The Upper Tribunal has handed down a run of decisions in 2026 dealing with s.84 applications to modify or discharge restrictive covenants. For developers, the message is broadly encouraging: planning permission remains a powerful lever and historic covenants are vulnerable, but communal schemes and user covenants remain difficult to challenge.
This article distils the themes across MDM Civil Engineering v Morgan [2026] UKUT 347 (LC), Hughes Family Property v Marvin [2026] UKUT 310 (LC), Domus Living v Edwards VII Estates [2026] UKUT 287 (LC), and Bladon v Polls Yard MC Ltd [2026] UKUT 298 (LC).
Planning Permission has been Useful to Developers
The Tribunal’s willingness to align covenant modification with planning permission is most visible in MDM Civil Engineering. The covenant in that case stipulated that MDM promised “not to use or suffer to be used the Property for any purpose other than as two private dwellinghouses.” It appears that the reason for the restrictive covenant may have been a refusal by MDM to agree to an overage for a third plot rather than a genuine desire to retain character or some other benefit for the two properties that were to be built. MDM tried and failed to obtain planning permission for a third property on three occasions. On the fourth time of asking however, the Council changed its position.
The Tribunal considered that both grounds (aa) and (c) were made out. It was noted that planning permission indicated that the use of the land was reasonable, this was described as a “persuasive factor” in the Tribunal’s consideration. Crucially however, the only beneficiary of the covenant was the company who had sold the land to MDM and not, as suggested by the case name, Mr Morgan. In the circumstances the covenant was not held to secure a practical benefit, merely a pecuniary one and further, the loss of an opportunity to demand a price for the release of the restriction was not an injury for the purpose of ground (c).
When going on to exercise its discretion, planning permission again played a central role: the Tribunal noted that the recent nature of the covenant coupled with “the linkage between the original covenantor and the applicant” weighed against granting the application but ultimately it allowed the application, noting that planning consent was in place and the development would be of benefit to all concerned.
A similar approach was taken in Hughes Family Property, where the Tribunal modified a covenant preventing any building on garden land to allow a three‑bedroom house for which permission had already been granted. The proposed use was held to be reasonable and indeed none of the objectors even took the point. The planning permission is mentioned repeatedly in the Judge’s consideration as to whether the covenant secured a practical benefit, specifically the height of the permitted development is noted along with the placement of the windows and the planning officer’s report which stated that the development “reflected the character and local distinctiveness of the area and would not harm the visual amenity of the site…”. The case is an example of how the details of a planning application and the associated report can be used to support submissions which lead to success in the Tribunal.
Cynical Breaches: Still a Red Flag
Conduct remains an important factor. In Domus Living, the developer had constructed a house some 1,200–1,300 square feet larger than permitted by the planning covenant. It is apparent from the judgment that the Tribunal was not impressed with the objector’s objections, finding that they lacked evidential foundation and agreeing that grounds (a), (aa) and (c) were all made out.
When it came to exercising its discretion, the Tribunal considered the objector’s assertion that the build was cynical: “The respondent argues that the Tribunal should not discharge the planning covenant because of the applicant’s poor conduct. It says that Mr Henderson knew about the covenant all along and built in knowing breach of the covenant, cynically; and that the applicant deliberately concealed its acquisition of the land from the respondent in the hope of getting away with the breach of covenant.” The Tribunal noted the judgement of Lord Burrows in Alexander Devine Children’s Cancer Trust v Housing Solutions [2020] 1 WLR 4783 but ultimately found on the facts that the breach was not cynical as it was not dishonest, preferring instead to hold that the applicant was “a person who, for better or for worse, does not read things.”
Although the Tribunal ultimately discharged the covenant in Domus Living, the judgment makes clear that a “cynical breach” invites scrutiny and may influence the discretionary stage of the s.84 analysis. Where a cynical breach is asserted, careful evidence should be produced to address the point.
Which Practical Benefits Have been Attractive to the Tribunal?
In Domus Living, the benefiting land consisted almost entirely of woodland and open heath, and the Tribunal found no ongoing substantial advantage in enforcing a covenant tied to a historic enabling‑development scheme. This reflects a broader trend: covenants that once served a coherent estate‑wide purpose may lose their force as the estate evolves. However, the Tribunal’s approach has been markedly different where covenants underpin functioning communal living arrangements, even where the covenant is more than 30 years old.
In Bladon v Polls Yard MC Ltd the development at Polls Yard was a tightly‑knit four‑house courtyard scheme originating from a converted farmyard. A covenant prevented the houses from being used as anything other than a single dwelling, but the applicant wanted to convert his garage and barn into a fifth home. As with the cases discussed above, planning permission was in place and this was operative in the finding that the use was reasonable. However, in Bladon the Tribunal found that the covenant had a clear practical benefit as it secured “the established patterns of traffic and parking which have generally functioned smoothly since the development was first occupied” and helped avoid the other three households getting embroiled in the applicant’s attempt to alter the Articles of Association of the Management Company. Modification was therefore refused despite the existence of planning permission.
Implications
These recent cases suggest a landscape that is broadly favourable to developers but with clear limits. Planning permission remains a strong predictor of success and historic covenants tied to outdated estate structures are vulnerable. Yet where covenants preserve the character or functioning of a scheme, even an older one, the Tribunal is prepared to defend them robustly. Finally, as ever, developer conduct matters.
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
