Planning consent alone will not secure modification of restrictive covenant (Briant v Baldacchino)

Article summary

Property analysis: The Upper Tribunal (Lands Chamber) (UT) considered an application by Mr Briant to modify a restrictive covenant on the basis of ground (aa) of section 84(1) of the Law of Property Act 1925 (LPA 1925), namely whether the restrictive covenant (i) impeded some reasonable user of Briant’s land and (ii) did not secure any practical benefits of substantial value or advantage to Mr Baldacchino whose neighbouring land had the benefit of the restriction. The UT refused the application. Although presented with a number of different planning consents which the UT concluded were a reasonable user of Briant’s land, the restrictive covenant, by enabling Baldacchino to impede the schemes, secured practical benefits of substantial advantage to him. This case is a useful reminder that although the grant of planning consent is a starting point, the requirements of ground (aa) are more onerous. In particular, the burden of proving that the restriction does not secure any practical benefits of...