The magical expanding easement …
O’Byrnes’ Application  UKUT 395 (LC)
A recent application to the Upper Tribunal (Lands Chamber) provided a useful reminder that a modification to a restrictive covenant under Section 84(1) of the Law of Property Act 1925 can effect an equivalent change to the permitted use of a linked right of way.
Mr and Mrs O’Byrne bought a farm together with barns and farmland for £600,000 from an Oxford College in 2001, subject to a restrictive covenant in favour of the College which prevented the O’Byrnes from using the title other than as a single private dwelling-house. They gained access to the land via a right of way over a road owned by the College, the use of which was limited to “the permitted uses” of the farm which was defined as use as a single private dwelling-house.
They obtained planning permission to convert two barns within the plot to create a further residential dwelling and applied to the Upper Tribunal for the modification of the covenant under grounds (aa) and (c) of section 84(1). As a brief summary, ground (aa) allows a covenant to be discharged or modified if the covenant would impede a reasonable use of the land, and ground (c) permits a modification or discharge if that action would not injure the persons with the benefit of the covenant.
The College opposed the modification contending that it would be injured by the relaxation of the covenant and that the benefits secured by it were substantial. It also argued that the modification of the covenant would not assist the O’Byrnes because it could not be said that the covenant impeded the reasonable user of the land, as the terms of the right of way prevented that use in any event.
The Tribunal refused the application under ground (c), but the O’Byrnes succeeded under ground (aa), in part because it held the College hadn’t demonstrated sufficient practical benefit. The grant of the planning permission indicated that the development was a reasonable use and the factors in favour of modifying the covenant substantially outweighed those against. Importantly, and whilst this is a fact dependent test to be applied with caution, it held the modification of the covenant meant the permitted use of the right of way would be expanded accordingly to enable the modified permitted use, as outlined in the Court of Appeal decision in Hotchkin v McDonald.