A recent s84 of the Law of Property Act 1925 application in the Upper Tribunal successfully modified a planning restriction on the ground that it did not secure any practical benefit of "substantial value or advantage". The restriction was contained in a s52 agreement from 1984. It prevented the building of "any permanent buildings or structures" on the land in question. Section 52 of the Town and Country Planning Act (TCPA) 1971 has now been repealed and replaced by s106 of TCPA 1990. The Upper Tribunal held that it had jurisdiction to modify and discharge planning restrictions entered into on or before 25 October 1991 under s52 of the old 1971 legislation. Applications can only be made to modify or discharge restrictions (not positive obligations) and the Upper Tribunal made it clear it did not have jurisdiction to modify restrictions imposed in planning agreements entered later under s106 TCPA 1990. The case does illustrate, that there are circumstances where an application to the Upper Tribunal can successfully be made to challenge restrictions imposed under planning agreements.
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