If a developer faces injunction proceedings because a development is argued to be in breach of a restrictive covenant, then it is possible to apply for a stay of the injunction proceedings, with leave to apply to the Lands Tribunal under s84(1) LPA 1925. For instance, this would be the obvious route if there had been a radical change in the neighbourhood so that it seemed highly likely that the Tribunal would vary or discharge the covenant.

Insurance may seem the easy way of side-stepping the potential problems raised by a restrictive covenant. But, do bear in mind that:

Most people will think of an ‘annoyance or nuisance’ covenant as applying solely to activities carried out on a property (eg disturbance coming from a building). But, that is wrong, since the covenant can also cover the erection of the building itself.

How do you get rid of a troublesome restrictive covenant? The first thought may be to apply under s84(1) LPA 1925 to the Lands Tribunal, for the discharge or modification of the covenant. But, that is a relatively expensive (and time consuming) process. Moreover, the tribunal will not be sympathetic to an application that does not have planning consent, since otherwise it will not be able to see precisely what is proposed and the effect on other properties (see re Davies [2006]).

It is only rarely that the Land Registry can release (ie cancel) a restrictive covenant. Usually, what happens is that the LR will merely make an entry on the register saying that ‘by a deed dated... the covenant contained... were expressed to be released’. Thus, the LR is confirming that they were ‘expressed’ to be released but it is not guaranteeing that they were released.