UK Construction and Law
Covenant modified so a garden plot can be built on, after a valuation report was given no weight at all
By Staff Writer | 16 August 2026
Planning permission for a house on garden land in Devon had sat unimplementable behind a 1970s covenant. The Upper Tribunal has modified it, awarded the objectors nothing, and refused to treat the applicant's earlier admitted breach as a bar. The valuation evidence filed in support was excluded for not being an expert report.
A permission that cannot be implemented is worth nothing, and the reason is often not planning at all. It is a restriction on the title that predates the permission by half a century and that nobody costed at acquisition.
The Upper Tribunal (Lands Chamber) removed one such obstruction on 11 August 2026, in Hughes Family Property Co Ltd v Marvin.
The land is a five sided plot of about 440 square metres, roughly 0.11 acres, forming part of the garden of a house in Dartmouth. Its surface stands between 2.5 and 8.5 metres above the road on the neighbouring estate, so a substantial retaining structure holds it up. The roadside boundary is a stone wall, with timber fencing elsewhere.
Conditional planning permission for a two storey house of 115.9 square metres was granted on 15 May 2023, on an application made that February. It cannot be implemented without breaching a covenant that burdens the land and benefits neighbouring houses built in the 1970s.
Jurisdiction, then discretion
The application was made under section 84(1)(aa) and (c) of the Law of Property Act 1925. Ground (aa) asks whether the restriction, in impeding the proposed use, secures to those entitled to its benefit any practical benefits of substantial value or advantage. None of the benefits the objectors relied on reached that standard. Ground (c), that the modification will not injure the persons entitled to the benefit, was also satisfied.
That gave jurisdiction, which is not the same as relief. The applicant admitted at the hearing that he had known, when he built an annexe in the garden of the existing house, that he was breaching the covenant, and had bought an insurance policy against the risk instead of dealing with it.
The tribunal held that the conduct may have had a pecuniary motive in part, but fell short of being egregious and unconscionable, and modified the covenant.
That is the settled position rather than an indulgence. Where jurisdiction is established, the discretion to refuse is exercised cautiously. The authorities also treat the identity and past conduct of the applicant as largely beside the point, because an assignee could bring the same application tomorrow.
The valuation report that never became expert evidence
The applicants had permission to rely on expert valuation evidence. What they filed was a report co-signed by two surveyors, with no letter of instruction, which on its face was a valuation of the covenant burdening the land rather than an expert report, and which concluded that the market value of the modification was nil. In the week before the hearing a three page supplemental statement arrived, written to address the tribunal's practice directions.
It was not written as an expert report and a three-page supplement submitted just before the hearing will not convert it into one. It is not compliant with the Tribunal's Practice Directions, and I therefore attach no weight to it.
Mark Higgin FRICS FIRRV, Member of the Upper Tribunal (Lands Chamber)
Neither of the two signatories was able to give oral evidence when the tribunal asked. The application succeeded anyway, on the tribunal's own assessment of the amenity evidence, but it succeeded without the report the applicants had paid for.
The objectors, who filed no valuation evidence of their own, sought sums between £10,000 and £50,000 in their formal notices of objection, without evidence in support. The applicants' advocate suggested that something in the range of £1,000 to £3,000 might be right for a slight loss of amenity.
Any loss of amenity will be so slight that it would be impossible to quantify its effect on the value of the Objectors' houses.
Mark Higgin FRICS FIRRV, Member of the Upper Tribunal (Lands Chamber)
No award was made. The order modifying the restriction inserts a proviso permitting the development authorised by the 2023 permission, together with any renewal of it, any approved non-material amendments and anything approved in satisfaction of its conditions, and takes effect once the applicant has signified acceptance within three months.
Two things follow for anyone assembling small sites out of existing gardens. A covenant that stops a permission being built out is not a dead letter and it is not immovable either, and the route through it is a statutory application rather than an indemnity policy, which buys silence and not permission. And evidence filed under a permission to call an expert has to be an expert report when it is filed. A valuation prepared for another purpose, dressed afterwards in a supplemental statement and unsupported by anyone who can attend, is not saved by its conclusion turning out to be right.