[2024] UKUT 00174 (LC)

We now turn to the grounds under which the application is made, in order to determine whether there is jurisdiction to grant the application.

Mr Denehan submitted that there have been material changes in the character of the property, or the neighbourhood, or other circumstances which the Tribunal deems material, have caused the restriction to become obsolete.

Staffordshire say in their statement of case that the application land was last used as a school in 1997, and it will never again be so used. Mr Causer’s evidence was that the site has become unsuitable as a secondary school.

There was no challenge to that evidence, in the absence of any representative of the objectors to cross-examine the witnesses.

As for the character of the property – the application land - the initial use as a secondary school ceased 27 years ago, and the use as educational training facility from 1997 to 2017 was not a school within the statutory definition. And the buildings were demolished in 2023. Mr Denehan submitted that the property thus ceased to be used for the use permitted by the restriction, and there is no realistic prospect of its future use for that purpose.

As for changes to the character of the neighbourhood, Mr Denehan referred to Mr Causer’s written evidence to the effect that when the restriction was entered into, much of the estate was farmland but residential development was in progress. The applicant, as the local education authority, bought the land to provide educational facilities for the growing residential development.

Mr Denehan submitted that there were other material circumstances that weighed in the applicant’s favour. Since the site is surplus to educational requirements, there is no prospect of a school being built. With the restrictions in place, it would be an unacceptable waste of land with the benefit of planning permission for residential development to leave the land fallow. He submitted that the original purpose of the restriction can no longer be achieved, and ground (a) is made out.

In assessing this ground we start from the unchallenged evidence that the school is surplus to educational requirements, that the site is unsuitable for a school, and that as local education authority Staffordshire has no intention of using the site for a school again. The Tribunal accepts that evidence.

Curiously we have been given no explanation for this state of affairs. The land is an empty space in a residential area, we accept that there is at present no prospect of its being used as a school, but we do not know why. However, the evidence that it will not be used as a school has not been challenged in cross-examination. The only evidence to the contrary is Dr Orendi’s evidence, which is given without expertise in matters of education and is simply an assertion of his opinion that the land is suitable, that nearby playing fields could be used (without explanation as to how that land, currently leased to a sports club, could become available to the school), and that there is a need for a school. He is a witness of fact and his opinion evidence is inadmissible. He did not attend the hearing for cross-examination and his evidence of fact carries little weight.

Accordingly we find that ground (a) succeeds; the restriction is obsolete.

Mr Denehan submitted that the proposed use of the land is reasonable; the grant of planning permission is ‘strongly persuasive’ (Re Hextall’s Application (1998) 79 P&CR 382). Although planning permission was at first refused, this was against officers’ advice, and was overturned on appeal, the Inspector noting 1) the proposal would not adversely affect the character and appearance of the estate, and 2) that safe and satisfactory access could be provided.

As the Lands Tribunal (Stuart Daniel QC) said in Re Bass’s Application (1973) 26 P&CR 156, planning permissions can be very persuasive in considering whether a use is reasonable, and in this respect we are satisfied that the use of the land for residential development in a largely residential area is a reasonable one.

There is no dispute that the restrictions impede that use on the part of the site which is affected by the restriction. Does impeding the use secure to the objectors a practical benefit? Mr Denehan submits that for a benefit to be a practical one, it must be real and not theoretical or imaginary, and that a restriction will only ‘secure’ a benefit if that benefit results directly from the observance of its terms (Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR).

It is sometimes the case, as here, that objectors raise grounds of objection that have little to do with the benefit that the restrictive covenants secure to them. In Re O’Reilly’s Application (1993) 66 P&CR 485, Mr O’Reilly had bought a plot of land from Rochester Council, subject to a restriction which prevented use other than as a car park. He wished to have the restriction discharged or modified to enable him to construct six dwellings. The Lands Tribunal (HHJ Marder, President) said this:

Similarly, in James Hall and Company (Property Limited) v Maugham and Ors [2017] UKUT 240 (LC), the objectors wanted to keep their local pub ‘The Aglet’ open for business, and not converted into a local convenience store. The Tribunal (P D McCrea FRICS) said this:

It seems to us that those elements of the objections which seek to continue the provision of education are, in the same way, misguided. The educational buildings on the site have been demolished, and there would be nothing to prevent Staffordshire from simply keeping the site vacant without breaching the restrictions. It must also be noted that the land shown blue on the plan above is unburdened by the restrictions so far as residential development is concerned. It would be open to Staffordshire, or any subsequent purchaser, to carry out residential development on that land, subject to planning, without breaching any restrictions in the 1958 conveyance.

Could it be said that if the land remains undeveloped at present it will be available for a school in later years if the need arises, and could benefit the objectors in that way? That would be pure speculation. The unchallenged evidence of the applicant is that the land is unsuitable for a school and will never be so used, and therefore it cannot be said that by remaining vacant the land secures any prospect for the objectors even of a future benefit.

We are conscious that the objectors are not legally represented, but we must reach the conclusion that of the objectors’ first set of objections are based on an incorrect understanding of the statute. Much as we understand the objectors’ desire for a school on the site, the retention of the restrictive covenant will not achieve this. Like the objectors in James Hall and Company they are trying to achieve a positive result through a negative covenant, and that cannot be done. If the covenant is not released it is likely that the land will remain vacant, because the local education authority has decided that it is not appropriate to build a school there. It is doubtless too late to challenge that decision by judicial review, but that is the only way it could be challenged. The objectors cannot achieve their primary objective by resisting the release of the covenant.

It follows from the above that the application would succeed under ground (aa).

To succeed, the applicant must demonstrate that the proposed discharge or modification would not cause injury. The objectors consider that the development would lead to access, safety and flooding issues, but they have produced no expert evidence to this support these assertions and Dr Orendi’s opinion evidence on these points is, again, inadmissible.

In any event, the purpose of the covenant is not to protect the objectors from the access or other issues that they suggest. Were a new school to be built on the site there might still be access problems and other practical challenges, none of which are prevented by the covenant. And as we have said above, it cannot be said that the objectors would be injured by the loss of a potential site for a future school, should Staffordshire’s intentions change, in light of the unchallenged evidence that the site will never be used as a school.

Accordingly the applicant succeeds on ground (c).

So under the jurisdictional stage, the applicant succeeds on grounds (a), (aa) and (c). We must now consider whether to exercise our discretion.