An application to modify a restrictive covenant under section 84 of the Law of Property Act 1925 has been refused by the Upper Tribunal (UT) as it continues to deliver practical benefits to neighbouring property owners.
Farrell v Garforth-Bles and Anor [2025] UKUT 00429 (LC) concerned the ground floor of a detached two‑storey property in Fulham, which had been vacant since 2023 following its previous use as an estate agency office. A restrictive covenant imposed in 1983 for the benefit of the neighbouring mansion block limited the ground floor premises to use as professional offices.
The applicant applied to the UT for modification of this covenant under section 84 of the Law of Property Act 1925 to allow a wider range of uses falling within Class E of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. The applicant expressly excluded certain Class E uses which he considered might generate significant noise or nuisance for neighbouring residents in an attempt to continue to look after the interests of those who the original covenant had been designed to protect. However, he proposed that the sale of hot and cold non-alcoholic beverages and of sandwiches or similar types of food should be permitted between the hours of 8am and 7pm.
The modification was objected to by the residents of the mansion block with the benefit of the covenant, on the basis that the use of the premises for a coffee shop or café would result in an increase in noise and disturbance and a decrease in privacy for the residents.
The case is an interesting one for the careful analysis made of grounds of the application, and the key importance of the site visit, allowing the UT to view the property's garden.
The UT accepted that in the context of a busy mixed-use road such as Fulham Palace Road, one more coffee shop was unlikely to cause significant extra traffic or noise in general, and had the property consisted only of the ground floor space and a potential seating area on the road frontage, it seems likely, reading the judgment, that the modification would have been granted.
However, the property had a shady and pleasant garden, and on visiting it, the UT found: "The garden would be an attractive proposition for users of the Property, it is shady and removed from the hubbub and traffic of Fulham Palace Road. It is not difficult to envisage that it would be a popular place for meeting friends or family. It would accommodate, by my reckoning, in excess of thirty customers."
In addition to this, the UT noted that the property had a right of way over the communal gardens of the adjacent mansion block in order to access its rear garden. The UT acknowledged that this could be used by coffee shop customers who would then have access to the courtyards and sheds within the grounds of the mansion block.
These considerations appear to have been key to the UT's ultimate decision that the covenant did protect the residents of the mansion block from nuisance, lack of privacy and security concerns and did therefore "provide a practical benefit of substantial value or advantage".
Applications under section 84 of the Law of Property Act 1925 can be hard to predict as they generally turn on the exact facts. We would always recommend expert advice in such matters, careful consideration as to whether the covenant does continue to give a real, practical advantage to beneficiaries and that any proposed modification is worded clearly and concisely.
