Covenant — Land with area of over four acres — Restrictive covenant that only one residence to be erected on one acre — Local authority resolving to appropriate land for planning purposes — Proposed redevelopment by erection of 10 houses — Whether valid appropriation — Whether land to be appropriated for some purpose connected with council’s planning functions — High Court holding that land not validly appropriated — Development not in interests of proper planning of area
The plaintiffs, Sutton London Borough Council, were the freehold owners of a piece of land comprising about one and a half acres, together with Malvern House which fronted Little Roke Road and Foxley Road, in Kenley, Surrey. It had been purchased in 1950 by Surrey County Council for use as a children’s home. Following a reorganisation of local government brought about by the London Government Act 1963, Sutton became the children’s authority for the area served by the home, which consequently became vested in Sutton although it was physically situated in the adjoining borough of Croydon.
The conveyance of 1950 was expressed to be subject to restrictive covenants contained in a conveyance of December 21 1882. One of the covenants provided that no more than one residence should be erected on each acre of the land conveyed. That land had an area of four acres two roads, and included the land now owned by Sutton. In 1981 Sutton decided to discontinue the use of the house as a children’s home and sell the property.
In 1984 outline planning permission was obtained in respect of the property from the local planning authority, Croydon London Borough Council, for the redevelopment of the property by the erection of 10 detached two-storey houses with garages and a new access drive. In 1988, following the claim by the defendants to the benefit of the restrictive covenants which would, if enforceable, preclude the proposed redevelopment, Sutton resolved that, pursuant to section 122 of the Local Government Act 1972, the site of Malvern House should be appropriated from the social services to planning purposes. It was hoped that in this way Sutton could obtain the benefit of section 127 of the Town and Country Planning Act 1971 (now section 237 of the Town and Country Planning Act 1990). Section 122 of the 1972 Act provided that a principal council (which included Sutton) might appropriate, for any purpose for which the council was authorised by statute to acquire by agreement, any land which belonged to the council and was no longer required for the purpose for which it was held immediately before the appropriation. However, any such appropriation of land by a council was subject to the rights of other persons in, over or in respect of the land concerned. The question arose whether the land was, for the purpose of section 127 of the 1971 Act validly appropriated for planning purposes by the resolution passed in 1988. The defendants argued, inter alia, that before a local authority could avail themself of the power to override easements or restrictive covenants under section 127, they had to show that they had acquired or appropriated the land for some purpose with the planning functions of the council, ie there had to be some nexus between the interests of its inhabitants and the acquisition of the land other than purely financial. The land need not necessarily be in the council’s area, but if there were no such nexus, it would be possible for a local authority in Sussex to acquire land in Northumberland.
Held The land in question had not been validly appropriated for planning purposes.
1. The power to appropriate land already owned was no greater than the power to acquire land by agreement for the same purpose. That was clear from the terms of section 122 of the 1972 Act. The definition provision in section 246 of the 1990 Act could not be regarded as enlarging in some way the power of appropriation.
2. The land could not have been acquired by agreement for the purposes for which Sutton were proposing to use it. The relevant power to acquire by agreement was in section 199 of the 1971 Act (now section 227 of the 1990 Act). That referred to compulsory powers in section 112 of the 1971 Act. Under section 112 it was necessary to show that the land was required “to secure the carrying out of one or more of the following activities, namely, development, redevelopment and improvement” or “for a purpose which is necessary to achieve in the interests of the proper planning of an area in which the land is situated”.
3. Sections 112 and 199 occurred in a part of the Act devoted to positive planning, not merely control and enforcement of planning. It enabled an authority to take positive steps to bring about the development of their area, and not merely control the activities of others. The proposed sale of the land for development pursuant to the planning permission granted by Croydon London Borough Council was not an acquisition or appropriation of land for the planning purposes of either Sutton or Croydon.
Peter Rawson (instructed by Sharpe Pritchard as London agents for the solicitor to Sutton London Borough Council), appeared for the plaintiffs; Andrew Tait (instructed by Cumberland Ellis Piers) appeared for the defendants.
