Restrictive covenants which prevent development, and the role of Section 84

The case of Hassan & Osman v Heath (Upper Tribunal August 2025) illustrates how restrictive covenants can significantly impact proposed developments or extensions, even when planning permission has been granted.

The case involved a dispute over restrictive covenants imposed in 1986 on a property owned by Mr Hassan and Dr Osman, which prevented alterations to the external plan or elevation of their Victorian house. They wished to carry out a loft conversion and a ground floor extension to accommodate the needs of their autistic son. Planning permission was granted for the proposed works. The applicants were not the original covenanting parties to the restrictions but were aware of them and knew that the proposed works would constitute a breach. Despite this they commenced work on the ground floor extension.

The neighbour, Mr Heath, opposed the modifications, citing concerns about the adverse impact on his property. After an interim injunction was granted to halt the works, the applicants made an application to the Upper Tribunal (UT) under section 84(1)(aa) of the Law of Property Act 1925 to modify the covenants so as to permit the alterations. Mr Heath argued that the roof works would adversely affect his conservatory and garden, and that the ground floor works would cause light pollution and disrupt the neighbourhood’s character.

The UT assessed the impact of the roof and ground floor works separately and partially allowed the application, permitting the ground floor extension but refusing the loft conversion. The UT found that the roof works would have an oppressive effect on Mr Heath’s conservatory and garden due to the increased height of the roof structure, which would disrupt his enjoyment of his property. However, the UT determined that the ground floor works were not particularly objectionable and did not provide Mr Heath with substantial practical benefits. The UT therefore exercised its discretion to modify the restrictions so as to permit the ground floor works, taking into account the applicants’ family needs and the disproportionate impact of refusing consent, which could expose them to an injunction requiring the removal of the work already commenced

This case demonstrates the matters which the UT will consider in deciding whether or not to modify restrictive covenants under section 84(1)(aa) of the Law of Property Act 1925 and the extent of its discretion. The UT must assess whether the restriction secures practical benefits of substantial value or advantage to the objector, and whether money can adequately compensate for any loss or disadvantage suffered by the objector. Planning permission, while significant, is not conclusive in determining whether a proposed use is reasonable under section 84(1)(aa). The UT will also consider the development plan, the context in which the restriction was imposed, whether the parties were the original covenantor/covenantee and other material circumstances.

The UT took the view that, whilst ill-advised, the applicants’ commencement of the works in the face of the restrictions was not a cynical breach and it considered the impact of refusing consent on the applicants’ family needs.

The case shows the balance the UT seeks to achieve between the interests of the burdened and benefiting parties, ensuring that land use is not unreasonably impeded while protecting the practical benefits secured by the covenants.