• the covenant is obsolete; or
• the covenant impedes some ‘reasonable use’ of the land. But, for this to apply, the restriction must either: (i) not confer ‘any practical benefits of substantial value or advantage’ or (ii) be contrary to the public interest.

In a recent case, it was argued that the covenant impeded some ‘reasonable use’ of the land, and that it did not give any ‘practical benefits of substantial value or advantage’ to the objectors. This was in the context of a 1952 development, prohibiting use other than as a single private dwelling house (and also prohibiting doing anything that would be a ‘nuisance or annoyance’). In 2002, planning permission was granted for the erection of a bungalow in the garden of one of the properties, and in 2003 all the neighbours got a court declaration that construction of the bungalow would be a breach of covenant. At that stage, an application was made to the Lands Tribunal, which agreed to modify the covenant because:

• the proposed use of the property was ‘reasonable’ (given the existence of the planning permission);
• the open market value of the neighbours’ properties would not be reduced; and
• whilst the development would have some adverse effects on the objectors’ properties (eg visual impact, loss of privacy and marginal increase of noise), these did not amount to a ‘practical benefit of substantial value or advantage’. In particular, the noise disturbance during the construction works would not be substantial and could be dealt with by compensation.

The LT decision was upheld by the CA. As such, it is an interesting illustration of how s84 can work in practice, although it should be emphasised that such decisions are always on their own facts. However, it is an indicator that s84 may have more teeth than is commonly realised and that the CA is more willing to see s84 used to enable reasonable developments to proceed. Of particular interest was the CA’s lack of sympathy for the argument based on nuisance during construction works; even though there was a specific covenant prohibiting ‘nuisance or annoyance’, the CA did not follow earlier decisions in which construction nuisance was held to be a ‘practical benefit’. Shephard v Turner [2006] EWCA Civ 8. © Practical Lawyer