[2024] UKUT 00174 (LC)

This application concerns the site of a former school in Newcastle-under-Lyme, Staffordshire. The applicant is Staffordshire County Council (‘Staffordshire’), which owns the freehold interest. The school has been demolished, and planning consent has been granted, on appeal, for the construction of 55 houses. But the consented development is prevented from being built by restrictive covenants, so Staffordshire now applies to discharge or in the alternative to modify them.

The application has had a slightly complicated procedural history. Until it was withdrawn the day before the hearing, an objection was maintained by the local authority, the Borough Council of Newcastle-under-Lyme (‘Newcastle’). The other numerous objectors, listed in the Appendix, are many of the residents of the Roe Lane Farm housing estate which surrounds the application site. They have been represented by Dr Jurgen Orendi, a fellow resident who, as we explain below, did not himself have the benefit of the restrictions.

We carried out a site inspection on the day before the hearing, accompanied by representatives from Staffordshire and Dr Orendi. At the site visit Dr Orendi told the Tribunal and the applicant’s representatives that he would not be attending the hearing, because of his professional commitments and that the objectors would not be represented. We have had regard to the written and video evidence they submitted. Dr Orendi’s absence from the hearing has two important practical consequences. The first is that there was no challenge to the two witnesses who gave evidence for Staffordshire, Ms Lynsey Palmer and Mr Paul Causer, respectively Staffordshire’s Strategic Planning Manager and Estate and Valuation Manager; neither witness was cross-examined and their evidence is accepted in full. The second is that Dr Orendi himself, the only witness for the objectors, could not be cross-examined and therefore his evidence carries very little weight.

At the brief hearing on 14 May 2024, we heard oral submissions from Edward Denehan of counsel.

The restrictive covenants were contained in a conveyance dated 16 December 1958 (‘the 1958 conveyance’) under which Newcastle transferred to Staffordshire 19.75 acres of thereabouts of land (‘the transferred land’) forming part of the Roe Lane Farm Housing Estate. The transferred land is shown coloured purple, red, blue, and green on the plan below.

The transferred land and the houses immediately surrounding it are bounded by Seabridge Lane to the south, Roe Lane to the east, Sherborne Drive which curves to the north, and Harrowby Drive which is to the west.

As far as relevant, clause 2 of the 1958 conveyance contained the following:

The first two of those three covenants are the subject of the application. The land benefitting from the restrictions, ‘the Estate’, was a large swathe of land of which the transferred land formed a small part in the southern corner. Most of that land no longer belongs to Newcastle, having been sold long ago for housing.

On 7 March 1997, Staffordshire and Newcastle entered into a ‘Conveyance and Transfer and Deed of Release’ (‘the 1997 Deed’) concerning a number of different sites in the borough. In return for Staffordshire transferring to Newcastle the freehold of land elsewhere, in respect of the 1958 conveyance, Newcastle:

The ‘Roe Lane Site’ was the land which is coloured green and coloured blue on the plan shown above. That coloured green was subsequently sold to Westbury Homes, who developed it for housing, creating Ash Way (which runs off Seabridge Lane) and Bluebell Drive.

The land shown purple is the now the site of the Seabridge County Junior and Infants School, Roe Lane, the land having been transferred to The Shaw Education Trust. A small strip of land, comprising 90 square yards between 14 and 16 Roe Lane, was sold to a Mrs and Mrs Holland in 1962.

Taking stock at that point, Staffordshire owns the land coloured blue and red on the plan shown above, which together we shall call ‘the development site’. The land coloured red remains burdened by the restrictions, while those affecting the land coloured blue were varied as above.

The application land was originally used as a secondary school, but from 1997 to around 2017 it was used by Staffordshire as offices and facilities for its education department.