Playing Ball in a changing game: restrictive covenants, red tape and real estate development

Restrictive covenants can be the thinnest yet strongest red tape impeding development. A single line on a title register can constrain land use long after the context that produced it disappears.

Against a backdrop of political emphasis on unlocking development, the statutory jurisdiction under section 84 of the Law of Property Act 1925 is once again attracting attention. Section 84 empowers the Upper Tribunal (Lands Chamber) (the "Tribunal") to discharge or modify restrictive covenants on specified grounds, including where a restriction has become obsolete or impedes reasonable use of land.

Two recent cases suggest courts may be becoming more developer-friendly. Is this conscious, and will this trend endure when the stakes rise?

Ball v Fulton

In Ball v Fulton [2025] UKUT 135 (LC), the covenant in a 1962 conveyance prevented construction of anything other than a single dwelling built in accordance with plans approved by "the Vendor". The Tribunal treated this as conferring a personal control right on the original vendor only, rather than a continuing right benefiting neighbouring land. Once the vendor had died, the approval mechanism no longer made practical sense. The covenant was discharged as "obsolete" under section 84(1)(a).

Seen narrowly, Ball concerns construction and statutory jurisdiction. Seen more broadly (and given that several well constructed arguments run by Andrew Francis (of Serle Court) for the respondent were rejected) it may illustrate a readiness to ask what purpose a restrictive covenant serves today.

Newton Poppleford and Harpford Parish Council v Preston

Newton Poppleford and Harpford Parish Council v Preston [2026] UKUT 69 (LC) was a different ball game. Here, the covenant restricted use of a building to a doctors' surgery. When the doctors practice ceased and no replacement could be found, the local authority sought modification to permit more general medical or health services.

The Tribunal rejected the argument that the covenant was "obsolete" under section 84(1)(a), but modified it under section 84(1)(aa), concluding it "impeded a reasonable use of the land". The objectors, including family members of the original beneficiary, failed to demonstrate any practical benefit of substantial value in insisting upon the original limitation.

There is room to debate whether the Tribunal was generous to the Council. The Deputy Chamber President said he found it "impossible to believe" the original covenantee would have "baulked at the very modest change to the original bargain". Yet the original bargain was changed. The Tribunal was plainly influenced by the practical reality that the building would otherwise sit under-used, constrained by a restriction tied to an unavailable use.

The Upper Tribunal's Approach

Together, these cases suggest a Tribunal willing to examine restrictive covenants pragmatically. Where a covenant has outlived its purpose, it may be removed entirely (Ball). Where it operates with unnecessary rigidity, it may be softened (Preston).

This contrasts with more historic convention, well illustrated in Westminster City Council v Duke of Westminster [1992] 4 WLUK 83, where courts emphasised the enduring force of private property rights. In that era, the judicial instinct was strongly protective: covenants were bargains to be honoured.

The modern position appears to be less absolute. Covenants are still respected, but subjected to the statutory safety net of section 84, operating in a legal and political environment that increasingly emphasises development delivery and removing unnecessary procedural friction.

Looking Forward

So will section 84 become a developer's shortcut?

These cases are slender legal precedent. Both involved relatively modest disputes. Whether the Tribunal would intervene so readily against a large institutional landowner or major developer is far from certain.

Restrictive covenants remain powerful features of the development landscape, but the game around them may be changing. Section 84 is increasingly being used to question whether historic restrictions remain justified. Alongside it, there is growing consideration of section 203 of the Housing and Planning Act 2016 (allowing local authorities to develop in accordance with planning permission despite breaching restrictive covenants) and compulsory purchase powers.

If Ball and Preston indicate what is to come, many restrictive covenants may find themselves sidelined, with ambitious developers back in the game. Then again, section 84 cases also take time and cost, which are commodities rarely available in generous proportions at critical moments in a development timetable.