UK Upper Tribunal Declines To Discharge Restrictive Covenant On Developer's Conduct Grounds

Applicant's 'build first, apply later' approach viewed dimly, leading to a failed application despite satisfying usual discharge grounds

A recent decision of the Upper Tribunal in the case of Fosse Urban Projects Ltd v Whyte and others serves as a warning to developers to deal with restrictive covenants before developing land.

The decision marks a departure from the previous high-profile case and demonstrates that the Upper Tribunal will not be minded to exercise its discretion to discharge or modify a covenant and sanction a development where a developer has deliberately and knowingly breached a covenant solely for commercial reasons.

Background

Fosse Urban Projects Limited (the developer), obtained planning permission in July 2021 to build a house on land subject to a covenant which restricted it from being used "other than as a garden land" in connection with an "adjoining property".