For information on what they are and how they work, see my blog post from May 2021 before that Act was passed here: Part 1 and Part 2. Part 2 of that blog post summarises the provisions for liberty to apply to discharge/modify (under what is now s.130 of and Schedule 18 to the EA 2021) or for a declaration about (under what is now s.135 of the EA 2021) an obligation under a CC, both of which are further covered in this blog post.

To accompany the coming into force of Part 7 of the EA 2021, the Tribunal Procedure (Amendment No. 2) Rules 2022/1030 were made, coming into force on 1 November 2022. These Rules have amended the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010/2600 (“Rules”) by amending Rule 1 and inserting a new Part 6A therein. Defra has also drafted some new guidance. However, as yet, the Upper Tribunal (Lands Chamber) (“UTLC”) Practice Direction has not been updated and there is no form for an application under ss.130 or 135 of the EA 2021 or for a notice of objection in response (see below). 

The amendment to Rule 1 widens, for the purposes of the Rules as a whole, the definition of ‘applicant’ and ‘objector’ (and therefore also ‘party’) to include the parties in an application under s.130 and s.135 of the EA 2021.

Part 6A (Rules 39A-39D) contains rules governing an application under ss.130 or 135 of the EA 2021 to the UTLC. They therefore do not govern where an interested person alternatively chooses to apply under s.135 of the EA 2021 to the High Court or county court for a declaration.

Rule 39A contains some relevant definitions for Part 6A. 

Rule 39B provides that a written and signed application under s.130 or s.135 of the EA 2021 must, when filed at the UTLC (which subsequently effects service itself), state/be accompanied by inter alia:

• details of the application land: address/description together with a plan;
• whether the applicant is a landowner or responsible body, and if the former what is their interest in the application land;
• the obligation under the CC to which the application relates (together with the name and address of anyone bound by it) and a copy of the CC agreement which contains that CC;
• the fee payable (note the UTLC’s table of fees has not yet been updated to account for these applications, but as a guide the fee for an application to discharge or modify an ‘ordinary’ restrictive covenant is £880);
• for an application under s.130, details of the discharge or modification sought, and details of the (non-exhaustive) matters in paras 3 or 9 of Schedule 18 to the EA 2021 on which the applicant relies for why it is reasonable to discharge/modify in all the circumstances of the case. Those matters are wide ranging and include whether there has been a material change of circumstance since the making of the CC agreement containing the relevant obligation
• for an application under s.135, details of the declaration sought with reasons;

Rule 39C deals with responding to an application made under Rule 39B. The objector (i.e. the respondent who will generally be the beneficiary of the obligation which is sought to be discharged/modified) must, within 1 month of receiving the application from the UTLC, have filed with the UTLC and sent to the applicant a written, signed notice of objection containing inter alia: any ground of objection (which in the case of an application under s.130 should be directed primarily at the matters in paras 3 or 9 of Schedule 18 to the EA 2021), any claim for compensation if the obligation were to be discharged/modified (paras 4 and 10 of Schedule 18 to the EA 2021 and also see Rule 39D), and whether the objector wants the case to be determined at a hearing. 

Having received the notice of objection, the UTLC will then give such case management directions as it considers appropriate (Rule 39C(3)).

Charles Forrest is a barrister at Francis Taylor Building.