Case No: LC-2025-394
AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925
Royal Courts of Justice, Strand, London WC2A 2LL
11 August 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT – MODIFICATION – planning permission to convert one unit in a cluster of four dwellings around a common courtyard into two separate dwellings - covenant preventing use other than as a single dwelling – whether the covenant secures to the objectors practical benefits of substantial advantage – s.84, Law of Property Act 1925 - application refused
BETWEEN:
JOHN BLADON
Applicant
-and-
POLLS YARD M.C. LIMITED (1)
ADRIAN DAVID DARBY AND CHRISTINE ELSA DARBY (2)
PAUL JOHN INGLE (3)
DAVID JAMES FRANKLAND (4)
JUDITH LESLEY ARROWSMITH (5)
Objectors
4 Polls Yard,
Castor,
PE5 7DF
His Honour Judge William Hanbury and Mrs Diane Martin MRICS FAAV
8-9 July 2026
Mr Andrew Francis for the applicant (on a direct access basis)
Mr David Peachey for the objectors, instructed by Strictly Legal
© CROWN COPYRIGHT 2026
The following case is referred to in this decision:
Thomson v Collins [2020] UKUT 330 (LC)
Introduction
This is an application by Mr John Bladon (“the applicant”) to modify restrictive covenants affecting his property 4 Polls Yard, Castor, Cambridgeshire PE5 7DF (“the application land”).
The covenants were imposed in a transfer (“the transfer”) dated 9 February 1996, between Francis Charles Winfrey and Richard John Winfrey (“the Sellers”), Poll’s Yard M.C. Limited (“the Management Company”) and John Norman Bladon (“the Buyer”). The transfer contained restrictive covenants in Part 1 of the Third Schedule as follows:
“(a) (i) Not without the previous written consent of the Sellers (and without all necessary statutory consents) to alter the external plan or external elevation of any building standing upon the Property nor without the like permission to erect any building thereon save those erected or in course of erection at the date hereof…
(b) Not to use the Property at any time for any purpose other than that of a single private dwellinghouse”
The covenant in paragraph (a) (i) will be referred to as “the consent covenant” and the covenant in paragraph (b) as “the user covenant”.
On 8 January 2024 the applicant was given planning consent (“the PC”) to convert the garage and barn within the curtilage of the application land into a separate dwelling. The development also required listed building consent (“LBC”) which was granted.
The user covenant prevents the applicant from implementing the PC and on 16 September 2025 he applied to the Tribunal under section 84 (1) (aa) and (c) of the Law of Property Act 1925 in the following terms:
“The user covenant shall be modified to as permit the implementation of the PC and the LBC. The reference to the PC and LBC shall include any subsequent planning consent that is a renewal of the PC or LBC and any other minor amendments to it as approved or ordered by the Local Planning Authority.”
The benefit of the covenants lies with the owners of the other three houses at Polls Yard and the Management Company, all of whom are objectors to the application. Mr and Mrs Darby live at 1 Polls Yard, which they bought as second owners in August 2007. Mr Ingle is the original owner of 2 Polls Yard, which he bought March 1998. Mr Frankland and Ms Arrowsmith are the original owners of 3 Polls Yard, which they bought in November 1997.
The applicant was represented by Mr Andrew Francis and the objectors by Mr David Peachey. We are grateful to them for their assistance. We inspected the application land and Polls Yard on 7 July 2026, accompanied by the applicant and both counsel. At the hearing, we heard evidence from the applicant, from Mr Darby and from Mr Frankland, who holds the appointment of company secretary of the Management Company. The application has been dealt with without the need for expert evidence.
Background
In November 1988 an application to develop the former farmyard at Home Farm to provide six dwellings was refused and the appeal against the refusal was dismissed in August 1990. In August 1991 planning permission was granted for a development of four dwellings – two barn conversions and two new dwellings – around a central courtyard, with a new access created onto Water Lane.
Today the mature development has a secluded character with a degree of intimacy. It comprises an attractive range of stone buildings, some listed in whole or part, set around the communal area of Polls Yard. Polls Yard, including the access from Water Lane, is mostly laid to gravel, with a central oak tree in a circular grass area and narrow grass or cobbled verges along the frontages of the properties. We understand that the verges outside the properties are managed by the respective owners, and that the central area has been managed voluntarily on behalf of the Management Company without the need for employed help.
The application land and the plots of land belonging to each of the objectors at 1, 2, and 3 Polls Yard are shown in the plan below, together with the area of Polls Yard owned by the Management Company. Only the application land has a rear garden. The remaining properties have small front gardens and gain particular benefit from their outlook over Polls Yard.
The restrictive covenants were imposed by the Sellers on all four properties, which also benefit from them. The Management Company was given a high degree of control over Polls Yard and each purchaser agreed in their respective transfers (clause 7) to enter on the register of the respective properties a restriction in the same terms as the one in the applicant’s title:
“RESTRICTION: Except under an order of the registrar no disposition by the proprietor of the land is to be registered without the consent of Poll's Yard M C Limited of 4 Port Lane, Castor, Peterborough.”
The owner/s of each property have a single share in the Management Company and are under an obligation to transfer that share to a successor in title upon sale. The properties have the benefit of rights of way over Polls Yard and there are positive obligations to contribute equally to service charges. The owner of a property on Polls Yard is prohibited from transferring their title without first obtaining from the purchaser a covenant in the form of a draft set out of the Sixth Schedule of the transfer, whereby the purchaser would agree to observe and perform the covenants set out in Part I and II of the Third Schedule. The original of such a deed is to be provided to the Management Company.
In the event of a dispute between the owners in relation to the running of Polls Yard, three of the four owners can form a majority to control the Management Company. Some functions, such as changing the articles of association or dispensing with the agreed rules as to administration of service charges, require three quarters of the members to agree, so no single property owner has a veto over those functions.
The Management Company is shown in the Companies House register as a dormant company.
The application land presently consists of a three-storey house with five bedrooms, including two in its roof space, and an adjoining L shaped building created by adding, with the consent of the Sellers, a link (known as “the barn”) between the house and the garage which sits at right angles to it. The first floor of the barn is fitted out for use by Mrs Bladon to treat clients of her therapy business. The open area in front of the barn and garage is laid to gravel, and this has recently been extended across the front of the house in place of grass. There is a secluded rear garden which is accessed from a narrow drive beside the house at its boundary with 3 Polls Yard.
The proposed development
The proposed development will create a new dwelling, 5 Polls Yard, by conversion of the barn and garage as shown in the elevation plans below. A new central entrance and two ground floor windows will be added to the front of the barn, which already has two dormer windows in the roof space. The rear elevation will have additional windows, including a substantial double Velux window in the roof space, and a glazed door into the rear garden. The rear section of the current garage will be converted into residential accommodation, with access through glazed doors to the rear garden, and the front section will be retained as a garage. Three new Velux windows will be added to the residential part.
The plan below illustrates how it is envisaged that cars belonging to the two properties would be parked, including two new tandem spaces created at the front of the existing house where gravel has recently been laid in place of grass. In order that those two cars can drive straight through the front of the property, a new dropped kerb has recently been created as shown. The objectors say that this has been done on Management Company land, without consultation, and is just one example of several historic encroachments made by the applicant over the years to facilitate intensification of parking on the application land.
The law
Section 84 of the Law of Property Act 1925 provides, so far as is relevant:
“84(1) The Upper Tribunal shall … have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied-
(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or
(b)…
(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say either –
(i) a sum to make up for the loss or disadvantage suffered by that person in consequence of the discharge or modification; or
(ii) a sum to make up for any effect which the restriction had, at the time, when it was imposed, in reducing the consideration then received for the land affected by it.
(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction reference to its impeding some reasonable user of the land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either –
a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or
b) is contrary to the public interest;
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.
(1B) In determining whether a case is one falling within section (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.
(1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Upper Tribunal to be reasonable in view of relaxation of the existing provisions, and as may be accepted by the applicant; and the Upper Tribunal may accordingly refuse to modify the restriction without some such addition.”
The section has been considered in numerous authorities, including many referred to by counsel in this case, but each case is determined on its own facts so very few of those cases need be referred to in our decision.
The application to modify the user covenant
The applicant asks the Tribunal to exercise its power and discretion to modify the user covenant so that the PC can be implemented. The applicant describes the scope of the modification sought as modest, with only limited changes to the external appearance of existing buildings, and places reliance principally on section 84 (1)(aa), noting the power in section 84(1C) for the Tribunal to add further provisions as a condition of modification. The applicant intends that he and his wife will move into the smaller new dwelling and sell the existing dwelling, which has become too big for them now that their family have grown up and moved away. He proposes that either a fifth share in the Management Company could be issued, so that all properties would pay one fifth of the service charge, or he would accept a covenant on the new dwelling to pay one fifth of the service charge as a condition of modification.
Mr Francis submits that the only covenant before the Tribunal is the user covenant since the consent covenant has been extinguished by the death of the Sellers without assignment of that power within 21 years, as provided for in paragraph (a) (iii) of Schedule 4 to the transfer. Mr Peachey, by contrast, submits that the consent covenant has become absolute, although this is inconvenient for all four property owners at Polls Yard and the objectors would be content to see it modified so that consent could be given by the Management Company rather than the Sellers. Both counsel made lengthy submissions on the point, which we will refer to later in this decision.
The grounds of objection to modification of the user covenant
The objectors object to the proposed development not on only on the harm to their enjoyment of their properties but also on grounds that the existing scheme, with its strict regime of covenants benefitting and burdening the four properties forming the existing Polls Yard development, would be undermined if the proposed development were allowed by modifying the user covenant. Once a modification is granted for one property, a precedent would be set for other properties in the development to seek modification to introduce a second dwelling. This would be feasible for 3 Polls Yard, and possibly 1 Polls Yard.
Mr Peachey submits on behalf of the objectors that the proposed development is not a reasonable use for which modification should be considered. Even if the Tribunal disagrees, preservation of the coherent scheme of interlocking covenants, with associated service charge and company membership issues, is a practical benefit of substantial advantage to the objectors. If it is not held to be substantial, then it is a benefit the loss of which could not be adequately compensated by money and the Tribunal should not grant modification.
In the hearing the applicant was cross-examined at length about historic, current and proposed uses of the application land, as Mr Peachey sought to establish that the applicant’s reassurances about how he proposed to manage the additional traffic and increased need for parking lacked credibility.
Mr Peachey also submits that the Articles of Association of the Management Company are a barrier to implementation of the applicant’s proposal. Under Article 3 a “Dwelling” is defined as “one of the four residential units situate at Poll’s Yard” and under Article 4 only a “Dwellingholder” (an owner of one of the four Dwellings) may hold a share in the Management Company. A Dwellingholder is not permitted to dispose of his share whilst still a proprietor of a Dwelling. The applicant has suggested that a fifth share might be issued and allotted to the new dwelling, but the directors of the Management Company have no power to issue or allot new shares.
The Tribunal has no jurisdiction to amend the Articles of Association and so Mr Peachey submits it should not permit modification. Any order for modification could not be implemented without the agreement of the objectors to engage legal advice to amend the Articles. As an alternative, any condition imposed with the modification which required the applicant to pay 20% of the service charge would be a positive covenant and would not run with the property.
The issues to be considered under ground (aa)
Is the proposed development a reasonable use of the land?
For the objectors Mr Peachey contends that this application has similarities with the case of Thomson v Collins [2020] UKUT 330 (LC). In that case the Tribunal (Diane Martin MRICS FAAV) determined that even though planning permission had been granted for residential conversion of a rural building, residential use was not a reasonable one in the proposed location, for a number of reasons including inadequate access. Mr Peachey relies in this case on inadequate access to the application site for pedestrians, resulting from the apparently accidental omission from the PC of a highways condition which had been imposed in an earlier planning consent requiring a pavement to be provided along the access to Polls Yard.
Mr Francis contends that taken on its own the proposed development is a reasonable use of the application land and that, without evidence of the planning authority’s file, the point about the apparently missing condition can be taken no further.
We accept Mr Francis’s point about planning evidence and consider anyway that the circumstances of this application are very different from those in Thomson. Here the proposed residential conversion sits within an existing residential development with an access wide enough for two cars. With the benefit of our inspection we consider that is a reasonable use.
Does the user covenant impede that use?
It is not in dispute that the user covenant impedes the proposed use.
Does impeding the proposed use secure to the objectors any practical benefits?
We received no submissions on whether practical benefits of value are secured by the user covenant, but the case for the objectors is that it does secure practical benefits of substantial advantage to them.
We understand that for at least 25 years the four owners at Polls Yard have lived alongside each other and managed the common areas without any animosity or difficulty. This included originally entering into amicable negotiations with the applicant about his proposal. However, since the objectors have understood fully the nature of the user covenant and the way in which they benefit from it, relations with the applicant have broken down and they now wish to prevent him from implementing the proposal. This seems to have brought to the fore grievances on both sides about encroachments on to Management Company land and parking issues. This is regrettable and we will not reiterate the detail of those grievances.
The objectors have a high degree of concern about the practical implications of introducing a fifth household to Polls Yard. The existing dwelling is large and would be likely to be bought by a family requiring parking for several cars. Although the applicant says that the provision for four cars to be parked at the existing dwelling, along with two at the new dwelling, exceeds the minimum planning requirement of two cars per dwelling, Mr Peachey submits that this does not account for delivery vans and visitors who would park on Polls Yard. In fact, the design and access statement for the planning application specifically referred to the availability of visitor parking outside the property in Polls Yard. Unlike the applicant, the objectors all have properties without rear gardens, so they look out over Polls Yard and would be most affected by increased parking and vehicle movements.
Mr Francis submits that, as in many cases that come before the Tribunal, the objectors’ case relies on fear, which is unjustified. The proposed residential use by an additional family would involve modest visual changes and consequences. The new dwelling would be remote from 2 and 3 Polls Yard and not faced by any windows in 1 Polls Yard. The access road is wide enough for two cars to pass and the new dwelling would be closest to it, so the owners would not need to drive into Polls Yard. Mr Francis acknowledges that there would be some additional traffic but submits that the risk is being overplayed without any empirical evidence of current or likely future traffic movements. There is already scope to create additional bedrooms in the first floor of the barn which, in the occupation of a new family, would give scope for additional cars driven by parents, adult children and visitors. Cars and traffic are features of the modern world.
We acknowledge the arguments of both sides on this issue, and consider that the applicant is genuine in his expressed intent to facilitate the management of parking so as to minimise the impact on the objectors of modification. However, from our site inspection we could see that whilst the introduction of a fifth household to Polls Yard is feasible, the consequences are undesirable. There is clearly a practical benefit to the objectors in retaining Polls Yard as a four household development, with the established patterns of traffic and parking which have generally functioned smoothly since the development was first occupied.
Turning to the fear that modification would set a precedent for other owners to split their properties, Mr Francis submits that we have received no evidence to suggest this is likely. 3 Polls Yard is the property with most scope to create an additional dwelling, but the owner Mr Frankland says that he does not wish to do that, and there is no other evidence that it is a risk. Mr Francis goes further to submit that, on the arguments of the objectors regarding traffic and parking, it would be harder to get a second modification rather than easier. We agree that a second modification is not made more likely by any modification decision that we might make, and we do not consider that preventing a precedent is a practical benefit to the objectors.
Whilst Mr Francis provides good rebuttals to the fears of the objectors, we cannot consider the practical implications of modification in isolation from the legal and technical implications arising from the interlocking rights, restrictions and obligations created when Polls Yard was developed. The Management Company provides the essential mechanism by which the owners of the four properties can work together, as a whole or as a three share majority, to manage Polls Yard for the benefit of all. Mr Peachey submits that to untangle the existing structure and reconfigure it for five properties would incur legal costs and require not only the consent of the owners but probably the consent of the lenders with charges over two of the properties. The current scheme is balanced, and is what the original owners signed up to. To alter it would create imbalance and would be unfair on the other owners as well as imposing costs on them.
Mr Francis submits that whilst the provisions of the Articles of Association do mesh together with the rights and covenants created by the transfers, they do not constitute a formal building scheme. He says that the Tribunal has power under s84(1C) to impose additional covenants and conditions, although he accepts that changes to the structure of the Management Company would require the agreement of the other unit holders. He submits that this could be done with the assistance of a mediator.
Mr Frankland gave evidence that until 2025 there had been no need for annual general meetings to be called because management and the sharing of expenses was agreed between the four shareholders informally. However, in September 2025 he received, as company secretary, notice of this application and called an extraordinary general meeting on 5 November 2025. The agenda included an item proposing that each household should contribute £1,000 to a fund to enable the Management Company to meet its legal obligations. The applicant objected to funding the costs of an objection against his own application and the proposal went no further, with the objectors funding the objection themselves.
In light of that evidence we consider that Mr Francis is unduly optimistic in his view that, with the assistance of a mediator, the objectors would agree to amend the Articles of Association to permit the proposed development. As Mr Peachey suggested, given the strength of their objections, and the inconvenience and cost already incurred, the further inconvenience and cost of negotiations through a mediator would be strongly resisted. We agree that avoiding such a situation is another clear practical benefit of the user covenant to the objectors.
Are the practical benefits of substantial advantage?
We conclude that being able to prevent the proposed development, with the practical implications which would flow from introduction of a fifth household into a settled four household development, and then the prospect of a costly and disputatious negotiation about the Articles of Association, provides practical benefits of substantial advantage to the objectors.
Ground (c) – Modification would cause no injury to the persons entitled to the benefit of the user covenant
This ground falls away now that we have found that the user covenant secures practical benefits to the objectors.
Determination
We determine, based on our observations during the inspection and the evidence we heard, that the practical benefits secured by the user covenant are of substantial advantage to the objectors and we therefore have no jurisdiction to discharge or modify it under either ground (aa) or ground (c).
The consent covenant
We heard lengthy submissions on the status of the consent covenant. We have determined we have no jurisdiction to modify the user covenant and, since the applicant did not apply for the consent covenant to be modified, we do not need to make a finding on it.
However, should the parties be able to agree a form of words to modify the consent covenant they may make submissions to us within one month for a modification by agreement.
His Honour Judge William Hanbury Mrs Diane Martin MRICS FAAV
11 August 2026
Right of appeal
Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.