Re Martin’s Application (1989) 57 P & CR 119
LAND LAW – RESTRICTIVE COVENANTS – DISCHARGE – PLANNING PERMISSION – PRACTICAL BENEFIT
Facts
A local authority conveyed land to an individual containing a covenant requiring the purchaser to preserve the land as an open, undeveloped area. The purchaser acquired planning permission to develop the land in a manner which would breach the covenant.
Issues
S.84 of the Law of Property Act 1925 grants the Upper Tribunal the discretion to alter or completely discharge restrictive covenants in any of four circumstances. One such circumstance is where the continued existence of the covenant would impede some reasonable user and either is contrary to the public interest or does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them.
The issue in this case was the impact of the defendant’s planning permission on the court’s discretion to discharge or modify the covenant on this ground.
Decision/Outcome
The Court of Appeal held that the planning permission and restrictive covenant regimes are two separate entities which might be relevant to each other, but not necessarily.
This had two implications. Firstly, the existence of planning permission does not immunise the defendant from liability for breach of any restrictive covenant to which his land is bound. Secondly, the existence of planning permission is a relevant, but not decisive, factor to consider when determining whether the covenant’s existence is contrary to the public interest.
The Court of Appeal also noted that the definition of ‘practical benefit of substantial value’ did not require the benefit to be an economically-valuable asset. Particularly where the beneficiary of the covenant is a local council (and therefore mainly concerned with public interest), non-economic advantages like avoiding high-density developments can count as a relevant, sufficient practical benefit.
Updated 21 March 2026
This article accurately summarises the decision in Re Martin’s Application (1989) 57 P & CR 119 and the legal principles it established. The core principles remain good law. Section 84 of the Law of Property Act 1925 continues to govern the discharge and modification of restrictive covenants, and the jurisdiction under that provision now vests in the Upper Tribunal (Lands Chamber) rather than the Lands Tribunal, following the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009. The article correctly describes the tribunal as the ‘Upper Tribunal’, so no correction is needed on that point. The principle that planning permission and restrictive covenants operate as separate regimes, and that the grant of planning permission is a relevant but not decisive factor when considering the public interest ground under s.84(1)(b), remains settled law and has been applied in subsequent Upper Tribunal decisions. The approach to ‘practical benefit of substantial value’ under s.84(1)(aa) is also consistent with subsequent authority, including Re Lloyds and Lloyd’s Application and later Lands Chamber decisions. No statutory amendments to s.84 have materially altered the position described. Readers should note that the article omits mention of s.84(1)(a) (obsoleteness) and s.84(1)(c) (consent), but this is not an inaccuracy — the article focuses only on the grounds relevant to the case. Overall, the article remains a reliable summary of the legal position.
