Can restrictive covenants stop developments after planning permission is granted? 

A recent Upper Tribunal decision, Butler v Flagship Housing Group [2026] UKUT 182 (LC), provides a timely reminder that obtaining planning permission does not remove private law constraints on land. Restrictive covenants can still prevent development from proceeding, even where a scheme has secured consent, particularly where those covenants are relatively recent and continue to provide meaningful benefits. 

This case highlights the importance of addressing title restrictions at an early stage of any transaction or development strategy. 

The facts  

The dispute arose from a site comprising a row of six lock-up garages purchased at auction in 2023. The transfer included restrictive covenants which, in essence: 

• prevented redevelopment of the site; and 

• limited its use to garage purposes only. 

Despite these restrictions, outline planning permission was later secured for the demolition of the garages and the construction of a bungalow. However, the covenants stood in the way of that scheme proceeding. 

The applicant, having subsequently taken ownership of the land from a company under his control, applied to the Upper Tribunal under section 84 of the Law of Property Act 1925 seeking to remove or alter the covenants. 

The legal framework  

Section 84 of the Law of Property Act 1925 provides a mechanism for the discharge or modification of restrictive covenants in certain circumstances. In this case, the application relied on two commonly used grounds: 

• that the covenants prevented a reasonable use of the land and no longer provided substantial practical benefit; and 

• that modifying them would not cause harm to those with the benefit of the covenants. 

It was not disputed that the proposed residential development constituted a reasonable use, particularly given the existence of planning permission. The key question for the Tribunal was whether the covenants still delivered real and practical advantages to the party entitled to enforce them. 

The Tribunal’s approach 

The Tribunal concluded that the covenants remained effective and valuable. In particular, it found that they: 

• played a role in the wider management of the estate; and 

• helped preserve the character and amenity of neighbouring properties, including reducing the risk of overlooking and increased disturbance. 

Because those benefits were considered both tangible and significant, the statutory grounds relied on were not made out. The Tribunal was also satisfied that removing or altering the covenants would adversely affect the benefiting party, meaning the “no injury” argument could not succeed. 

The application was therefore refused. 

The importance of recency and conduct 

A notable feature of the decision was the Tribunal’s emphasis on the timing and context in which the covenants were created. 

The restrictions had been imposed less than three years before the application, and formed part of a relatively recent transaction. The Tribunal placed weight on the fact that: 

• the applicant was closely connected to the original purchaser; and 

• the covenants had been accepted knowingly as part of a commercial bargain. 

The Tribunal indicated that, even if the statutory grounds had been made out, it would have been reluctant to exercise its discretion to grant relief in those circumstances. 

This reflects a broader principle: section 84 is not designed to provide an easy route to escape obligations that have been freely and recently assumed. 

Key takeaways 

From a practical perspective, the decision reinforces the following points: 

• Planning permission is not determinative 
  The grant of permission under the planning regime does not override private law rights. A development may be policy-compliant and consented but still incapable of being lawfully implemented. 

• Restrictive covenants remain highly effective 
  Where covenants continue to deliver tangible benefits, particularly in preserving amenity or estate management, they are likely to be upheld. 

• Recent covenants carry significant weight 
  The more recent the covenant, the harder it is likely to be to secure modification or discharge, especially where it formed part of a negotiated transaction. 

• Knowledge at acquisition is critical 
  Parties who acquire land subject to known restrictions (or through connected entities) will face greater difficulty persuading the Tribunal to intervene. 

• “No injury” arguments are difficult to sustain 
  If a covenant provides any real amenity or management benefit, it will be challenging to demonstrate that its removal would not cause harm. 

• Section 84 is not a fallback solution 
  Applications under section 84 are discretionary and fact-sensitive; they should not be relied upon as a routine mechanism to enable development. 

The Birketts view 

While the decision does not establish new law, it is consistent with established Upper Tribunal authority and provides some additional practical clarity.  

The decision in Butler v Flagship Housing Group reinforces a well-established but sometimes underestimated principle: restrictive covenants remain a powerful control on land use. Their impact should not be considered secondary to planning permission. 

For developers, investors and landowners, the message is clear – careful title analysis and proactive risk management are essential. Addressing covenant issues early can help avoid delay, cost and ultimately the risk of a scheme being unable to proceed at all. 

If you would like advice on restrictive covenants or section 84 applications, the Birketts Property Disputes team can provide strategic and commercially focused guidance.