A case which flew a little under the radar this summer in the legal press (although not in the mainstream where it made the Daily Mail on no less than five occasions) was the case of  The Ridgeway (Oxshott) Management Ltd v McGuinness & Anor [2023] .  

The case contained some interesting discussion on the Tribunal’s jurisdictional limitations, and in doing so exposed a potential way to circumvent the powers of the Upper Tribunal and reinforce control over the use of land. 

The potted background is that the Ridgeway is an estate in Oxshott. The Ridgeway (Oxshott) Management Limited (“ROML”) are the resident’s management company who own the estate roads and verges. Mr and Mrs McGuinness are residents on the estate who obtained a planning permission to knock down their home and replace it with two houses. Cue proceedings by ROML seeking an injunction to restrain the McGuinnesses on the basis of a restriction contained in an easement limiting the use of the estate roads:

“for the sole purpose of access to and egress from the Property in connection with its use as a single private dwelling house”.

Whilst section 84 of the Law of Property Act 1925 allows a party to apply to the Upper Tribunal to modify or discharge restrictive covenants, the jurisdiction only extends to:

“any restriction arising under covenant or otherwise as to the user thereof or the building thereon". 

The ‘otherwise’ does not however extend to restrictions contained in an easement, which the McGuinnesses argued was abusive as it gave the effect of a covenant but without the statutory rights afforded under section 84 to modify or discharge the same. They contended (as one of their defences) that the restriction was therefore void or unenforceable for public policy reasons.  

It is certainly correct that despite proposed reforms to extend the jurisdiction to allow the Tribunal to deal with easements, these have not yet come to pass, and judicial comment remains for the time clear that easements are not covered. For this (and other cogent reasons) the Court in this case had little truck with the Defendant’s position, as detailed in the Judgment. 

However, this does pose an interesting question; can parties use restrictions in easements to circumvent the jurisdiction of section 84? In this case the Court noted that the restriction had not been contrived to have this effect, which seemed to infer that had it been, a different approach might have been taken. It is not clear though that this (aside from those situations arising such as in in O'Byrne [2018] UKUT 395 (LC) & Hotchkin v McDonald [2004] EWCA Civ 219) in fact closes this off, it does seem that restrictions within easements remain an option to parties seeking another means of restricting the use of land and thereby to game section 84…