Restrictive covenant – Application to discharge – Section 84(1)(a) of Law of Property Act 1925 – Covenant preventing use of land other than as maternity clinic – Clinic use ceasing owing to changes in means of health care provision – Whether covenant ceasing to be capable of achieving purpose – Whether obsolete – Application allowed
In 1938, the applicant’s predecessors in title, a district council, purchased land from the local parish council pursuant to an agreement. The agreement contained a restrictive covenant preventing the construction of any building on the land other than a maternity clinic or the use of such facility for any other purpose without the vendor’s consent. At the time the clinic was established, it provided a centre for the distribution of milk to new mothers and a point of contact with community-based midwives.
In later years, its use declined owing to changes in the way in which health services were provided. By 2005, the provision of maternal services at the clinic was confined to the distribution of baby food once a week, with an average of eight tins distributed per session. The applicant considered this to be a significant underuse of the property and accordingly closed the clinic, moving the distribution of baby food to a nearby health centre.
The applicant subsequently sought to sell the property. The objector, which owned a park to the rear of the clinic as successor to the parish council, placed a bid to purchase the clinic for use as a dental surgery. However, a religious organisation, which wanted to use the property as a church, submitted a higher bid. The applicant therefore sought to discharge the restrictive covenant. The objector withheld its consent, on the ground that the property should continue to benefit the community by providing medical services. The applicant applied, under section 84 of the Law of Property Act 1925, to the tribunal to discharge the covenant on the ground that it had become obsolete. It further disputed whether the covenant required by the 1938 agreement had ever been entered into and, if so, whether it touched and concerned the objector’s land so as to enable it to enforce that covenant.
Held: The application was allowed.
(1) Given the terms of the 1938 agreement, and the subsequent construction and use of the clinic, it was possible to infer that a covenant had been entered into as contemplated by that agreement. The objector, as successor in title of the vendor, was entitled to enforce the covenant. Although the main intention of the covenant was to maintain the maternity clinic, that did not obviate a secondary intention to benefit the vendor’s retained land. The covenant was capable of benefiting that land and could be said to touch and concern it such that the objector was entitled to the benefit of the covenant at common law.
(2) The covenant had achieved its purpose of ensuring that the building on the land was used as a maternity clinic until the need for that use had ceased. However, the original purpose of the covenant could no longer be served in any meaningful way following the changes in the provision of health care to expectant mothers and newborn babies. Prior to the closure of the clinic, none of the facets of maternity care that had formerly been carried out had persisted save the distribution of baby food, which was at such a low level as not to be viable. Since the only user specified by the covenant was that of a maternity clinic, and that purpose could no longer be achieved, the covenant was obsolete and should be discharged pursuant to section 84(1)(a) of the 1925 Act: Re Truman, Hanbury, Buxton Co’s Application [1956] 1 QB 261 and Re University of Westminster’s Application [1998] 3 All ER 1014; [1998] EGCS 118 applied.
William Moffett (instructed by Morgan Cole Solicitors, of Cardiff) appeared for the applicant; Keith Davies appeared for the objector with the permission of the tribunal.
Sally Dobson, barrister
