A combine harvests a cereal crop

Ruling on discharge of restrictive covenants

It is reported by PLC today that in Re Brainshaugh House [2012] UKUT 112 (LC), the Upper Tribunal (Lands Chamber) granted an application to discharge restrictive covenants over Brainshaugh House. Brainshaugh House formed part of Sir Anthony Milburn’s estate, until he sold it to the Coombes in 2002. The transfer imposed several restrictive covenants for the benefit of Sir Anthony, his family and descendants but not further.

Sir Anthony disposed of the majority of the remainder of his estate in 2008. The Coombes wanted to refurbish and redevelop, and applied to the tribunal to have the covenants discharged or modified.

A covenant is obsolete where it is no longer possible for it to serve its original purpose, by reason of changes in the character of the property, or the neighbourhood, or other circumstances of the case which the tribunal may deem material.

The tribunal found that the sale of the majority of the estate to a third party, who was not entitled to the benefit of the covenants, was a material change of circumstances. The original purpose of the covenants (to benefit the retained estate) could not be served with only a small part being retained by Sir Anthony. Only one of the covenants was retained, in a modified form.