Restrictive covenant – Modification – Section 84(1)(aa) of Law of Property Act 1925 – Covenant restricting use of land to use as private dwelling-house or professional practice – Restriction benefiting adjoining or adjacent land of city council – Applicants seeking modification of restriction to permit use as mosque and madrasah – Whether council entitled to enforce covenant as custodian of public interest as well as in capacity of adjacent landowner – Whether restriction securing practical benefits of substantial value or advantage – Application allowed
The applicants acquired the freehold of a property in Birmingham with a view to using it as a mosque (masjid) and madrasah school. That use of the property was prohibited by a restrictive covenant, imposed by a 1967 conveyance from the city council and subsequently varied by deed in 2000, limiting the use of the premises to a private dwelling-house or for the practice of a medical practitioner, dentist, solicitor or other professional person. The covenant was given for the benefit of so much of the council’s “adjoining or adjacent land… as is capable of being benefited thereby”. Nearby properties owned by the council included a community centre, a common and a terraced house let to a tenant, which were immediately adjacent to the applicants’ property, plus various other residential properties in the nearby streets. Although the council, as local planning authority, indicated in 2009 that planning permission was not required for the applicants’ proposed change of use of their property, they subsequently refused a request for variation of the covenant to permit that use.
The applicants none the less proceeded to use the premises as a mosque and madrasah. The council’s claim for an injunction to stop that use was stayed pending an application by the applicants, under section 84(1) of the Law of Property Act 1925, to modify the restriction to permit their use of the premises. The applicants relied primarily on the ground in section 84(1)(aa) of the 1925 Act, namely that the restriction impeded a reasonable use of the land and did not secure to the council any practical benefits of substantial value or advantage. They gave evidence that the mosque was needed to cater for the large number of Muslim residents in the area and that their property was the only suitable and available building in the locality.
The council contended that they were entitled to enforce the covenant not only in their own capacity but as custodians of the public interest. They gave evidence that the use of the premises created traffic and parking problems and had given rise to concern in the local community, with complaints received about noise coming from the property late at night and early in the morning. However, the applicants contended that the purpose of the restriction was not to protect the public interest but to benefit the council’s adjoining and adjacent land, which was unaffected by the use of the applicants’ property.
Held: The application was allowed.
(1) It was possible for local authorities to have the benefit of a restrictive covenant solely as the owners of the land to which it was annexed: Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278. The covenant in the 1967 conveyance had been varied in 2000 for the benefit of the council’s adjoining and adjacent land and not for reasons associated with the general or local public interest. The benefit of the covenant was not expressed by reference to an area of land defined on a plan or a named and identifiable estate; instead, the covenant benefited the council’s adjoining and adjacent land. The mere fact that the council retained extensive ownership of property in the vicinity of the applicants’ land was not sufficient to endow their objection with the status of having been made by a custodian of the public interest. The covenant was imposed by the council as landowner and the council’s objection should consequently be considered in terms of the land that was specified as having the benefit of the covenant, namely their adjoining and adjacent land: Re Martins’ application (1988) 57 P&CR 119; [1989] 1 EGLR 193; [1988] 3 PLR 45 and Re Houdret & Co Ltd’s Application (1989) 58 P&CR 310 distinguished.
The expression “adjacent”, in the context of the covenant, required a degree of proximity that was limited to those properties that were capable of benefiting from the restriction. That did not include properties in the locality or neighbourhood generally: Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch 430 applied. The council owned four properties that adjoined the applicants’ land, in the sense of being physically contiguous with it, namely the common, a grass verge lying between two service roads, the terraced house and the community centre. The council’s main concern was the extent of on-street parking that occurred when the car park on the applicants land was full. There were an additional 25 council-owned properties in the surrounding streets that were affected by on-street parking and should also be regarded as adjacent land with the benefit of the covenant.
(2) The restriction impeded a reasonable use of the applicants’ land. The applicants’ use was in accordance with local planning policy. The fact that that use might be unpopular, with considerable local opposition, did not mean that it was unreasonable. As to whether the restriction, by impeding that use, secured practical benefits to the objector, that question fell to be answered by reference to the effect of the proposed use on the council’s adjoining and adjacent land and not by considerations of public interest. The restriction did secure practical benefits to the council in respect of at least some of its adjoining and adjacent properties, by preventing the parking of additional cars on-street during the periods when the property was in use as a mosque and madrasah, avoiding the intensification of traffic movements associated with daily prayers and preventing any noise being made by people leaving the mosque. However, those practical benefits were not of substantial value or advantage. On the evidence, there was sufficient car parking available both off-street and on-street at and in the vicinity of the applicants’ land. Regarding the issue of noise, there was no specific evidence that any of the occupiers of the adjoining or adjacent properties of the council, which had the benefit of the covenant, had complained about noise. The ground for modification in section 84(1)(aa) was accordingly made out.
(3) It was not appropriate for the tribunal to exercise its discretion to refuse modification on the grounds of the applicants’ wilful breach of the covenant. That conduct was mitigated by two factors: (i) the applicants were charitable trustees using the property in order to satisfy what they saw as an urgent requirement for a place of religious worship; and (ii) in the absence of legal advice to the contrary, they had made the common mistake of assuming that the existence of planning permission for the proposed use would eventually be determinative of the outcome of a request to modify the restrictive covenant, that mistake being compounded by the fact that the planning authority and the beneficiary of the covenant were the same person. The covenants would be modified to allow the specific use of the property as a mosque and madrasah; however, conditions would be imposed, under section 84(1C), to the effect that the applicants’ land should not be used for a call to prayer that was audible outside of the building located on that land and that those parts of the land that were presently used for car parking should not be used for any other purpose.
William Hansen (instructed by Hadgkiss Hughes & Beale, of Birmimgham) appeared for the applicants; Justin Bates (instructed by Birmingham City Council) appeared for the objectors.
Sally Dobson, barrister
Re Trustees of the Green Masjid and Madrasah’s application
Restrictive covenant – Modification – Section 84(1)(aa) of Law of Property Act 1925 – Covenant restricting use of land to use as private dwelling-house or professional practice – Restriction benefiting adjoining or adjacent land of city council – Applicants seeking modification of restriction to permit use as mosque and madrasah – Whether council entitled to enforce covenant as custodian of public interest as well as in capacity of adjacent landowner – Whether restriction securing practical benefits of substantial value or advantage – Application allowedThe applicants acquired the freehold of a property in Birmingham with a view to using it as a mosque (masjid) and madrasah school. That use of the property was prohibited by a restrictive covenant, imposed by a 1967 conveyance from the city council and subsequently varied by deed in 2000, limiting the use of the premises to a private dwelling-house or for the practice of a medical practitioner, dentist, solicitor or other professional person. The covenant was given for the benefit of so much of the council’s “adjoining or adjacent land… as is capable of being benefited thereby”. Nearby properties owned by the council included a community centre, a common and a terraced house let to a tenant, which were immediately adjacent to the applicants’ property, plus various other residential properties in the nearby streets. Although the council, as local planning authority, indicated in 2009 that planning permission was not required for the applicants’ proposed change of use of their property, they subsequently refused a request for variation of the covenant to permit that use.The applicants none the less proceeded to use the premises as a mosque and madrasah. The council’s claim for an injunction to stop that use was stayed pending an application by the applicants, under section 84(1) of the Law of Property Act 1925, to modify the restriction to permit their use of the premises. The applicants relied primarily on the ground in section 84(1)(aa) of the 1925 Act, namely that the restriction impeded a reasonable use of the land and did not secure to the council any practical benefits of substantial value or advantage. They gave evidence that the mosque was needed to cater for the large number of Muslim residents in the area and that their property was the only suitable and available building in the locality.The council contended that they were entitled to enforce the covenant not only in their own capacity but as custodians of the public interest. They gave evidence that the use of the premises created traffic and parking problems and had given rise to concern in the local community, with complaints received about noise coming from the property late at night and early in the morning. However, the applicants contended that the purpose of the restriction was not to protect the public interest but to benefit the council’s adjoining and adjacent land, which was unaffected by the use of the applicants’ property.Held: The application was allowed. (1) It was possible for local authorities to have the benefit of a restrictive covenant solely as the owners of the land to which it was annexed: Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278. The covenant in the 1967 conveyance had been varied in 2000 for the benefit of the council’s adjoining and adjacent land and not for reasons associated with the general or local public interest. The benefit of the covenant was not expressed by reference to an area of land defined on a plan or a named and identifiable estate; instead, the covenant benefited the council’s adjoining and adjacent land. The mere fact that the council retained extensive ownership of property in the vicinity of the applicants’ land was not sufficient to endow their objection with the status of having been made by a custodian of the public interest. The covenant was imposed by the council as landowner and the council’s objection should consequently be considered in terms of the land that was specified as having the benefit of the covenant, namely their adjoining and adjacent land: Re Martins’ application (1988) 57 P&CR 119; [1989] 1 EGLR 193; [1988] 3 PLR 45 and Re Houdret & Co Ltd’s Application (1989) 58 P&CR 310 distinguished.The expression “adjacent”, in the context of the covenant, required a degree of proximity that was limited to those properties that were capable of benefiting from the restriction. That did not include properties in the locality or neighbourhood generally: Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch 430 applied. The council owned four properties that adjoined the applicants’ land, in the sense of being physically contiguous with it, namely the common, a grass verge lying between two service roads, the terraced house and the community centre. The council’s main concern was the extent of on-street parking that occurred when the car park on the applicants land was full. There were an additional 25 council-owned properties in the surrounding streets that were affected by on-street parking and should also be regarded as adjacent land with the benefit of the covenant.(2) The restriction impeded a reasonable use of the applicants’ land. The applicants’ use was in accordance with local planning policy. The fact that that use might be unpopular, with considerable local opposition, did not mean that it was unreasonable. As to whether the restriction, by impeding that use, secured practical benefits to the objector, that question fell to be answered by reference to the effect of the proposed use on the council’s adjoining and adjacent land and not by considerations of public interest. The restriction did secure practical benefits to the council in respect of at least some of its adjoining and adjacent properties, by preventing the parking of additional cars on-street during the periods when the property was in use as a mosque and madrasah, avoiding the intensification of traffic movements associated with daily prayers and preventing any noise being made by people leaving the mosque. However, those practical benefits were not of substantial value or advantage. On the evidence, there was sufficient car parking available both off-street and on-street at and in the vicinity of the applicants’ land. Regarding the issue of noise, there was no specific evidence that any of the occupiers of the adjoining or adjacent properties of the council, which had the benefit of the covenant, had complained about noise. The ground for modification in section 84(1)(aa) was accordingly made out.(3) It was not appropriate for the tribunal to exercise its discretion to refuse modification on the grounds of the applicants’ wilful breach of the covenant. That conduct was mitigated by two factors: (i) the applicants were charitable trustees using the property in order to satisfy what they saw as an urgent requirement for a place of religious worship; and (ii) in the absence of legal advice to the contrary, they had made the common mistake of assuming that the existence of planning permission for the proposed use would eventually be determinative of the outcome of a request to modify the restrictive covenant, that mistake being compounded by the fact that the planning authority and the beneficiary of the covenant were the same person. The covenants would be modified to allow the specific use of the property as a mosque and madrasah; however, conditions would be imposed, under section 84(1C), to the effect that the applicants’ land should not be used for a call to prayer that was audible outside of the building located on that land and that those parts of the land that were presently used for car parking should not be used for any other purpose.William Hansen (instructed by Hadgkiss Hughes & Beale, of Birmimgham) appeared for the applicants; Justin Bates (instructed by Birmingham City Council) appeared for the objectors.Sally Dobson, barrister