Guidance

Guide for applications to discharge or modify restrictive covenants (T608)

Updated 1 May 2024

1. Restrictive covenants

A restrictive covenant is a legally binding restriction imposed on land by agreement between two freehold landowners or contained in a lease. Restrictive covenants are often imposed when someone sells their land, for example to prevent the buyer from using it for business, to prevent building on it, or to ensure that they keep to a particular style or size of building. Restrictive covenants are imposed by deed, often on a sale of land, but they are private arrangements – only the person who imposed the covenant, and anyone who owns any of that person’s land later, can enforce the restrictive covenant.

Land may be subject to restrictive covenants imposed many years ago, for example when land was sold for housing in the 20th or even 19th centuries. Today it may be difficult to tell who can enforce the covenant and old conveyancing documents may have to be inspected even though the land is registered.

Restrictive covenants have nothing to do with the town and country planning system – a restrictive covenant can prevent development even if it has planning permission.

It is possible to apply to the Lands Chamber of the Upper Tribunal to have a restrictive covenant “discharged or modified”, as the statute puts it, in order to get the covenant removed or changed so that development can take place or the use of the land can be changed.

2. Discharging or modifying restrictive covenants

The owner of land (freehold or leasehold) that is subject to a restrictive covenant may apply to the Upper Tribunal (Lands Chamber) to have the restriction discharged or modified under section 84 of the Law of Property Act 1925. The tribunal has no power to discharge or modify positive covenants (meaning a covenant requiring the landowner to do something, rather than not to do something) or to discharge or modify easements, such as a right of way.

Part 6 of the tribunal’s procedure rules details the application process and the powers of the tribunal. Paragraph 16 of the tribunal’s practice directions provides a short overview of the process. The law on restrictions affecting land is complex and it is advisable to seek legal advice before applying to the tribunal.

3. The application process

3.1 Making an application

The applicant must make an application using Form T379 and must submit it to the tribunal, ideally electronically but it may be posted, together with the documents specified by the form and the application fee.

3.2 Giving notice of the application

The application will be given a case number. The registrar will give directions for notice of the application to be given to those who may own land with the benefit of the covenant. This may involve placing a newspaper advertisement, placing of notices on the application land where they can be read by the public, or giving a publicity notice (Form T380) approved by the tribunal to the owners or occupiers specified in the directions. The applicant must complete a certificate of compliance (Form T382), with proof of service, to show that they have properly carried out the directions.

3.3 Objecting to an application

If anybody wishes to object to the removal or alteration of the restrictive covenant, they must complete a notice of objection (Form T381), which the tribunal and the applicant must receive within one month of the date on which notice of the application was given. There is no fee payable for objecting. The form requires the objector to explain the basis of their entitlement to the benefit of the covenant and the grounds of their objection to the application.

When land is registered, it is usually obvious from the registered title if it is subject to restrictive covenants, but the register does not usually show that land has the benefit of restrictive covenants over other land. An objector in doubt about their legal right to the benefit of the restrictions should seek legal advice.

If no objections are received, the applicant may ask the tribunal to determine the application without a hearing.

3.4 The admission of objectors by the applicant

Within 14 days after receipt of a notice of objection, the applicant must inform the tribunal and the objector whether they believe that objector is entitled to the benefit of the restrictions to which the application relates. An objector whose entitlement is not disputed by the applicant within 14 days is automatically admitted to oppose the application.

If all objectors are accepted by the applicant as being entitled to the benefit of the restriction, the case proceeds to dealing with the application itself.

If the applicant does not agree that an objector is entitled to object to the application, then the objector must, within 14 days of being notified by the applicant of their disagreement, provide the applicant and the tribunal with evidence of their entitlement to object. This will usually involve producing their registered title, if their land is registered, and older conveyancing documents, if available.

Within 14 days of receipt of the objector’s evidence, the applicant must inform the tribunal and the objector whether, having seen the evidence, the applicant now accepts the objector is entitled to object. If they do not, the tribunal will decide whether the objector is entitled to object, usually on the basis of the written evidence the parties have supplied so far. Occasionally a hearing may be required.

If the applicant has disputed the objector’s entitlement, and the tribunal decides that the objector is entitled to object, the tribunal may order the applicant to pay the objector’s costs of proving their entitlement. An objector who is not able to establish that they are entitled to the benefit of the covenant will not be able to proceed further with their objection. Such an objector is also likely to be liable for the applicant’s costs incurred in dealing with this issue.

Once the question of who is entitled to object has been decided, the tribunal can give directions for the hearing of the application.

4. The hearing of the application

4.1 Listing

The directions will propose a calendar window for listing the hearing and a suggested number of days, including for a site inspection by the tribunal judge or member hearing the case. The parties will be invited to provide dates to avoid within that period. The tribunal hears most cases at the Royal Courts of Justice in London, but if the parties request a hearing to take place locally, the tribunal will try to arrange suitable courtroom accommodation.

4.2 Representation

Applicants and objectors are entitled to appear on their own behalf but, as the law is complex, lawyers are often instructed. Once a party is legally represented, the tribunal will then communicate through that representative. In cases where there are several objectors to an application, it is helpful for the objectors to nominate one amongst them to be their representative for communication with the tribunal and the applicant.

4.3 Witness evidence

Neither party may take their opponents by surprise at the hearing by withholding material until the last minute. Directions will be given with dates by which the applicant and objectors are to send to the tribunal, copied to the other party, their witness evidence. This will include a witness statement for any witness of fact, and the report of any expert witness they will call to give opinion evidence. Paragraph 19 of the tribunal’s practice directions explains the tribunal’s expectations for expert evidence.

4.4 Hearing bundles

The applicant is responsible for producing indexed and paginated bundles of the relevant documents for the hearing in accordance with paragraph 20 of the tribunal’s practice directions.

4.5 Procedure at the hearing

When the hearing begins, the applicant usually starts first by setting out their case, then calling evidence and presenting documents. Each witness gives evidence on oath or affirmation and is liable to be asked questions by the tribunal and cross-examined by the objector. The objector then introduces their case and calls evidence, and the applicant may cross-examine their witnesses. Each party has an opportunity to set out any legal arguments it relies on in support of their case.

Further guidance is available in paragraph 21 of the practice directions.

4.6 The decision

Decisions are given in writing and sent to the parties a few weeks after the hearing. The tribunal will then invite the parties’ submissions on costs, where appropriate.

4.7 Costs

Generally, successful objectors will be awarded their reasonable costs. Successful applicants cannot however expect to be awarded their costs. That is, even if unsuccessful, an objector will not usually be ordered to pay the applicant’s costs unless the conduct of the unsuccessful objector has been unreasonable. It is only in exceptional circumstances that an applicant would be ordered to pay the costs of an unsuccessful objector.