Mikael Armstrong & Anor v The President, Fellows and Scholars of The College of The Holy and Undivided Trinity in The University of Oxford of The Foundation of Sir Thomas Pope

Wroxton is a quintessentially English village in rural Oxfordshire, with a duckpond, village green, cricket ground, village hall, and a primary school. It lies about three miles north-west of Banbury. Historically, most of the village was owned and controlled by Trinity College, Oxford (or more formally The President, Fellows and Scholars of The College of The Holy and Undivided Trinity in The University of Oxford of The Foundation of Sir Thomas Pope. I shall simply call them the College), which despite disposing of various properties remains a significant landowner. One such disposal was the 1960 sale of a plot of land in the south-western corner of the village, upon which a bungalow was built called Clearview.

In April 2024, Mikael and Claire Armstrong bought Clearview for £546,600. They then made a successful application to the local planning authority, Cherwell District Council, for ‘permission in principle’ (a relatively new form of quasi-outline consent for small developments) to build a second house in Clearview’s large garden.

However, even if all ‘Technical Details’ are agreed by the Council, the Armstrongs are prevented from implementing the permission by restrictive covenants in the 1960 transfer. The College holds the benefit of the restrictions and is not willing to agree to their discharge or modification. The Armstrongs therefore apply to the Tribunal under s.84, Law of Property Act 1925 for their discharge or modification.

I carried out a site inspection on 4 June 2026, accompanied by the parties, and heard the application at the Royal Courts of Justice on 8 June 2026. Mr Armstrong represented himself and Mrs Armstrong, while Gavin McLeod appeared for the College, calling the College’s Estates Bursar, Mr Christopher Fergusson, to give evidence. The bundle included valuation evidence on behalf of the College, but for the reasons I shall outline this was not relied upon and the valuer was not called.

The restrictions were contained within a Transfer dated 16 May 1960, made between the College and a Peter Hillman, the father of the Armstrongs’ predecessor in title. Clearview was a bungalow constructed under the terms of the Transfer. By clause 2, the purchaser entered into the following restrictive covenants, ‘to benefit and protect the Vendor’s Wroxton Estate’. Listed in a schedule to the Transfer, they were:

“ …

(b)

Not to erect upon the said land hereby conveyed any messuage or building whatsoever except one bungalow with usual outbuildings such bungalow and outbuildings to be of a cost in a position and in accordance with plans designs and elevations and specifications … which shall have been previously submitted to and approved in writing by the Vendors or other the owners for the time being of the Wroxton Estate or their agent…

(c)

Not to use or permit to be used any messuage or building so to be erected for any other purpose than as or in connection with a private dwellinghouse and not to carry on to do or permit to be carried on or done upon the said piece of land or any part thereof or any building thereo[n] any trade business or occupation of any kind or anything which shall or may be or may cause any public or private nuisance or any annoyance inconvenience or disturbance to the neighbourhood.

(d)

Not to make or allow to be made any alteration in the external design or elevation of any messuage dwellinghouse or building to be erected upon the said piece of land hereby conveyed without obtaining the consent in writing of the Vendors or other the owners for the time being of the Wroxton Estate”.

I shall call them the one house restriction, the nuisance restriction, and the design restriction, respectively.

Clearview is in an elevated position on a lane called Lampitts Green, in the south-west corner of the village centre. Its garden is large enough to accommodate a second dwelling. To the east lies community allotments, owned by the College; to the west, the village primary school. The College also owns the land adjoining to the south, Park Farm. On the plan below, Clearview is shown edged in green, and some of the properties owned by the College are edged in red, including Laurels Farm to the south-east.

It will be evident from the above that while the College owns the farm directly to the south of Clearview, its ownership within the village is, now, more dispersed. Many properties have been sold, including the large Jacobean Wroxton Abbey, in the south-east of the plan above, now owned by the American Fairleigh Dickinson University.

The College has obtained planning permission to develop the farm buildings at Laurels Farm, demolishing some of the existing buildings and erecting nine new houses. As a planning condition, to ease congestion from the village a new access road will be built across the farmland, to lead to Newington Road, which in the south-west corner of the plan above.

There is little visibility between Clearview and many of the College’s properties; the notable exception being the immediately adjoining allotments. There is a large belt of trees and foliage between Clearview and the proposed Laurels Farm development, while the view between Clearview and the College’s remaining properties is blocked by other houses in the village.

The application is brought under grounds (aa) and (c) of section 84(1) of the Law of Property Act 1925, which if satisfied give the Tribunal power to discharge or modify restrictive covenants affecting land. As the Supreme Court explained in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45 this involves a two-stage process. First, in what the Supreme Court called the ‘jurisdictional stage’, the Tribunal must be satisfied that one of the prescribed grounds is made out. If so, in the ‘discretionary stage’, the Tribunal must then decide whether and to what extent to exercise its power to discharge or modify. If it discharges or modifies the covenant, the Tribunal may direct the payment of compensation to make up for any loss or disadvantage suffered by the person entitled to the benefit of the restriction. This can be under one of two heads, either (i) a sum to make up for any loss or disadvantage suffered in consequence of the modification or discharge, or (ii) a sum to make up for the effect which the restrictions had, at the time they were imposed, in reducing the consideration then received for the land affected by them.

Ground (aa) is satisfied where the restriction impedes some reasonable use of the land for public or private purposes, and the Tribunal is satisfied that, in so doing, the restriction secures no practical benefits of substantial value or advantage to the person with the benefit of the restriction, or the restriction is contrary to the public interest. The Tribunal must also be satisfied that money will provide adequate compensation for any loss or disadvantage which the beneficiary of the restriction will suffer from the proposed discharge or modification.

In determining whether a restriction ought to be discharged or modified under ground (aa), the Tribunal is required to take into account the statutory development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the area (section 84(1A)). It must also have regard to the period at which and context in which the restriction was imposed and any other material circumstances (section 84(1B)).

Ground (c) is satisfied where that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.

Mr Armstrong explained that he and his wife bought Clearview with the intention of improving and extending the existing house by exercising permitted development rights and obtaining planning permission to build a second house in the garden.

He became aware of the restrictions during the purchase process but assumed that the College would be willing to negotiate to arrive at a sensible agreement, because at the time the restrictions were imposed, the College owned a significantly greater number of properties in Wroxton and would have justifiable reasons for wanting to control development. Since then, the College had sold off many properties, and in his view the restrictions no longer conferred upon it the same benefits.

Mr Armstrong considered that ground (c) was satisfied because modification or discharge would not cause injury to the College. As for ground (aa), he said that the College no longer owned any property which would receive any meaningful or substantial benefit from the restrictions. The nearest property was farmland, which would not be injured or devalued.

He produced a copy of the disposal conveyance dated 7 February 1990 of Bank House Farm, which lies opposite Clearview on Lampitts Green. Here, the College allowed up to three dwellings. At my request, after the hearing the title plan was submitted, an extract of which I reproduce below. The buildings look more extensive than the bungalow at Clearview, but the plot size is broadly comparable.

If compensation were payable to the College, Mr Armstrong thought this should be assessed under the seldom-used sub paragraph (ii) of s.84(1), outlined above. The original 1960 sale price was £200, which accounting for inflation would be around £4,720 in today’s money. In Mr Armstrong’s view, it was quite feasible that the land could have been say 5% more without the restrictions, but not much more because the purchaser only wanted to build a single house in any event. So, the difference would be £10, or £236 if inflation adjusted.

Mr Armstrong referred to various negotiations with the College, but since these were without prejudice I have not had any regard to them, and evidence of the negotiations should not have been included in the bundle which Mr Armstong, as a litigant in person, prepared.

Evidence for the College was given by its Estates Bursar, Mr Christopher Fergusson, who has been in post for eight years. He explained that the College maintained control over any development of the application land using the restrictions, which ensured that any development is consistent with the character of the area. Such control was not only to the benefit of the College’s land but also for the general benefit of occupiers of properties in the area. He provided a letter from Wroxton and Balscote Parish Council which indicated that the Council regarded the various covenants placed on properties in the village as helpful in preserving the character and appearance of the historic village, much of which is designated as a conservation area.

In his view, the College had to balance its charitable objectives to maximise returns, with the long-term care of its estate, and to maintain a high-quality built environment. It does so as a paternalistic benign landlord. When properties are sold, restrictive covenants are placed on titles to enable the College to maintain control. In addition to Clearview, between 1957 and 1971, 48 further properties were, he thought, sold on this basis. A lack of demand for village life caused the College to carry out these disposals.

Mr Fergusson thought that a successful application in the Tribunal may create a precedent for other properties in the village, which is of significant concern to the College; there were other sites around the village that would be susceptible to development. The ability to control development, and avoid ‘open season’ was, in his view, of substantial practical benefit to the College.

Mr Fergusson explained that the ability to curate the design of any development was as important to the College as the principle of development itself. Some residents had approached the College and had obtained permission to alter properties. But overall, in his view residents of Wroxton valued the College’s involvement in requiring compliance with covenants imposed on the properties it sold, and in its ownership of the remaining properties.

During questions from Mr Armstrong, it became apparent that had Mr Armstrong approached the College before submitting the planning application, discussions might have been more fruitful.

As for its own development of Laurels Farm, Mr Fergusson explained that the College had consulted local residents in the village about its development of the ageing farm buildings and as a result of residents’ concerns about traffic on Lampitt's Lane, the College had agreed to access the development from the new road as outlined above. This was all part of its role as a paternalistic and benign landowner.

The College had originally relied upon expert evidence from a Chartered Surveyor but Mr McLeod, sensibly, asked me to place no weight upon it because the expert had been asked to answer to the wrong question, namely to “give an opinion of value of Clearview subject to a restrictive covenant that does not allow development in addition to a value without a restrictive covenant”. He had not been asked to consider the effect of discharge or modification on the College’s estate, under limb (i) of s.84, nor to give a view on the effect on the original purchase price of the restriction under limb (ii). Accordingly, as in the recent application in Butler v Flagship Housing Group [2026] UKUT 182 (LC), at [21], there is no expert valuation evidence before the Tribunal because an expert had been instructed on the wrong basis.

While the application was to discharge, or alternatively to modify, all three restrictions with equal weight, it is appropriate to consider them individually.

The application land is a large plot. It is capable of accommodating a second dwelling, and the planning authority has indicated that, in principle, this would be permitted. Mr McLeod sensibly accepted that, in respect of ground (aa), the proposed ‘user’ was a reasonable one.

I do not consider that the College’s main objection, that of a successful application creating a ‘thin end of the wedge’ precedent, is of merit. When asked, Mr Fergusson was unable to point to similar plots which would likely be the subject of applications for a second house. And in the case of Bank House Farm, of similar plot size, a much more recent restriction allowed up to three dwellings.

That is not to say that the restriction should be discharged, leaving the College with no control over density, but I am persuaded that modification of the restriction to allow one further dwelling on the application land would cause no injury to the College, and that ground (c) is made out.

To recap, the design restriction prevents the Armstrongs from making any alteration in the external design or elevation of any building to be erected without obtaining the consent in writing of the College.

Mr McLeod referred to the Duchy of Cornwall’s developments at Poundbury and Nansledan where rigid controls are in place, but those are rather different, in that they are new-build developments which are likely to involve a Building Scheme. Here, the situation is a historic one, with restrictions being place on piecemeal sales over a long period of time.

I accept Mr Fergusson’s evidence regarding the College’s approach to its stewardship of Wroxton. While it does not have control over about half of the village, it does control either through ownership or through requiring observation of covenants a substantial element. And the residents of Wroxton clearly value the College’s overarching benign influence. The proposed bungalow will not be visible from a large part of the College’s properties. But it will be visible from the adjoining allotments, and it will be visible to residents of Wroxton, and anyone walking down Lampitts Green.

In Edgware Road (2015) Limited v The Church Commissioners for England [2020] UKUT 104 (LC), the Tribunal was satisfied that the Commissioners almost always relied upon the user restrictions within their leases as an important tool in estate management, which amounted to a specific and practical benefit of control.

In Great Jackson Street Estates Ltd v Manchester City Council [2025] EWCA Civ 652 the Court of Appeal (at [52]) considered it legitimate to take account of the role of Manchester City Council as a public body in carrying out its functions on behalf of the citizens of Manchester, and its wider public duties. While the College is not an equivalent public body, there are parallels in the way in which it exercises its powers of control on behalf of the residents of Wroxton, rather than simply for its own ends.

The Court accepted in Great Jackson Street that mere control by enforcement of a covenant cannot be sufficient to amount to a practical benefit, otherwise s.84(1)(aa) would be of little or no use. Something more is required. Asplin LJ, with whom Baker LJ and Nugee LJ agreed, said this (at [54]):

“I also agree that such an ability to prevent the development unless appropriate safeguards are put in place, is not merely "control" in the sense [counsel for the appellant] mentioned. In this case, the covenants enable the Council to further its overall strategy for the development of the area of which the Site forms part. They enable it to prevent the uncontrolled development of the Site and to mitigate the risk that Great Jackson might not commence the development and continue it in a timely fashion or might leave it unfinished. Such an ability goes beyond mere control and is analogous to the circumstances in the Church Commissioners case in which the restriction was a useful tool in the overall management of the estate.”

In my judgment, similar points arise here. It is appropriate to reflect the College’s role as an estate manager with a responsibility to the residents of the village in the way it manages its estate. Wroxton is extremely picturesque, and it is reasonable for the College to maintain control of the design of any development within its jurisdiction, as a paternalistic landlord, to use Mr Fergusson’s description. This is clearly of practical benefit to the College.

I have no expert evidence from either party, on value. Mr Armstrong’s unobjective evidence as to limb (ii) falls at the first hurdle when his figures are compared with the price he and Mrs Armstong paid. In my judgment, the effect on the College’s wider landholding of a relaxation of the design restriction could be significant in the medium to long term. That is impossible to quantify monetarily (and I am doubtful that expert evidence, had there been any, would have assisted on that point) which is an indicator that the disadvantage that the College would suffer by discharge or modification could not be compensated by money.

There is the added difficulty that the Armstrongs do not have a detailed planning permission which I can consider as part of the application. The College, and the Tribunal, are left to speculate as to the detailed design. There is a general plan, but nothing more.

I am satisfied that the ability of the College to enforce the design restriction does secure to them a practical benefit of substantial advantage. Accordingly, the application to discharge, or to modify, the design restriction, has not been made out under ground (aa). And I am satisfied that discharge or modification would cause injury to the College, so ground (c) is not made out.

Mr Armstrong did not pursue the nuisance restriction with any real vigour, and I am not satisfied that the application is made out on either ground.

I am satisfied that I should exercise the Tribunal’s jurisdiction to modify the one house restriction, to allow one further dwelling, in line with Cherwell District Council’s Permission in Principle decision dated 18 February 2025, reference 24/00977/PIP. The application to modify the one house restriction is therefore granted. For the avoidance of doubt, the one house restriction shall be modified to allow two bungalows in total, including the existing dwelling, but with the second bungalow to be constructed in accordance with plans designs and elevations and specifications which shall have been previously submitted to and approved in writing by the College.

The parties are directed to submit an agreed draft Order to the Tribunal within 28 days of this decision.

The application to discharge or modify the nuisance and design restrictions is refused for the reasons given above.

This decision is final on all matters other than costs. In the unlikely event that these cannot be agreed having regard to the Tribunal’s Practice Directions (paras 16.10-16.11 at https://www.judiciary.uk/guidance-and-resources/practice-directions-upper-tribunal-lands-chamber/) the parties are directed to submit an agreed timetable for submissions on costs.