13 April 2026
Blocking reasonable use: the limits of restrictive covenants
Section 84 of the Law of Property Act 1925 gives the Upper Tribunal (Lands Chamber) power to discharge or modify restrictive covenants affecting land in certain circumstances. In particular, section 84(1)(a) permits modification where a restriction has become obsolete, and section 84(1)(aa) applies where a restriction impedes a reasonable use of land without securing any practical benefit of substantial value to those entitled to enforce it.
However, this power is subject to an important limitation in section 84(7), which provides that the Tribunal cannot act where a restriction was imposed on a disposition made gratuitously or for nominal consideration for public purposes.
These provisions were considered in Newton Poppleford and Harpford Parish Council v Preston and another, which concerned whether a restrictive covenant could be modified to allow a disused doctors’ surgery to be put to alternative health-related uses.
In 1983, a small parcel of land in the village of Newton Poppleford, Devon was gifted to the applicant parish council for use as a doctors’ surgery. The council built the surgery, which served the community for nearly forty years.
In 2022, the medical practice vacated the building and no replacement doctor had been found. The parish council wished to retain the building for the benefit of the village by allowing other medical or health-related services to operate from it.
However, the land was subject to a restrictive covenant limiting its use strictly to a doctors’ surgery. This prevented any alternative use.
The council therefore applied to modify the covenant to permit use “for any other medical or health service.” The owners of neighbouring land objected to the application.
The case raised three key issues:
1. Section 84(7): Was the Transfer Gratuitous?
The objectors argued that the original 1983 transfer fell within section 84(7). This meant that if it had been made gratuitously or for nominal consideration, the tribunal had no power to modify the covenant.
Although no money was paid for the land, the parish council had undertaken significant positive obligations, including the construction of the surgery within a specified timeframe and other commitments involving expenditure.
The Tribunal drew a distinction between:
- negative obligations (which do not prevent a transfer from being gratuitous), and
- positive obligations requiring expenditure (which do).
Because the council had assumed substantial positive obligations, the transfer was not gratuitous. Section 84(7) therefore did not apply, and the Tribunal had jurisdiction to consider modification.
2. Was the restriction obsolete?
The parish council argued that the restriction had become obsolete because no doctor could be found to use the building.
The Tribunal rejected this argument. A restriction does not become obsolete simply because it is inconvenient or because demand for the permitted use has declined. Obsolescence requires that the restriction no longer serves any practical purpose or that its original purpose has become impossible to achieve.
3. Reasonable use and practical benefit
The Tribunal then considered section 84(1)(aa). There was no dispute that the proposed use (alternative medical or health services) was reasonable. The covenant, however, prevented such use unless it was strictly part of a functioning doctors’ surgery. The Tribunal found that the restriction impeded this reasonable use while conferring no practical benefit on the objectors.
The Tribunal was persuaded that it should exercise its jurisdiction to modify the restriction.
In doing so, it took into account that:
- the building was lying unused and could not be used without modification;
- the building was an expense to the applicant and provided no benefit to the village;
- no harm would come to the objectors as a result; and
- refusal would likely lead to waste and eventual dereliction.
The Tribunal would make the modification sought without requiring payment of compensation.
For landowners and practitioners, the case demonstrates the Tribunal’s willingness to take a pragmatic approach where a “very modest change to the original bargain” is sought and highlights the need for careful consideration of the long-term implications of use restrictions, particularly where land is transferred for community or public purposes.
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Manusri Prabhakar
Trainee
Co-authors
Rosalind Cullis
Partner, Real Estate Disputes
