Background
Johnson Aboaba and Lena Buhler applied under section 84 of the Law of Property Act 1925 to discharge or modify a restrictive covenant affecting land at Shride Barn, Othery, Bridgwater. The land contains a former barn, now called the annexe, which was redeveloped in 2008 as a home office, laboratory and workshop. Somerset Council granted a certificate of existing lawful use as ancillary residential accommodation on 12 February 2024. The applicants bought Shride Barn and the application land on 3 July 2024 and subsequently used the annexe intermittently for holiday lettings and for friends and family. Retrospective planning permission for change of use of the outbuilding to an annexe and holiday let was granted on 20 April 2026.
The restriction was imposed by a transfer dated 9 May 2003. It prohibited erecting any dwellinghouse on the property and converting any building for use, or using any building, as a dwellinghouse. Steven Phillip, who purchased the retained land at Shride Farm House on 9 June 2023, held the benefit of the covenant and objected to the application. The applicants relied on grounds (a), (aa) and (c) of section 84(1), arguing respectively that the restriction was obsolete, that it impeded reasonable use without securing practical benefits of substantial value or advantage, and that modification would cause no injury. They proposed a modification permitting use in accordance with the 2026 planning permission, subject to conditions concerning pets, a maximum of four paying guests, outside noise between 9 pm and 7 am, and use of the jacuzzi after 7 pm.
Phillip argued that the covenant continued to protect the quiet residential character of his property. He described noise from guests using the terrace and jacuzzi, traffic on the shared access road, headlights, loss of privacy and guests mistakenly driving towards his house. He also relied on the applicants’ knowledge of the restriction before purchase, their unsuccessful approach seeking an amendment, and their commencement of holiday lettings without an amended covenant or planning permission.
The Court’s Holding
Mrs Diane Martin TD MRICS FAAV rejected ground (a). Applying the approach in Re Fermyn Wood, she inferred that the restriction’s purpose was to protect Shride Farm House from residential conversion or development on the application land. She declined to make findings about tourist enterprises that Phillip and his partner might have operated or intended to operate, explaining that such enterprises were within his control and did not prevent the restriction’s purpose from being achieved. A handful of other tourist businesses did not establish a change in the neighbourhood’s character, and the peaceful rural location was unaffected by external tourist activities. Although the application land had changed through replacement of the redundant building, preventing use of the annexe as a dwellinghouse had become more important, not obsolete.
Under ground (aa), holiday letting was a reasonable use and the restriction impeded it. The Tribunal accepted that paying guests might cause more intensive intrusion than private guests, particularly through noise from the terrace and jacuzzi. Nevertheless, because use as a residential annexe did not constitute use as a dwellinghouse, the remaining benefits were marginal ones secured by preventing holiday lettings. Those benefits were real but not of substantial value or advantage. The Tribunal therefore found that, in principle and subject to discretion, it had jurisdiction to modify under ground (aa), provided money would adequately compensate any loss or disadvantage.
The Tribunal ultimately declined to exercise that discretion. It considered the planning history under section 84(1B), including that residential-annexe use had become lawful by default after a certificate of lawful use, rather than through conformity with the development plan. It also identified merit in the potential argument, based on Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd, that knowingly letting in breach after consent had been refused amounted to cynical breach for profit. The applicants’ approach of seeking retrospective approval, together with the objector’s real though insubstantial loss of benefits, made modification unfair and unjust. The determination expressly refused modification under grounds (a) and (aa); ground (c) was addressed in the parties’ submissions but received no separate express determination.
Key Takeaways
- Ground (a) failed because the covenant’s protective purpose remained achievable despite changes to the building and nearby tourist activity.
- Ground (aa) established jurisdiction in principle because the marginal benefits of preventing holiday lettings were not substantial.
- Jurisdiction did not produce relief: the Tribunal refused modification as a matter of discretion.
- The applicants’ knowledge of the restriction, conduct and retrospective planning approach were material to that discretionary refusal.
Why It Matters
The decision illustrates the distinct jurisdictional and discretionary stages of a section 84 application. Establishing that a covenant impedes reasonable use without securing substantial practical benefits does not ensure modification. Planning permission, the history of the land and the parties’ conduct may remain decisive when the Tribunal considers whether relief would be fair and just.