Re Thomas Pocklington Trust Ltd’s Application

Land – Restrictive covenant – Modification – Section 84(1)(a), (aa) and (c) of Law of property Act 1925 – Appellant obtaining planning permission for development of site of former home for blind as 40 flats – Appellant applying to modify restrictions on land – Whether restrictions having practical benefits of substantial value or advantage – Whether restrictions obsolete – Whether injury to objectors – Application granted In 1960, the trustees of the applicant charity purchased 1.49 hectares of land at the junction of Eastbury Avenue and Watford Road, Northwood for £6,500 which was subject to certain restrictions. The appellant constructed Pocklington House on the acquired land which was designed to provide care and accommodation for up to 35 elderly residents with sight loss. The retained land was subsequently sold for redevelopment as residential dwellings. By 2012, the appellant had decided to close Pocklington House and sell the site, having concluded that it could no longer provide housing for visually impaired people efficiently or effectively. It aimed to use its assets to generate income for research into finding practical ways to improve the lives of people with sight loss and to improve public awareness of health issues affecting sight. In order to maximise the sale proceeds, the appellant obtained planning permission to construct 40 flats in three four-storey apartment blocks with associated underground parking on the land. The appellant applied to modify the restrictions on the land to enable the development to go ahead. The application was based primarily on section 84(1)(aa) of the Law of Property Act 1925 and also on grounds (a) and (c) of that section. The application was made under both limbs of section 84(1A) (the restrictions, in impeding a reasonable user, (a) did not secure to persons entitled to the benefit of them any practical benefits substantial value or advantage; and (b) were contrary to the public interest). Some nearby homeowners objected to the proposed modification arguing that it would be excessive and unsuitable. It would increase traffic, noise and pollution and damage the quiet enjoyment of their homes and change the character of the neighbourhood. They use of the site as a general care home would be more in the public interest than the proposed development and the restrictions were imposed on a disposition made gratuitously or for a nominal consideration for public purposes under section 84(7) of the 1925 Act. Most of the objectors claimed compensation in the event that the application was successful, calculated by reference to a possible diminution in the asserted capital value of their existing property plus the cost of moving to an equivalent property which would be necessary if the proposed development went ahead. Held: The application was granted. (1) The proposed development was a reasonable user of the application land which was impeded by the restrictions. By impeding the proposed development, those restrictions did not secure any substantial practical benefits to the objectors. The proposed blocks of flats would barely be visible from any of the objectors’ properties. The applicant had made concessions in the design of the residential blocks, reducing the height of one block and constructing an underground car park. The tribunal was not impressed with the suggestion that the appellant could build a larger care home for the visually impaired on the application land without breaching the restrictions. That was a bad point because it contradicted the evidence that such a care home would not in fact be built. The application land was a brownfield site previously developed by a substantial building. The western half of the site had been developed for over 56 years and the eastern half was, and would remain, wooded and was protected by a tree preservation order. (2) The objectors’ claims for compensation were wholly misconceived and unrealistic. An order modifying a restriction might direct the applicant to pay an objector such sum by way of consideration as it thought just to award, to make up for any loss or disadvantage suffered by that person in consequence of the modification. But the incidental costs arising from an objector’s decision to move if the application succeeded could not reasonably be considered a loss or disadvantage which was a consequence of the modification. In any event, there would be no loss in value to any of the objectors’ properties if the restrictions were modified to allow the proposed development.  The vendor had not disposed of the application land either gratuitously or for a nominal consideration. In 1960, £6,500 was not a nominal sum. Furthermore, the disposal was not for public purposes but for charitable purposes. In the absence of any expert valuation evidence, the objectors failed to show what the market value in the absence of the restrictions would have been; that there was any reduction in price in reality; what alternative (more valuable) use the land could have been put to in 1960; and who would be entitled to such consideration, since the original covenantee was the person who, it was alleged, received a reduced price because of the restrictions and whose retained land was now in multiple ownership. (3) The tribunal was satisfied that the application for modification of the restrictions should be allowed under the “limited benefit” sub-ground ((1A)(a)) of ground (aa) and that by impeding the proposed development (a reasonable user) the restrictions did not secure to the objectors any practical benefits of substantial value or advantage to them. The objectors would not suffer any loss or damage from the modification and no award of compensation would be made. It was appropriate to exercise the tribunal’s discretion and allow the application. It was therefore not necessary to consider further the application under the “public interest” sub-ground ((1A)(b)) of ground (aa) or ground (c). Andrew Francis (instructed by Russell-Cooke Solicitors) appeared for the applicant; the objectors appeared in person. Eileen O’Grady, barrister Click here to read transcript: Re Thomas Pocklington Trust Ltd’s Application