Restrictive covenants can be modified or discharged through the Upper Tribunal where they limit reasonable use of land. Recent guidance in Harrison-Ellis v Hunt [2025] UKUT 295 (LC) underlines how fact-specific these decisions are and, importantly, how evidence and timing often matter more than legal theory.
What are restrictive covenants—and why do they still cause problems?
Restrictive covenants are promises attached to land which limit how that land can be used. They “run with the land”, meaning they bind future owners, sometimes decades (or more) after they were first imposed.
Common examples include things like preventing building beyond a certain height, restricting use to a single dwelling and prohibiting trade or business use. On paper, they’re simple. In practice, they can frustrate development, refinancing, or even day-to-day use.
Can restrictive covenants be changed or removed?
In short, yes but not automatically and rarely quickly.
In England and Wales, section 84 of the Law of Property Act 1925 allows the Upper Tribunal (Lands Chamber) to modify or discharge a covenant. An application can be made under one of the following four grounds:
- ground (a)—the restriction is obsolete
- ground (aa)—the restriction impedes reasonable user
- ground (b)—agreement of beneficiary
- ground (c)—no injury to beneficiary
An application to the Tribunal will be necessary where the parties cannot negotiate an express release between them.
What did Harrison-Ellis v Hunt [2025] actually say?
The decision reinforced the principle that the Tribunal is far more focused on real-world impact than abstract legal arguments. In this case, the applicant sought to modify a restrictive covenant affecting residential use. The Tribunal examined the actual benefit to neighbouring land, whether the proposed use materially reduced that benefit, the credibility and detail of expert evidence and the surrounding pattern of development
The Tribunal carefully weighed local context. It didn’t just ask, “Is this covenant inconvenient?” It asked, “Does it still serve a meaningful purpose here, now?” And importantly, the answer wasn’t obvious at the outset.
The case also highlighted the importance of timing. Developers who build first and seek permission later are likely to face difficulties in getting covenants removed or modified after the event. Likewise, objectors who fail to engage or delay action can also undermine their position.
Does planning permission override restrictive covenants?
Planning permission and restrictive covenants operate separately. You can have full planning consent and still be unable to build because of a covenant. The Tribunal in Harrison-Ellis treated planning permission as relevant, in helping to demonstrate reasonable use, but not decisive. It was part of the wider picture, not a trump card.
When are covenants considered “obsolete”?
A covenant may be discharged if it no longer reflects the character of the area. But “obsolete” is a higher bar than many assume. In Harrison-Ellis, the Tribunal looked closely at whether the surrounding area had materially changed, whether similar restrictions were still being observed and whether the original purpose of the covenant still had value
Incremental change is not always enough. The test is whether the covenant has genuinely lost its function—not just whether it feels outdated.
What are the risks of applying to the Tribunal?
It’s not simply a procedural exercise. There are real considerations:
- Cost exposure: If unsuccessful, you may face your own and potentially others’ costs
- Delay: Applications can take months, sometimes longer
- Neighbour objections: Beneficiaries of the covenant can actively resist
And occasionally, the application itself raises awareness of a covenant that might otherwise have remained unenforced.
That does not mean you should not apply but it does mean timing and strategy matter. Before taking formal steps, it is worth reviewing the title documents carefully, identifying who benefits from the covenant, considering whether consent can be negotiated and taking early valuation and planning advice.
Sometimes, a conversation with neighbouring landowners achieves more than a Tribunal application, and far more quickly.
If you require legal support with any issues covered in this article, please contact Annabel Mayer or visit our website for more information: Easement and Covenant Disputes – Greene & Greene.
