Restrictive Covenants

A restrictive covenant is a covenant or agreement which affects how an owner can use his land. Such covenants may last indefinitely but, owing to (for example) the passage of time, or changes in law or policy, may become obsolete or onerous. The Upper Tribunal (Lands Chamber) has power to modify or discharge a restrictive covenant if specified conditions are met, e.g. where the covenant prevents a reasonable use of the land and any harm to third parties can be adequately compensated by the payment of money: s.84(1)(aa), Law of Property Act 1925.

In the case of Davies and another v Jones [2026] UKUT 51 (LC) (before Judge Cooke) the parties were neighbours. The land on which their respective properties were situated had once been in common ownership but, when the separate plots had been created, one plot (now held by Mr and Mrs Davies) was subject to a restrictive covenant which required any dwelling on the plot to be a bungalow. The evidence suggested that the original owner of both plots had imposed this restriction so as to ensure that the second plot (now owned by Mrs Jones) would not be overlooked. Mr and Mrs Davies had secured planning permission to make part of their bungalow into a two storey house and sought modification or discharge of the covenant accordingly. Mrs Jones resisted the application.

The Upper Tribunal allowed the covenant so as to permit development in the terms for which planning permission had been granted. Having carried out a site inspection, the Tribunal was satisfied that any overlooking would be “very limited” and could easily be eliminated if Mrs Jones allowed her hedge to grow. A payment of £5,000 would be adequate so as to permit Mrs Jones to buy trellising or other screening plants.

Oliver Kew

Published on 30/09/2026