Effective objections to the discharge/modification of a restrictive covenant under section 84(1) (aa) of the Law of Property Act 1925 must relate to the benefit resulting from compliance with the terms of the covenant.
The Upper Tribunal (Lands Chamber) has considered this issue in Staffordshire County Council v Residents of the Roe Lane Farm Housing Estate [2024] UKUT 174 (LC); [2024] PLSCS 118.
The case concerned the site of a former school in Newcastle-under-Lyme, Staffordshire, which had planning permission for the construction of 55 houses.
The development was constrained by restrictive covenants, which Staffordshire, owner of the freehold interest, sought to discharge or modify.
The objectors – residents of the RLFHE which surrounded the application site – were not represented at the hearing.
The restrictions were contained in a December 1958 conveyance by Newcastle-under-Lyme Borough Council to Staffordshire of a small area of land in the southern corner of the RLFHE.
By the hearing the dispute had narrowed to one covenant on part of the site which prevented the erection of any buildings on the land other than schools and any trade or business. The restrictions on the other part were discharged in 1997.
The application relied upon the following grounds of section 84(1) of the 1925 Act: (a) that the restriction was obsolete; (aa) that it impeded a reasonable use of the land and secured no practical benefit to those benefiting from it; and (c) that its discharge/modification would not injure those with its benefit.
The objections related to the suitability of the land for continued use as an educational facility; access, safety and flooding issues; and that the applicant’s conduct was unfair.
The tribunal accepted unchallenged evidence that the school was surplus to requirements, the site was unsuitable for a school and Staffordshire had no intention of using it as a school again, in finding that the restriction was obsolete.
The grant of planning permission for the development satisfied the tribunal that the proposed use of the land for residential development in a largely residential area was reasonable. The covenant impeded that use.
Objections based on continuing education provision were misguided because retention of the covenant would not achieve their objective for a school for the site and it only affected part of the site in any event. Ground (aa) succeeded.
The objectors provided no evidence of safety or flooding issues or of maladministration by Staffordshire but the purpose of the covenant was not to protect them from the issues raised. Ground (c) also succeeded.
There was no evidence-based reason for the tribunal not to exercise its discretion to discharge the covenant.
Louise Clark is a property law consultant and mediator
