Restrictive Covenants & Easements: Whether the Upper Tribunal Had Jurisdiction to Modify a Limitation on a Right of Way ( Garton v Wheatcroft Land (Thoroton) Ltd & others – 2025)

The Upper Tribunal considers whether it has the necessary jurisdiction to modify a limitation on a right of way affecting land subject to a planning application.

The background

In 2022, the applicant in Garton v Wheatcroft Land (Thoroton) Ltd & others [2025] obtained planning permission for the erection of a dwelling in the garden of her property, the Manor House in Thoroton, Nottinghamshire.

The applicant proposed to use land adjoining their garden (the “Application Land”) for access, parking and a garden for the new dwelling. A restrictive covenant affected the Application Land which limited the land’s use to a private garden for domestic recreation only.

The Application Land benefited from a right of way over a private access road to Thoroton Farm. Again, the easement was limited to use of the Application Land as a private garden for domestic purposes. The restriction and the right of way were imposed in 2019 when the applicant acquired the land from the proprietors of Thoroton Farm.

The respondent acquired Thoroton Farm in 2020 and developed 8 new dwellings on its land. In order to allow her to exercise her planning consent, the applicant made an application to the Upper Tribunal under s.84 of the Law of Property Act 1925 to modify the restrictive covenant  and the right of way, to which the respondent and property owners of the dwellings on Thoroton Farm land objected.

A site visit was undertaken by the Tribunal, which was asked within the application to consider whether it had jurisdiction to not only modify or discharge the restrictive covenant, but also the limitation on the right of way.

The decision

The Upper Tribunal refused the application, and accepted the objector’s submission that the Tribunal does not have jurisdiction under s84(1) to modify or discharge an easement, even if it restricts use of the applicant’s land.

S.84 (1) states that “The Upper Tribunal shall…have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction…”.

The applicant argued that “…under covenant or otherwise…” meant that the Upper Tribunal’s jurisdiction to modify or discharge was not limited to the restrictive covenant, but could also encompass the limitation on the right of way. The applicant further argued that the restrictive covenant was now made obsolete due to changes and development in the local area and on the adjoining land owned by the respondent. The applicant stated that her proposed use under the planning permission was reasonable, that the restrictive covenant prevented their reasonable use, and did not offer an equivalent benefit to the respondents.

The respondents argued that s.84 did not confer the necessary jurisdiction on the Upper Tribunal as the right of way did not constitute a covenant. Further, they argued that the restrictive covenant was not obsolete. The applicant had knowledge of it, and it continued to protect the respondents against increased traffic and parking problems along the access road.

The Upper Tribunal referred to the case of Re O’Byrne’s Application [2018], which found that where a tribunal modified a restrictive covenant relating to permitted use, use of a right of way for the purposes of the modified permitted use is lawful. However, the right of way was not linked to the restriction in this case. Even if the restrictive covenant was modified, the easement would not change.

Accordingly, the Upper Tribunal held that the restriction was not obsolete, concluding that it offered practical benefits to the respondent and objecting parties, and finding that it did not have jurisdiction to modify the limitation on the right of way.

Final thoughts

This decision supports established principles that, where a restrictive covenant continues to serve its intended purpose, the Upper Tribunal is unlikely to modify it. Further, the Upper Tribunal is unlikely to modify restrictive covenants that have only recently been imposed (in this case within the past 6 years).

The Upper Tribunal’s decision also confirms that the Upper Tribunal does not have jurisdiction to modify limitation on an easement under s.84.