![[2024] UKUT 00174 (LC)](https://backend.juristeca.com/files/emisores/logo_lnJS4Uj.png){kind=logo}
The objections
The objections
As we have said above, Newcastle withdrew its objection shortly before the hearing. As Mr Denehan submitted, clause 2(2) of the 1958 conveyance required any plans to be approved by ‘the vendors’ (i.e. Newcastle), but not its successors in title. Since Newcastle has withdrawn its objection, we are satisfied that that clause 2(2) can be discharged. So, what follows is in respect of clause 2(1), which restricts the use of the land to a school.
The many objectors, who are listed in the appendix, are the owners or joint owners of 111 dwelling houses situate on nine streets, namely Eton Avenue, Repton Drive, Rossall Avenue, Rugby Close, Harrowby Drive, Winchester Drive, Sherbourne Drive, Roe Lane and Leys Drive. They have been represented by Dr Jurgen Orendi. Dr Orendi and his neighbours on Ash Way and Bluebell Drive originally objected to the application, but their objections were struck out by the Tribunal by an Order dated 31 October 2023, because their properties did not have the benefit of the restrictions – rather, they were on land which was originally burdened by it, although the covenant was later varied as outlined above.
As we have said, none of the objectors appeared at the hearing, and so what follows is collected from their written evidence, largely through Dr Orendi, and which has been untested in cross-examination. The objections raised against the application can be collected under three heads.
First, that the application land is suitable for, and should continue to be used as, an educational facility. The objectors say that:
the 1958 Covenant protects a “public function of fundamental local importance, namely the provision of educational infrastructure” to serve the Estate and the wider borough.
the importance of educational infrastructure will increase as a consequence of new housing developments.
the “local residential landowners” and the wider community benefit from the intended provision of educational and “social infrastructure” which offer environmental, local access and safety benefits.
the application land: (1) is suitable, both in terms of its type and extent, for school buildings, (2) is situated in a quiet residential environment, (3) contains environmental, ecological and educational assets (grassland, trees and hedgerows) which are habitats for birds, bats and “wildlife”, (4) is in close proximity to a development site for 550 new houses, (5) is immediately proximate to the playing fields, (6) incorporates “access and substantial parking infrastructure” which could be used for the benefit of the Seabridge Primary school and the Roe Lane playing fields.
the structures on the Application Land are not redundant and have been used as a testing centre in 2020 during the pandemic.
The Application Land can provide substantial parking infrastructure which can resolve inadequacies and potential dangers of the existing arrangements for access and parking to the Seabridge Primary School and Roe Lane Playing Fields.
Secondly, there are concerns about the proposed development, viz:
there are access and safety issues in Roe Lane, Sherborne Drive and Harrowby Drive.
there are flooding issues, and the provision of a drainage pond on the Application Land once developed will present a danger to vulnerable persons.
Thirdly, there are various allegations which the objectors say demonstrate that the applicant’s conduct has been unfair and ill-informed.
the Applicant has refused to acknowledge the beneficial features of the Application Land as it stands and is proceeding with the development of the Application Land for financial gain.
the Applicant transferred the tennis courts “in a secretive manner” to the Trust without engaging with those with the benefit of the 1958 Covenant or the wider public.
the Applicant should have annexed all its Property Committee records to the Application so objectors could assess them in full.
the leader of the Applicant gave assurances at the request of Simon Tagg, now leader of the Borough Council, which have not been complied with.
in September 2019 the planning committee rejected the Applicant’s planning application as it presented “fundamental and unresolvable problems”.
it is not uncommon for local education authorities to make poor decisions concerning educational infrastructure, and the structures on the Application Land are of sound construction.
Mr Tagg received incorrect information from the Applicant concerning the Application Land.