Restrictive Covenants: Edgware Road (2015) Ltd v The Church Commissioners for England [2020] UKUT 104 (LC)

09.04.2020

The Upper Tribunal has handed down its judgment in Edgware Road (2015) Ltd v The Church Commissioners for England [2020] UKUT 104 (LC). This was an application under s.84 of the Law of Property Act 1925 for the modification or discharge of covenants in a long lease of an office building so as to permit its conversion into a 117-bedroom ‘pod-type’ hotel.

Following the decision in Shaviram Normandy Ltd v Basingstoke and Deane BC [2019] UKUT 256 (LC), the case confirms that applications to modify leasehold covenants are not to be treated by the Upper Tribunal any differently to freehold titles. In principle, it should not be more difficult for an application to discharge the burden of proof in a leasehold case.

The application in this case was made under grounds (aa) and (c). On the facts, the Upper Tribunal concluded that the restrictive covenants in this case, in impeding the proposed user of the subject premises as a hotel, secured to the Church Commissioners (who object to the application) a practical benefit of substantial advantage. The advantage in question was the Commissioners’ ability to manage the Hyde Park Estate (of which the subject premises formed part) in accordance with their own ‘estate control strategy.’

Nicholas Trompeter (led by Guy Fetherstonhaugh Q.C.) acted for the applicant.

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