The Barn That Broke the Covenant: Duncan Grossart v Vikki Ames

Can a restrictive covenant really stop development forever?

 In this episode, Richard and Lizzie unpack the Upper Tribunal decision in Duncan Grossart v Vikki Ames [2026] UKUT 139 (LC), a fascinating case involving a Surrey farm, a barn development, and an attempt to remove a restrictive covenant under section 84 of the Law of Property Act 1925.

The land had previously been refused planning permission for a substantial residential scheme, but changing circumstances in the surrounding area, including a nearby 132-home development, dramatically shifted the legal landscape. The Tribunal ultimately concluded that the covenant had become obsolete and no longer provided any practical benefit of substantial value to the neighbouring Grade II listed property.

Richard explores what this means for developers, landowners, investors and property owners, including:
•when restrictive covenants can be discharged or modified; 
•how tribunals assess whether a covenant is “obsolete”; 
•the interaction between planning change and private land rights; 
•the importance of demonstrating practical benefit; and 
•why neighbouring owners cannot always rely on historic restrictions to block development. 

If you deal with strategic land, regeneration, development risk or contentious property issues, this is a case worth understanding.

Relevant cases:
Sutton v Baines [2022] UKUT 342 (LC)
Fosse Urban Projects Ltd v Whyte & Ors [2023]UKUT 286 (LC) 

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Transcript

Lizzie Collin
Restrictive covenants have a habit of resurfacing decades later just when somebody wants to build something new. What happens when the world around the land has completely changed? In today's episode, we're looking at an interesting upper tribunal decision involving a farm in Surrey, a barn development, and a restrictive covenant that ultimately couldn't survive. The case is Duncan Grossart and Vicky Ames, and it's a useful reminder that restrictive covenants are not untouchable. We'll look at when a covenant can become obsolete, how the tribunal approaches Section 84 applications, and why the existence of a nearby 132 home scheme ended up being hugely significant. So, whether you're a developer, landowner, local authority or property lawyer, this is a really useful insight into how historic land restrictions can start to unravel when the character of an area changes. Hello Richard.

Richard Snape
Hello again Lizzie.

Lizzie Collin
Hello. We are back for another News Flash episode. As you've just said offline to me, we're getting all of the Easter, post-Easter catch up now. So this one's from the 21st of April and the case is called, speculation as to how to pronounce this, but this is our best attempt, which is Duncan Grossart and Vicky Ames and it's from the Lands Chamber of the Upper Tribunal. It's all about discharging and modifying restrictive covenants under Section 84 of the Law of Property Act 1925. So yeah, do you want to start off with this one, giving us some background?

Richard Snape
Yeah, I think it should be Grassar, I think, a nice kind of French pronunciation myself. But I really don't know, we don't have to mention him again. But it was originally it was a farm. I mean, it involved a farm in in Hazelmere in Surrey, if you know Hazelmere. Do you?

Lizzie Collin
Not really, no. I was just being supportive by nodding.

Richard Snape
Oh, right, just nodding. People can't see it on the podcast anyway. But it's concerned a barn in the farm. The farm itself had been sold off in 1996. and a developer, a local developer in Dorking, Martin Grant Homes Limited, unsuccessfully applied for planning permission on this farm in 1996 for 300 residential units, but they failed. But they transferred 3 barns, barn conversions basically, and the original farmhouse was retained. by the original owners. It was a grade 2 listed 18th century farmhouse with grounds. But the three barn conversions were sold off. One was to an individual. There's a lot of changing of names and changing of sales and purchases in this case, which I'll try and cut down on. But one of the properties was sold on a Sturt farm barn, which eventually got into the hands of potential developers. And the other two were sold to the same person, the Stevensons or Mr. and Mrs. Stevenson. They had covenants in them, restrictive covenants, that you couldn't use other as a private dwelling in one residential occupation. And this would be binding on the current sort of people subject to the covenants and their successors. And so all the three barns had those. together with, they were allowed to build a garage and outbuildings as well. What then happened is that, well, the then owners of the farm had the benefit of this. And in 2003, in October 2003, Mrs. Ames purchased the farm and with that, the benefit of the covenants. What had happened subsequently, as I said, there was a series of sales of the property. When Ames purchased the farm, the seller, the farmhouse, I should say, the seller had a Mr. Webo, they have names I cannot pronounce in this case, Webo, but they retained the access way. So she bought the farmhouse with the word of the covenants and he retained the access way. In 2015, the then owners of the farmland got planning permission. It was originally for 135 residential units. It was eventually varied to 132. This is from the local authority, which are Waverley District, sorry, Waverley Borough Council. They had problems with access and had to sort of negotiate with Mrs. Barnes. And Mrs. Barnes, amongst other things, agreed to released the restrictive covenants against single private dwelling for two of the barns, but not for the third for Sturt Farm Barn. That wasn't up for negotiation. But she agreed to release it, the covenants and the benefit of the covenants, in favour of if she was given 45,000 pounds or alternatively, whichever she wished, a bit of extra land and a new garage for herself. We got planning permission in 2015 and then built finally, I think they varied the planning permission, 132 houses in 2021, somewhere called Grasslands Close. And at a later stage, basically Grassar wants to discharge the covenants on Sturt Farm Barn against single private dwelling. They wanted to build 6 houses, additional houses on this land that was the barn. Eventually they failed in the planning permission for that, but eventually they got planning permission for five houses subject to things like landscaping. So they would not be seen fully from the farmhouse. But Mrs. Ames objects to this. They make an application under Section 84 of the Law Property Act to get the covenants modified or discharged and she objects. I don't think it did her many favours that she'd already agreed in return for money to discharge, or at least I should say the covenants in relation to the other two bonds.

Lizzie Collin
Can you just remind us what Section 84 actually says and what the objections were?

Richard Snape
Yeah, there's lots of cases on Section 84. There's basically, if it's a covenant against use, a restrictive covenant or against building, Section 84 allows four different grounds in which you can basically apply to modify or discharge the covenants. Three of them were argued in this case. Firstly, section 84 1A, that the covenants were obsolete. And they wanted the covenants discharged because they were obsolete. And it was held basically that they were obsolete, you know, the refusal of planning permission for 300 houses originally. was 29 years previously. There's 132 houses nearby. It's not some rural Italy. It's next to a housing estate on the edge of Hazelmere. They actually decided the covenant should be discharged in that circumstance, not just modified, but also section 84.1 AA, which you read in conjunction with section 84.1 capital A, which is basically where the covenants impede visa. use of the land and they serve no practical benefit of substantial value or advantage in a contrary to public interest. She tried to argue things like she was on low land and housing nearby more housing would cause flooding and she tried to argue that you know there'd be additional people driving down this access rd and when the 132 houses had been built noise of the lorries that caused structural damage to her 18th century farm house. She failed on that. The amount of additional, having five additional houses, the additional traffic was nothing in comparison with the 132 houses in the state. And condition of the planning permission is you have to build in water attenuation systems and the likes to stop flooding. Doesn't always work, but so that didn't succeed. She wanted to modify the covenants there. And the third one is 84 1C. Oh, you're also supposed to take into account for 84 1AA things like the development plan and any declared or ascertainable pattern of granting or refusing planning permission and whether compensation would sort of adequately kind of sort of cover her sort of the discharge of the covenants would be satisfied. And C is that there's no injury and they decided that there was no injury to her. And the covenants were discharged and she got zero compensation.

Lizzie Collin
There you go.

Richard Snape
Yeah.

Lizzie Collin
So what's the conclusion on this one?

Richard Snape
It's a good reminder. There's so many cases. I didn't actually quote, they didn't actually quote any cases in the report, but they had site inspections and the likes and to see what would, what would happen to the view and so on. I don't think she did herself any favours by accepting sort of the offer of money to discharge the covenants on the other two barns. And But it's a good reminder that, they were told there's a shortage of housing, especially in places like Hazlemere. And if you bide your time and you're sensible about it, the covenants, you might just be able to discharge the covenants and make a lot of money for yourself. Little tips, I remember there was a case in 2022, we didn't actually do a podcast on it called Sutton and Baines in Derby. where they wanted the covenants against anything other than a single dwelling discharge completely, which would allow anything that you can get planning permission for in the court, basically, or the tribunal, I should say, basically decided you were being too greedy. You should have just had the covenants modified, you know, you can build 2, you know, other than two dwellings. And also you have to be sensible right the way you sort of, you know, negotiate and the likes. Another case we did was, do you remember Fosser and Projects and White in 2023?

Lizzie Collin
Well, I'm not sure I can remember that far back.

Richard Snape
It was following on from Alexander Devine Housing Solutions, which was the first ever Supreme Court case on Section 84, where you just ignore any correspondence and ignore the, you know, complaints of the neighbours and build anyway. and then applied to have the covenants discharged under section 84 and they built the house already. They were actually living in this house they built in Wyndham in Norfolk. And the court decided to refuse to discharge the covenants because of your behaviour. So that's another thing to take into account, but it's yet another case on discharging restrictive covenants. I think it was useful as well that the covenants were the original sort of covenants were from 1996 and the, original planning applications refusing 300 houses had failed in 1996. It's a good, it's a good illustration.

Lizzie Collin
Well, there we go. Thank you very much, Richard.

Richard Snape
My pleasure, as usual, Lizzie, and we are.