Four Grounds Under s.84 LPA 1925
Ground (a): obsolete — changes in character of property/neighbourhood or other circumstances make the restriction obsolete; high threshold. Ground (aa): most commonly used — impedes reasonable user AND restriction lacks practical benefit of substantial value or is contrary to public interest AND money adequate compensation. Ground (b): consent — all persons entitled to the benefit have consented; requires identifying all beneficiaries. Ground (c): no injury — discharge/modification will not injure beneficiaries; only viable where covenant has become worthless. Most applications plead Ground (aa) — 'practical benefit of substantial value' is the key battleground.
Ground (aa) — Practical Benefit of Substantial Value
Re SJC Construction Co Ltd [1974]: 'practical benefit of substantial value' means real, substantive benefit — not merely formal or theoretical. Factors: neighbourhood character; privacy; views; noise; traffic; nature and scale of proposed development; number of beneficiaries. Public interest: proposed development serving public benefit (affordable housing; community facilities) may outweigh private benefit. Compensation adequacy: even where restriction provides some benefit, Ground (aa) can succeed if money compensation is adequate — Tribunal then awards compensation to beneficiaries.
Procedure
Upper Tribunal (Lands Chamber): apply using UT1 form; set out grounds and discharge/modification sought. Identify all beneficiaries: significant challenge for covenants benefiting a large estate or many properties; may require detailed title investigation. Serve notice on all beneficiaries; advertise in local newspaper and London Gazette (for pre-1926 covenants). Objection period: typically 28 days from last advertisement. No valid objections: Tribunal may determine on papers. Objections received: full hearing; expert valuation evidence required from both sides. Costs follow the event.
Compensation and Land Registry
Compensation (Ground (aa)/(c)): diminution in value of beneficiaries' land caused by discharge/modification; awarded by Upper Tribunal. Negotiated consent orders: many applications settle — applicant pays agreed sum to beneficiaries for consent; avoids contested hearing. Land Registry: once UT order made, apply to HM Land Registry (form AP1 / UN4) with certified copy of order to remove/modify entry on burdened title (and dominant title if registered). No Land Registry fee for registering the order. Costs: s.84 proceedings are expensive; expert valuation surveyors essential; budget carefully.
Long Leasehold and Scotland
Long leasehold: s.84(12) LPA 1925 — Upper Tribunal jurisdiction extends to leases with 40+ year original term and 25+ years remaining; allows long leaseholders to apply for covenant modification. Scotland: Title Conditions (Scotland) Act 2003 — real burdens (Scottish equivalent of restrictive covenants) can be varied or discharged by application to the Lands Tribunal for Scotland; grounds include change of circumstances; unreasonable burden; public interest; consent — similar to s.84 but Scottish-specific procedure and approach. Specialist advice essential: s.84 applications require specialist property litigation solicitors and expert valuation surveyors.