It is a common misconception that once planning permission has been granted, development can proceed. In reality, restrictive covenants can still prevent building given where a local authority has approved the scheme.
A recent Upper Tribunal decision, Butler v Flagship Housing Group (2026), provides a helpful reminder of how difficult it can be to remove or modify restrictive covenants, even where development appears entirely reasonable.
What is a restrictive covenant?
A restrictive covenant is a legal obligation attached to land that limits how it can be used. For example, it might prohibit building, restrict use to a particular purpose, or require the consent of a previous owner before development.
These covenants are enforceable by those who benefit from them often neighbouring landowners or estate managers.
Can restrictive covenants be removed?
Yes,but only in limited circumstances.
Under section 84 of the Law of Property Act 1925, a landowner can apply to the Upper Tribunal to discharge or modify a restrictive covenant. However, the Tribunal will only grant such an application if specific legal grounds are met.
One of the most commonly relied upon grounds is that:
- the covenant prevents a reasonable use of the land; and
- it does not provide any practical benefit of substantial value to the person who benefits from it.
Even if that test is satisfied, the Tribunal still has a discretion whether or not to grant the application.
The facts of Butler v Flagship Housing
In this case a company purchased a site consisting of six lock-up garages in 2023.
The transfer included restrictive covenants preventing development and limiting the site’s use to garages.
The buyer later obtained outline planning permission to build a bungalow.
The site was transferred into the owner’s personal name, and he applied to remove or modify the covenants so the bungalow could be built.
At first glance, this might seem like a straightforward case for modification. After all, planning permission had been granted.
However, the application ultimately failed.
Why did the application fail?
The Tribunal identified several key reasons.
1. The covenant still provided real benefits
- Although the proposed development was accepted as a “reasonable use” of the land, that was not enough.
- The housing association that benefitted from the covenant argued that it protected the privacy and amenity of neighbouring properties on the estate. The Tribunal accepted that these were genuine and valuable benefits.
- As a result, the applicant could not establish the statutory grounds needed for modification.
2. Planning permission did not override the covenant
- A crucial takeaway is that planning permission and restrictive covenants operate independently.
- Planning permission may confirm that a development is acceptable in planning terms but it does not remove private legal rights such as restrictive covenants.
- This tension between planning and private rights is a recurring theme in section 84 cases.
- The covenants were very recent
3. Another important factor was timing.
- The restrictive covenants had only been entered into in 2023, and the application was made within a very short period afterwards. The Tribunal described this as effectively a “prompt” challenge to restrictions that had only just been agreed.
- Although this is not an absolute bar, it weighed heavily against the applicant.
4. The applicant was effectively the original covenantor
- Interestingly, the Tribunal also considered the fact that the applicant owned and controlled the company that had originally agreed to the covenants.
- In practical terms, the Tribunal treated him as being in the same position as the original covenantor. This made it more difficult to argue that the covenant should now be removed.
5. The planning permission was only outline
- Finally, the planning permission granted was only outline permission, meaning that key details such as layout and design were still to be approved.
- The Tribunal noted that it is often willing to modify covenants where there is a clear and detailed scheme. However, where significant details remain unresolved, it becomes much harder to tailor any modification to the development.
- This uncertainty was another reason not to exercise discretion in the applicant’s favour.
Key lessons for landowners and developers
This case highlights several practical points:
- Planning permission is not the end of the story
Even if consent has been granted, a restrictive covenant may still prevent development.
- Evidence of impact matters
The Tribunal will carefully assess whether the covenant provides real benefits to neighbours or estate owners.
- Timing can be critical
Seeking to remove a covenant shortly after agreeing to it is unlikely to be viewed favourably.
- Who agreed the covenant matters
If you or a company you control entered into the covenant, the Tribunal may treat you as bound by that covevant
- Detail matters in planning
Outline permission alone may not be enough to support a successful application to modify a covenant.
Conclusion
Applications under section 84 can be a powerful tool but they are far from straightforward. Each case is highly fact-specific, and even seemingly strong applications can fail.
The key message from Butler v Flagship Housing is clear:
restrictive covenants remain a significant and often decisive constraint on development, regardless of plan
How can we help?
Simon Waterfield is a Partner in our expert Dispute Resolution team, specialising in property disputes, rights of way claims, landlord and tenant disputes and commercial disputes. With over 30 years of experience, Simon Waterfield and his team are experts in resolving disputes between neighbours. Simon provides pragmatic and clear advice to achieve a resolution as cheaply and quickly as possible
For more information on the subjects discussed in this article, get in touch with Simon or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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