This case law update highlights two recent decisions that are particularly relevant to social housing providers and developers working on constrained or complex sites:

• Briant v Baldacchino (No 2), which considers how applications to modify or discharge restrictive covenants under Section 84 of the Law of Property Act 1925 are assessed in practice, and why uncertainty of intention can be fatal to an application.
• R (WildFish) v Buckinghamshire Council, where the Court of Appeal reinforced the importance of clarity and evidence when submitting reserved matters applications and seeking discharge of planning conditions.

Together, these cases underline consistent themes of clarity, certainty and proper sequencing. The courts are making clear that public benefit, including the delivery of affordable housing, does not remove the need for well‑prepared, well‑evidenced applications

Briant v Baldacchino (No 2) [2024] UKUT 00164 (LC)

Restrictive covenants and Section 84 applications: lessons for social housing providers

The Upper Tribunal’s decision in Briant v Baldacchino (No 2) [2024] UKUT 00164 (LC) is a useful reminder of how applications to modify or discharge restrictive covenants under Section 84 of the Law of Property Act 1925 are approached in practice and, just as importantly, how they can go wrong.

The case is particularly relevant for social housing providers and developers working on constrained, brownfield or previously developed sites where historic covenants can present real obstacles to delivery.

How the tribunal approaches Section 84 restrictive covenant applications

1. Planning permission really matters

One of the clearest messages from the tribunal is that planning consent is critical. While it is not technically a statutory requirement to have planning permission before making a Section 84 application, in practice an application without it is highly vulnerable to refusal.

The tribunal is reluctant to spend time assessing hypothetical schemes that may never lawfully proceed. Applicants should therefore assume that either full planning permission, or at the very least a strong and realistic planning position, will be needed before pursuing covenant modification.

2. The comparison is not “development versus nothing”

The tribunal will not assess the impact of a proposed scheme against a scenario where no development takes place. Instead, it looks at the maximum development allowed by the covenant itself.

In Briant, the covenant prevented “any further building”, but the tribunal treated restoration of the existing fire‑damaged building as the baseline. This is an important point where covenants restrict scale or density rather than prohibit development altogether.

3. You need a clear and settled proposal

Perhaps the most damaging aspect of Mr Briant’s application was his decision to put forward seven alternative schemes. Rather than showing flexibility, this undermined his case.

The tribunal took the view that this suggested uncertainty about what would actually be built and called into question the genuineness of the application. A Section 84 application is not an options appraisal exercise. The tribunal expects a single, well‑defined scheme supported by evidence.

4. Financial impact can be enough

Finally, the case confirms that the benefit of a restrictive covenant does not have to be physical. A measurable reduction in value of the benefitting land can be sufficient to amount to a benefit of substantial value, even where physical impacts differed between schemes.

What this decision means for social housing schemes

Many social housing schemes involve redevelopment, intensification or estate regeneration, often on land affected by historic covenants that were never drafted with modern housing needs in mind. Briant makes clear that Section 84 is not a quick fix for these constraints.

Applications need to be carefully sequenced, properly evidenced and aligned with the planning strategy from the outset. This is particularly important where schemes are subject to funding deadlines or grant conditions, as the time and cost of tribunal proceedings can be significant.

There is also a reputational dimension. The tribunal was openly critical of development that appeared to proceed in disregard of restrictive covenants. Social landlords are expected to act transparently, and failing to address covenant issues early can attract adverse scrutiny as well as legal risk.

Why Section 84 applications are not a negotiation process

One of the strongest takeaways from Briant v Baldacchino (No 2) is the tribunal’s firm rejection of the idea that Section 84 proceedings are a form of negotiation or consultation.

The tribunal made clear that it will not:

• choose between competing schemes;
• refine proposals; or
• help an applicant arrive at an acceptable solution.

Presenting multiple options simply invites the tribunal to do a job it will not do. Any engagement, compromise or design evolution should happen before an application is made, ideally through discussions with beneficiaries of the covenant, not during tribunal proceedings.

Overall, Briant v Baldacchino (No 2) is a helpful reminder that Section 84 applications are exceptional remedies, not development tools of convenience. For social housing providers and developers, success depends on spotting covenant risks early, aligning covenant strategy with planning, and presenting a single, clear and well‑justified scheme. Above all, the tribunal expects certainty of intention from applicant, not a menu of options.

What to check now if you are dealing with restrictive covenants

If you are progressing a redevelopment, regeneration or intensification scheme, this decision is a useful prompt to step back and sense‑check whether covenant issues have been fully addressed at the right stage, including:

• whether any land in your development pipeline is subject to historic restrictive covenants that could limit redevelopment or intensification;
• whether planning strategy and covenant strategy are properly aligned, rather than being treated as separate issues;
• whether you have a single, clearly defined scheme, supported by evidence, rather than multiple alternative options; or
• whether covenant risks are being identified early enough to avoid funding or reputational pressure later on.

In most cases, taking advice before a scheme is fixed will be more effective than trying to resolve issues once delivery is underway. Therefore, social housing providers and developers should conduct an early review of covenant constraints to help avoid delays and unnecessary costs.

R (WildFish) v Buckinghamshire Council [2026] EWCA Civ 283:

Reserved matters and discharge of planning conditions: Court of Appeal guidance for social housing providers

The Court of Appeal’s decision in R (WildFish) v Buckinghamshire Council [2026] EWCA Civ 283 is a helpful reminder that, when it comes to planning, clarity and consistency really matter.

While the case arose out of environmental concerns, the lessons are highly relevant for social housing providers and developers, particularly those working with outline permissions, reserved matters approvals and discharge of planning conditions.

At its centre, the case reinforces a simple point: the planning system expects applicants to be clear about what they are proposing and to properly evidence that proposal at every stage.

Why reserved matters approval and discharge of planning conditions are high‑risk stages

One of the strongest messages from WildFish is that applications to approve reserved matters or discharge planning conditions are not procedural formalities. Local planning authorities must be satisfied, on the evidence put before them, that what is being proposed genuinely complies with the original planning permission and the conditions attached to it.

For applicants, this translates into a few key practical considerations:

• Reserved matters must stay within the outline permission. Planning authorities are entitled to look closely at whether details such as layout, scale, access or landscaping materially change the impacts that were assessed at outline stage. If they do, refusal is a real possibility.
• Conditions need to be discharged properly, not strategically. Submitting an application that suggests how a condition might be complied with later is unlikely to be sufficient. Authorities are entitled to insist on evidence that the condition has actually been met.
• Environmental and mitigation conditions remain live throughout the process. Even if impacts were considered at outline stage, authorities may need to reassess whether mitigation is adequate when reserved matters are approved or conditions are discharged.

The Court of Appeal made clear that decision‑makers are not required to “connect the dots” between incomplete applications or assume that compliance will come later. The responsibility sits squarely with the applicant.

What this decision means for social housing schemes

Many social housing schemes rely on outline permissions, with reserved matters submitted in phases and often under funding or programme pressure. WildFish makes clear that the public benefit of delivering affordable housing does not relax planning discipline.

Registered providers should be particularly mindful of:

• Getting technical and environmental evidence in early.Treating these issues as something to be resolved later can expose schemes to delay or challenge.
• Keeping everything aligned. Planning applications, board approvals, funding assumptions and delivery programmes all need to tell the same story. Inconsistencies can undermine confidence in the scheme and create legal risk.
• Reputational considerations. As bodies exercising public functions, registered providers are more likely to be scrutinised if it appears that planning requirements are being approached lightly or tactically.

The takeaway is straightforward: social value does not excuse procedural weakness. Well‑prepared, well‑evidenced applications protect both delivery and reputation.

The risks of parallel and repeat planning applications

One of the most useful aspects of WildFish is what it says about the treatment of two planning applications relating to the same site or scheme.

The Court of Appeal confirmed that each application must be assessed on its own merits. However, planning authorities are also entitled to look critically at how applications interact. In particular:

• Parallel or overlapping applications cannot fix each other’s problems. An authority does not have to assume that shortcomings in one application will be resolved in another.
• Repeat applications need to be meaningfully different. If a later application simply re‑runs an earlier proposal without addressing the underlying concerns, the authority is entitled to reach the same outcome.
• Too much flexibility can backfire. Submitting multiple applications to preserve optionality can create uncertainty about what is actually proposed, undermining confidence in deliverability.

For both developers and social housing providers, this means that pursuing multiple applications should be a deliberate and carefully managed strategy, not a default approach.

In closing, R (WildFish) v Buckinghamshire Council reinforces a message many planning professionals will recognise – reserved matters and discharge of condition applications are critical decision points, not box‑ticking exercises.

For social housing providers and developers, the case underlines the importance of clear proposals and robust evidence, especially where multiple applications are in play. Getting this right early can make the difference between a smooth path to delivery and costly delay.

What to check now when relying on outline permissions

For schemes progressing under outline permission, this case highlights the importance of checking that detail, evidence and delivery strategy remain aligned as the project moves forward, in particular:

• Whether reserved matters proposals sit comfortably within the impacts assessed at outline stage.
• Whether planning conditions are genuinely capable of being discharged on the evidence submitted, rather than deferred to a later stage.
• Whether environmental and mitigation measures remain robust as the scheme evolves.
• Whether submitting parallel or repeat applications is creating uncertainty about what is actually proposed.

A unified review of outline permissions, reserved matters and conditions can reduce the risk of refusal, challenge or delay.

Overall summary: what these cases mean for social housing providers

Recent decisions such as Briant v Baldacchino (No 2) and R (WildFish) v Buckinghamshire Council show a clear judicial expectation of certainty, consistency and proper sequencing.

For social housing providers, these are not abstract legal points but practical delivery issues that can affect cost and timescales. Reviewing covenant constraints and planning strategy at the earliest opportunity can make the difference between a scheme progressing smoothly and becoming stalled at a critical stage.

Our affordable housing team supports social housing providers through the practical challenges of covenant risk and planning delivery. Whether you are working through a specific issue or want an early view on potential risks, our team of experts can help protect both the progress of your scheme, and your reputation.