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Mark Withers | 21st November 2019

Modifying historic covenants


Mark Withers | 21st November 2019

Modifying historic covenants

The question of modifying historic covenants (whether freehold or leasehold) has been addressed in blogs in recent months and years. They are an issue which constantly come to the fore.

Section 84 of the Law of Property Act 1925 can in some circumstances be used to modify historic covenants. This section is often applied in the context of restrictive covenants and may also be of use in the context of leasehold covenants.

The section can additionally be utilised where covenants contained in a Section 52 Agreement entered into on or before 25 October 1991 are concerned. Section 52 has now been replaced by Section 106 of the Town and Country Planning Act 1990 and Section 84 does not apply to Section 106 Agreements. Where however a Section 52 Agreement was entered into in order to procure the grant of planning permission prior to 1991, Section 84 may be of relevance.

The Section came into play in the recent land tribunal case concerning Payne v Maldon District Council. In that case, a Section 52 Agreement contained a covenant prohibiting the erection of “any permanent buildings or structures” on land where outline planning permission had been obtained for the construction of new housing.

The application was based on Ground (aa) that the covenant impeded the reasonable use of the land and didn’t secure practical benefit of substantial value or advantage to the local authority.

The Upper Tribunal concluded that Ground (aa) was established and modified the restriction contained within a Section 52 Agreement to permit the development to proceed. Interestingly, the covenant contained within a Section 52 Agreement wasn’t discharged completely.

With changing planning policies local authorities may on the one hand be prepared to grant planning permission but be reluctant to vary historic planning agreements. This Section may continue to be of relevant to future development sites.

If you wish to discuss any of the issues raised in this blog please contact me.



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