Freehold land — Redevelopment — School site — Restrictions affecting use of land — Landowner wishing to sell land for housing — Landowner applying to discharge or modify restrictions — Whether restriction becoming obsolete — Whether continued existence impeding reasonable user — Application allowed in part
The applicant school was the freeholder of land that contained educational premises. A 1931 conveyance restricted the use of around six acres within a 55 acre estate that, at the time of the conveyance, was being developed for housing. More than half the land was developed in the 1980s, leaving a residue of 2.64 acres (the application land).
The applicant no longer required the application land for educational purposes and obtained planning permission to erect 44 two- and three-bedroom houses on it. The restrictions limited the way in which the land could be redeveloped for housing if it ceased to be used for educational purposes, inter alia, providing that only semi-detached dwelling-houses would be erected, each house fronting onto one of two named roadways and being set back at least 17ft from the road and each plot having a frontage of at least 28ft. In order to comply with those covenants, the development proposal would have had to have been limited to a density of eight houses per acre. Each house was also to cost at least £500 and be sold for at least £650 and constructed according to plans approved by the vendor, who had since died, or by his surveyor.
The applicant applied, under section 84 of the Law of Property Act 1925, to discharge or modify the restrictions on the ground that they ought to be deemed obsolete and that their continued existence would impede some reasonable user of the land, without securing practical benefits or would be contrary to the public interest. Seventy-eight residents objected but only two appeared at the hearing.
Held: The application was allowed in part.
The restrictive covenants were obsolete in part. The layout provided for by the restrictions could no longer be achieved on the entirely of the application land owing to the fact that development had already taken place on adjoining land.
It was not disputed that the restrictions as to cost and selling price had been rendered of no consequence as a result of inflation.
Furthermore, the covenant requiring plans to be approved by the vendor or his surveyor was clearly obsolete. The original owner’s death discharged the restriction rather than converting it into a restriction preventing any development since that would have frustrated the fundamental expectation of the parties that the land should be developed with houses as part of the estate after it had ceased to be required for school purposes: Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410; [2004] 2 EGLR 79; [2004] 24 EG 150 applied; Bell v Norman C Ashton Ltd (1956) 7 P&CR 359, In re Beechwood Homes Ltd’s application [1994] 2 EGLR 178; [1994] 28 EG 128 and Briggs v McCusker [1996] 2 EGLR 197 considered.
The owner of one of the adjoining houses would be adversely affected by the proposed development. Accordingly, he would be awarded £7,500 compensation for the disadvantage that he would suffer as a result of the discharge of part of the restrictive covenants: Re Kennet Properties’ application [1996] 2 EGLR 163; [1996] 45 EG 139 followed.
Joseph Harper QC (instructed by Finers Stephens Innocent LLP) appeared for the applicant; two objectors appeared in person and as representatives for other specified objectors; the remaining objectors did not appear and were not represented.
Eileen O’Grady, barrister
