral Council and, despite Mrs Jones’ submitted objection, planning consent was granted on 2 April 2024 under number APPH/23/01942 for the “extension and conversion of existing garage with first floor extension with front and rear dormers and alterations to the existing front dormer window”. The certificate summarises the reasons for the council’s decision as “the proposal is considered acceptable in scale and design and is not considered to have a harmful visual impact on its surroundings or an adverse impact to the amenities that the occupiers of neighbouring properties expect to enjoy….”.[16]The existing and proposed front elevation (where Mrs Jones’ house would lie to the left) would look like this:[17]From the rear, facing Mrs Jones’ garden which lies to the right, the comparison is this:[18]It is useful also to illustrate the part of the proposed internal first floor plan closest to Mrs Jones’ property, with the rear of the building at the top of the plan, from which it will be apparent that the new rooms overlooking Mrs Jones’ garden would be a bedroom and dressing room, and in each case from a dormer window:[19]At this point we need to describe Mrs Jones’ property. It is an attractive and substantial house with a series of dormer windows at first floor. If developed as they wish, Mr and Mrs Davies’ house would not be dissimilar in appearance.[20]Mrs Jones explained that although she lives alone in a very large property, she does not wish to move because of the privacy her garden provides. From our inspection, it was apparent that Mrs Jones’ evidence that she is a keen gardener is justified. Her garden is very well established and tended. When viewed from the back of the house, she has a substantial patio, sun lounging and barbeque area in the rear right corner of the garden, positioned in the north-east first to take most advantage from the setting sun, and secondly because it is not overlooked. Even in winter, she uses this area to its full extent.[21]The original post and panel fence between the two properties has been supplemented on both sides. Mrs Jones maintains a substantial leylandii hedge to a height of 8.5 feet. Looking at it from above, from inside Mrs Jones’ house, it is obvious that it has been trimmed, and Mrs Jones explained that she keeps it at 8.5 feet at her gardener’s suggestion to make maintenance practicable. On the other side, Mr and Mrs Davies have recently planted a row of photinia shrubs, which slightly exceed that height. The effect of this vegetation is that the patio area of no. 11 is invisible from no. 15, because the fence and hedge screen the patio from the ground floor windows and the existing first floor windows. Since they are located at a slight bend on Oaksway, the rear elevations of the two properties are inclined away from each other. Some of the rest of garden north of the patio, is already visible from the existing first floor windows of no.15.[22]Backing on to both properties are the houses on Kingsway to the north-east, running roughly parallel to Oaksway. Mrs Jones’ garden is screened from Kingsway by the 12 foot high hedge all along the rear boundary. Further screening between the Kingsway houses and no.’s 11 and 15 is provided by some very large mature trees on the eastern boundary of no. 15, the applicants’ garden, at any rate in summer when the trees are in leaf. On the other side of Mrs Jones’ house is no. 9; in winter Mrs Jones’ garden must be clearly visible from the side window of no. 9, but the cherry tree in front of that window will shield it from view for most of the year while it is in leaf.[23]Mrs Jones objects to the proposed development. She says it would give Mr and Mrs Davies clear views into her front and rear gardens, significantly affecting her privacy, use, and enjoyment of her garden. The substantial increase in massing of what is now the garage would have an overbearing effect and would, she says, negatively impact her house’s appearance and value. The planned appearance of no.15 would be almost identical to no.11, detracting from its character and run against the charm of Oaksway, where every house is different. She fears the impact of noise from the current or future owners of no.15, as a result of the sliding or bifold doors at the rear, and the large dormer windows proposed.

Expert evidence

[24]Unusually, we have opposing expert evidence from two different disciplines. For the applicants, Mr Alyn Nicholls MRTPI is a planner; the objector’s expert, Mr Dominic Stanger FRICS, is a chartered surveyor. Very fairly, neither sought to trespass outside their professional fields, and we found their evidence helpful.[25]Mr Nicholls was instructed to address the question whether Mrs Jones’ objections to the proposed development had any merit.[26]His view was that they did not. His evidence was that in any suburban garden there was an element of ‘intervisibility’ which can vary depending on boundary treatments, and already there was an element of overlooking of Mrs Jones’ garden, both from the Davies’ house at an oblique angle, and from a first floor window of the side elevation of 9 Oaksway. While the proposed dormer windows above the former garage would be closer to Mrs Jones’ property, views would be oblique, especially since the properties are angled away from each other, and would be limited by vegetation. He agreed with the planning officers, whose judgment was that the proposal “introduced first floor habitable windows which were considered acceptable… The windows face the front and rear gardens and will be set 4m away from the boundary with No.11 which would reduce the perception of being overlooked … and there would be no direct overlooking or loss of privacy to neighbouring properties.”[27]As for massing, in Mr Nicholls’ view the extension had been designed specifically to minimise its bulk and massing, with dormer windows in a roofline lower than that of the main house, and with a hipped roof facing Mrs Jones’ property. Again, he agreed with planning officers who considered that “the proposal is not considered to form an overbearing structure when viewed from No.11 as it is set off the boundary, does not extend beyond the rear elevation of No.11, it does not compromise the 45° outlook expected from habitable windows, and has been designed with a lower ridge and half hip roof to reduce the massing”[28]In respect of the similarities between the altered no.15 and no.11, Mr Nicholls pointed out that dormer windows are a feature throughout the area, and the houses would not be identical – the dormers would be different in configuration, design, and materials. The design was deliberately in keeping with the area to ensure commonality and sympathy with that of the area.[29]Finally, as regards Mrs Jones’ concerns about noise and light pollution, Mr Nicholls felt that in a suburban area this was to an extent inevitable, and any light spillage into her garden would be negligible.[30]Mr Stanger was instructed to look at the matter in a different way. He was asked to consider whether the proposed development of no. 15 would be a ‘reasonable user’ (the term used in the Act) of the property, as a residential use in a residential area, but in a larger house; and he was asked to consider whether the covenant provides any practical benefit of substantial value or advantage to the objector in preventing the development, and to assess the market value of the two properties and that of no. 11 if the development went ahead.[31]Mr Stanger agreed with Mr Nicholls that the proposed development would be a reasonable use of the applicants’ land. He also agreed that it would not damage the character of the neighbourhood, and would not cause any problem in terms of noise or of light pollution. But he took a very different view of the effect of the development on the privacy of Mrs Jones’ garden. In his view, the original purpose of the covenant remained sound – to control development on no.15 so as not to adversely affect the enjoyment and use of no.11.[32]Mr Stanger considered Mrs Jones’ rear garden to generally be private, with minimal overlooking. The proposed development would in his view substantially diminish that privacy. To the front garden, which can currently be seen from the road, this was less of a problem. From Mrs Jones’ seating area in the rear garden, where at the moment only the roof of the garage can be seen, there would be direct overlooking from the rear dormer windows.[33]By reference to comparable evidence, Mr Stanger’s view was that No.11 had a current market value of £950,000. People at this level of the market would expect privacy in their garden; should the proposed development be allowed, he considered the value of No.11 would decrease to £900,000. A notional purchaser would reduce their offer if the garden was overlooked, or would simply look elsewhere.[34]As to whether the covenant provided a practical benefit of substantial value or advantage to Mrs Jones by preventing the proposed development; in his report, Mr Stanger said:
“In the context of the proposed development of number 15, it is clear from the plans and elevations … that the proposed development will have new first floor windows in the front and rear elevations which will be much closer to the boundary, will overlook the front and rear gardens where they are not currently overlooked. In relation to the front garden this is less important as the front garden can be currently seen from the road in any event, but in relation to the rear garden, which is not currently overlooked, the development [would] substantially diminish the privacy enjoyed by number 11. The covenant is therefore of substantial benefit to the objector in relation to the proposed development.”
[35]We should add that the applicants sought to rely on documents from a local estate agent, Mr Adams, but he was not called to give evidence, either orally or by way of a witness statement, and we have disregarded these documents and Mr Stanger’s supplementary expert report dealing with them, for which there was no permission from the Tribunal.

The application and the Tribunal’s task

[36]Before turning to the grounds upon which the applicants rely, we should explain that it is not the Tribunal’s role to decide whether Mrs Jones’s withholding consent was unreasonable. Mr Francis submits that the qualified nature of the covenant goes to the Tribunal’s discretion, and we deal with that later. But whether consent is being unreasonably withheld is a different question from whether the prevention of the development confers a practical benefit of substantial value or advantage. It is possible to envisage circumstances where consent was reasonably withheld, but where the benefit conferred by the covenant was not of substantial value or advantage.[37]In light of that Mr Francis sought to persuade us that Mr Nicholls’ evidence was irrelevant because he had been asked the wrong question (see paragraph 25 above). We disagree. The question Mr Nicholls was asked to answer was not formulated with reference to the words of the statute; but he addressed Mrs Jones’ objections in terms of privacy, the size of the proposed building, noise, light, and the character of the area, and we are able to make use of his evidence on those points.[38]We are mindful of the limited extent of the application. The applicants do not seek discharge; they seek modification limited to the ability to extend No.15 in line with the planning consent. So we have considered the application though that prism.

Ground (aa)

[39]The application is based on the familiar series of questions posed in Re Bass’s Application (1973) 26 P&CR 156. Whilst this convenient shorthand is not a substitute for an examination of the relevant provisions in the Act, we are content to adopt this format, conscious, that there might be a degree of circularity between them and, as Mr Francis submitted, each question might not be afforded the same weight.[40]We have no difficulty in accepting that the proposed use of the applicants’ property is reasonable; this is an objective question and the fact that Mrs Jones thinks it is unreasonable to extend the house is not relevant. While planning permission is not a guarantee of success (see for instance The University of Chester’s Application [2016] UKUT 0457 (LC), or Lamble v Buttaci [2018] UKUT 175 (LC)), it is a persuasive indicator, and it was in any event common ground between the experts that the use was reasonable. It is also common ground that the restrictions impede that use.[41]So we turn to the question whether, in impeding the proposed development, the plans approval covenant gives Mrs Jones a practical benefit and, if it does, whether that benefit is of substantial value or advantage. Carnwath LJ (as he then was), in Shephard v Turner [2006] EWCA Civ 8, is often said to have defined ‘substantial’ as ‘considerable, solid, or big’ (although he was quoting from Viscount Simon in Palser v Grinling [1948] AC 291, 317).[42]Mr Francis argued that we should take careful note of the “tailor-made” nature of the plans approval covenant alongside the nuisance and annoyance covenant and the six feet covenant (paragraph 6 and 7 above). The three covenants work together: they express the preference for a bungalow, they limit the number of storeys if a house was built, they restrict the position, use and occupation of the new house, they prevent nuisance, and they provide the for approval of plans. This, said Mr Francis, was “not just” a plans approval covenant, but a special regime designed to provide protection for no. 11, which itself demonstrated the intentions of the original parties and was part of “the context in which the restriction was created or imposed and any other material circumstances” (section 84(1B). The plans approval covenant itself makes special mention of the character of the neighbourhood and the amenity and privacy of no. 11.[43]We agree that the covenants taken together demonstrate that a lot of thought was put into the protection of no. 11. Beyond that we do not think the aggregation of provisions is unusual, or that it takes us either outside the scope of the application, relating just to the plans approval covenant, or outside the provisions of the statute. We are to consider whether in preventing Mr and Mrs Davies from extending their home the plans approval covenant secures to Mrs Jones a practical benefit of substantial value or advantage.[44]At this point we should explain the impressions we gained from our site visit. From the inside, Mrs Jones’ substantial house will be unaffected by the applicants’ proposals. Her front garden might be more overlooked, but to a very limited extent, and over an area which can largely be seen from the pavement in any event – that which is partially screened will be unaffected by the applicants’ proposals.[45]The position in respect of her back garden is more nuanced. In our judgment, the majority of the garden will be scarcely any more overlooked than now. It can be seen, at an oblique angle, from the existing windows of No.15, and for part of the year, from No.9. The focus of Mrs Jones’ objection is the effect of the development on her very attractive and well thought out patio seating area in the rear corner of her garden. At the moment it is not overlooked by no.15. Having sat on the patio, and also on the bench on the lawn, we can see that it will, at least in part, be visible from the proposed rear dormer windows.[46]Mr Green argued that Mrs Jones’ privacy is protected not by the plans approval covenant but by the vegetation on the boundary between no’s 11 and 15. We think the position is more subtle than that. The leylandii hedge is higher than the fence behind it and so shields the patio from the existing upstairs windows of no. 15; the covenant prevents the Mr and Mrs Davies from extending their property, as they now wish to do, and that extension would (as things stand) have a view of the patio over the top of the hedge. But obviously the very private nature of the patio is equally due to the extremely high hedge shielding it from the houses and gardens on Kingsway. We come back to that factor later.[47]We do not find that that covenant gives Mrs Jones any practical benefit in terms of the view from, or privacy of, her front garden. The front garden is already open to view from passers-by as the front boundary is largely open. We also accept the experts’ agreement that the proposed development will not cause Mrs Jones any problems in terms of noise or light, and will not damage the character of the neighbourhood. In terms of what she will see when she steps outside her front door, we do not accept that the proposed development will cause her any loss of amenity at all. No. 15 will be bigger, but it is difficult to see how that could offend Mrs Jones any more than the sight either of her own house or of many of the neighbouring properties. We accept that the proposed extension has been designed to minimise massing; the roofline is lower than that of the main house, and we agree with Mr Nicholls that this, coupled with the hipped roof facing No.11, means that the size of the extended house is not an issue. As for the similarity between Nos 11 and 15 in appearance, having driven around the locality after our site inspection, we think there is nothing in this objection.[48]So the only real issue is the privacy of the back garden. We are satisfied that in preventing the development the plans approval covenant does secure to Mrs Jones a practical benefit by protecting the patio (but not the whole garden) from overlooking by no. 15. It will be slightly diminished by the proposed development, and the prevention of that is a practical benefit. Is it of substantial value or advantage?[49]The proposed new rear windows are those of a bedroom and of a dressing room, and are in relatively deep dormers. It would be possible to see some of Mrs Jones’ seating area, but it would take a conscious effort to do so; this is not the same as it being visible from living areas during the day. In conclusion, our view is that while there will be a change to her level of privacy, and we accept Mrs Jones’ genuine feelings on the issue, overall the effect on her property as a whole will not be great. It will be possible to mitigate even the minimal overlooking from the new windows by allowing the leylandii hedge to grow taller; as it is, it has been trimmed along the top to assist with maintenance; but Mrs Jones maintains a 12’ high hedge at the rear of her garden to prevent overlooking from Kingsway, and we see no difficulty in her doing the same on the boundary with no. 15. On the issue of overlooking, therefore, we prefer Mr Nicholls’ view to that of Mr Stanger.[50]Our conclusion, is that the ability to prevent the proposed development does not secure to Mrs Jones a practical benefit of substantial advantage.[51]Turning to whether it is of substantial value, we accept Mr Stanger’s uncontroverted opinion of the value of No.15, supported by comparable evidence, without the proposed development next door, at £950,000.[52]In our judgment, his assessment of the diminution in value of £50,000 cannot be justified, for two reasons. First, we do not agree with the factual basis on which the assessment was made. Mr Stanger expressed the opinion that Mrs Jones’ back garden is not currently overlooked (paragraph 14.2 of his report). But it is, as we have explained above (paragraphs 21 and 22 above), both by no. 15 and by no. 9. So the change would not be from “total privacy” to “being overlooked”. It would be an increase, to a minor extent, in the current degree of overlooking of part of the garden, and that increase could be mitigated or eliminated relatively easily by Mrs Jones’ allowing her hedge to grow. Secondly, there is a difference of perspective between an occupier who can compare first hand the objector’s property on a ‘with and without’ basis, and a potential purchaser coming to the property afresh, with the adjoining property already developed. We do not believe, given no 15 as a whole, based in a suburban area, surrounded by gardens, that the proposed development would have any effect on its value.[53]Even if we accepted Mr Stanger’s diminution of £50,000, this would equate to a diminution in value of just over 5%. Mr Francis quite rightly warned us of the difficulties of applying a ‘tariff’, and previous decisions of the Tribunal make it difficult to do so. Mr Green relied on Re Kerai’s Application [2014] UKUT 0153 (LC) and Hennessey v Kent [2017] UKUT 2043 (LC) in support of the contention that a diminution in value of 5% for the effects of development was not substantial; Mr Francis relied on Nathwani v Kivlehan [2021] UKUT 84 (LC) where the Tribunal (Mr A J Trott FRICS and Mrs D Martin MRICS FAAV), holding that a diminution of £70-£80,000 against a base value of £1,200,000 was substantial, observed that:
“whether a practical benefit is substantial is not simply a matter of arithmetic, and will depend on the circumstances…. we do not consider 5% to be a rule of thumb, or threshold, by which we should be bound in this or any future case.”
[54]We agree.[55]In our judgment, again in the light of the limited nature of the application, the practical benefit secured by the restriction does not secure to Mrs Jones a practical benefit of substantial value, or indeed of any monetary value at all.[56]Finally, would money be an adequate compensation for the loss or damage Mrs Jones might suffer if the covenant were modified? We take the view that it would. There is no loss of value to Mrs Jones’ property. There is a very minor loss of amenity which can readily be compensated.[57]We are therefore content that we have jurisdiction to modify the restriction under ground (aa) of s.84(1) of the Act limited to the extent of permitting the development in line with the planning permission, and that money would be an adequate compensation to Mrs Jones for the loss she will suffer as a result of the modification.[58]Since there will be some injury to the objector, the application under ground (c) would fail.[59]The next question is whether we should exercise our discretion to modify the restriction. Mr Francis submitted that two matters are relevant in this respect. First, the qualified nature of the restriction (for newer readers, that Mrs Jones’ permission cannot be unreasonably withheld). Mr Francis’ argument was that Mrs Jones’ consent to the plans could reasonably have been withheld, and that therefore it would be unfair for her to lose the benefit of the covenant by having it modified. But that is to make the very error that Mr Francis thought the applicants had made in instructing Mr Nicholls to assess the validity of Mrs Jones’ objection. It is not the question we have to decide, and we do not decide it. The question is whether the benefit to Mrs Jones of preventing the development would be of substantial value or advantage, and we have decided that it is not. Mr Francis’ point takes us no further.[60]Mr Francis’ second submission on discretion was about the omission from the application of the nuisance and annoyance covenant, outlined at 6(a) above. He argued that this was a “serious omission” and goes to our discretion. He thought that it was the applicants’ responsibility to bring all relevant covenants into the application; if the development goes ahead there is a risk that it will be a nuisance to Mrs Jones, and it is not right for the applicants to “escape the burden” of proving their case for the modification of the nuisance covenant, nor for Mrs Jones to be left with the prospect of further litigation[61]Mr Francis submitted that previous decisions of the Tribunal (Re O’Byrne’s Application [2018] UKUT 395 (LC) at [78] and Kay v Cunningham and Nix [2023] UKUT 252 (LC) at [102]), which indicated that it should be left to the parties to take action in the event of a future breach, were unsatisfactory.[62]With great respect to Mr Francis’ learning, we fail to see that there is any merit in this point. The applicants could hardly be expected to ask the Tribunal to modify a covenant that they say they will not be breaking. They take the risk of action by Mrs Jones if they are wrong about that. There is no basis on which it can be said that the applicants’ intention to abide by the covenants they are not seeking to modify should be held against them in our consideration of whether to exercise our discretion.[63]The weakness of the two arguments made against our exercising our discretion in Mr and Mrs Davies’ favour only serves to stress the fact that there is no reason why we should not do so. We are satisfied that we should exercise our discretionary power to modify the covenant.[64]The statute gives us power to award compensation “to make up for any loss or disadvantage suffered by the person entitled to the benefit of the restriction” (section 84(1A)) As we said above, there will be no loss in value to Mrs Jones’ property. She will be disappointed by the loss of privacy to part of her patio and garden, but much of that loss can be remedied by allowing the hedge to grow – albeit making maintenance slightly more difficult – or by some trellising or other screening, at small expense. We award the sum of £5,000 by way of compensation to make up for the disadvantage Mrs Jones will suffer.

Disposal

[65]The application succeeds under s.84(1)(aa) of the Law of Property Act 1925, provided that within three months of the date of this decision the applicants make a payment of £5,000 by way of compensation to Mrs Jones. The parties are directed to submit within 21 days an agreed draft order to put the Tribunal’s decision into effect, modifying the plans approval covenant to permit building work in accordance with planning permission APPH/23/01942, or any non-material amendment to it made under s.96A, Town and Country Planning Act 1990.[66]This decision is final on all matters other than costs. In the unlikely event that these cannot be agreed having regard to the Tribunal’s Practice Directions (paras 16.10-16.11 at https://www.judiciary.uk/guidance-and-resources/practice-directions-upper-tribunal-lands-chamber/) the parties are directed to submit an agreed timetable for submissions on costs. Upper Tribunal Judge Elizabeth Cooke Mr Peter D McCrea OBE FRICS FCIArb 10 February 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.

Cited in 1 later judgment