Staffordshire County Council v Residents of Roe Lane Farm Housing Estate

Restrictive covenants – Discharge – Section 84(1) of Law of Property Act 1925 – Applicant obtaining planning permission for residential development on former school site in residential area – Buildings demolished – Applicant applying to discharge restrictive covenant preventing erection of residential buildings – Whether restrictions obsolete – Whether restrictions securing practical benefits to objectors – Whether discharge causing injury – Application granted The applicant local education authority was the freehold owner of the site of a former school in Roe Lane, Newcastle. The school had been demolished and the applicant applied for planning permission for the construction of 55 houses. Planning consent was refused on the grounds of inappropriate development by virtue of the number of dwellings proposed, and because access to the site was inadequate and would not be able to accommodate the scale of the development. On appeal, the planning inspector was satisfied that a suitable residential scheme could be agreed at a reserved matter stage which would be acceptable and policy compliant. As for access, with suitable safeguards the development could provide a safe and satisfactory access. Accordingly, outline planning permission was granted. However, the consented development was prevented from being built by, amongst other things, a restriction which prevented the erection of any buildings on the land other than schools and any trade or business. Therefore, the applicant applied to discharge the covenant. The owners of 111 dwelling houses on an estate near the site objected to the application under section 84(1) of the Law of Property Act 1925 on grounds: (a) (the restriction was obsolete), (aa) (it impeded a reasonable use of the land and secured no practical benefit to those benefitting from it) and (c) (its discharge/modification would not injure those with its benefit). Held: The application was granted. (1) Under section 84(1), the tribunal, upon being satisfied that either of the grounds was made out, had power, wholly or partially, to discharge or modify the restriction. First, the tribunal had to be satisfied that one of the prescribed grounds was made out. If so, the tribunal then had to decide whether and to what extent to exercise its power: Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd [2020] UKSC 45; [2021] EGLR 1 considered. In the present case, the unchallenged evidence was that the school was surplus to educational requirements, the site was unsuitable for a school and, as local education authority, the applicant had no intention of using the site for a school again. The only evidence to the contrary was that of the objector’s representative, which was given without expertise in matters of education and was simply an assertion of his opinion that the land was suitable, that nearby playing fields could be used (without explanation as to how that land could become available to the school), and that there was a need for a school. He was a witness of fact and his opinion evidence was inadmissible. He did not attend the hearing for cross-examination and his evidence of fact carried little weight. Accordingly, ground (a) succeeded. (2) The grant of planning permission was strongly persuasive that the proposed use of the land was reasonable. Although planning permission was at first refused, that was against officers’ advice, and was overturned on appeal. The inspector noted that the proposal would not adversely affect the character and appearance of the estate, and safe and satisfactory access could be provided. The tribunal was satisfied that the use of the land for residential development in a largely residential area was reasonable: Re Bass’s Application (1973) 26 P&CR 156 and Re Hextall’s Application (1998) 79 P&CR 382 considered. There was no dispute that the restrictions impeded that use on the part of the site which was affected by the restriction. The question was whether impeding the use secured to the objectors a practical benefit. For a benefit to be practical, it had to be real and not theoretical or imaginary, and a restriction would only secure a benefit if that benefit resulted directly from the observance of its terms. (3) The objectors had raised grounds of objection that had little to do with the benefit that the restrictive covenants secured to them. Those elements of the objections which sought to continue the provision of education were misguided. The educational buildings on the site had been demolished, and there was nothing to prevent the applicant from simply keeping the site vacant without breaching the restrictions. The possibility that if the land remained undeveloped it would be available for a school in later years if the necessary, and could benefit the objectors in that way, was pure speculation. The unchallenged evidence of the applicant was that the land was unsuitable for a school and would never be so used. Therefore it could not be said that by remaining vacant the land secured any prospect for the objectors even of a future benefit: Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278, Re O’Reilly’s Application (1993) 66 P&CR 485 and James Hall and Company (Property) Ltd v Maugham [2017] UKUT 240 (LC) considered. The objectors were trying to achieve a positive result through a negative covenant, and that could not be done. If the covenant was not released it was likely that the land would remain vacant, because the applicant had decided that it was not appropriate to build a school there. It was too late to challenge that decision by judicial review, which was the only way it could be challenged. The objectors could not achieve their primary objective by resisting the release of the covenant. It followed that the applicant succeeded under ground (aa). (4) The objectors had produced no expert evidence to support their argument that the development would lead to access, safety and flooding issues and assertions and opinion evidence on those points was inadmissible. In any event, the purpose of the covenant was not to protect the objectors from the access or other issues that they suggested. The objectors would not be injured by the loss of a potential site for a future school, should the applicant’s intentions change, in light of the unchallenged evidence that the site would never be used as a school. Accordingly, the applicant succeeded on ground (c). (5) There was no evidence-based reason not to exercise the tribunal’s discretion in favour of the applicant. Nor was there any purpose in modifying the covenants, to permit only the development for which there was now planning permission, rather than discharging them. Edward Denehan (instructed by Staffordshire Legal Services) appeared for the applicant; The objectors did not appear and were not represented. Eileen O’Grady, barrister Click here to read a transcript of Staffordshire County Council v Residents of Roe Lane Farm Housing Estate