[2024] UKUT 187 (LC)

It is convenient at this point to deal with a submission on the Tribunal’s jurisdiction from Mr Brian Bell in his capacity as chairman of the Courtyard Gardens Residents’ Association (‘CGRA’). Mr Bell correctly observed that the Tribunal only has jurisdiction to discharge or modify negative covenants. He submitted that, while the restriction that the land “shall not be used other than as an old persons’ warden scheme” is couched in the negative, the stipulation was in substance a positive attempt to ensure the land was used for the provision of much-needed housing for older people. The wording was described by Mr Bell as “expedient”, by which he explained that he meant it was used simply because it is easier to use the negative wording to signify a positive intention. The Council purchased the land with the express intention of residential development for older people. Mr Bell submitted that since the covenant is in effect a positive one, the Tribunal does not have jurisdiction to discharge or modify it.

We do not accept Mr Bell’s submission. If it was correct, it would be true that the Tribunal would be unable to discharge or modify the covenants, but it would also be the case that the covenants would not restrict what Clarion could do with the application land. A positive obligation does not generally bind a successor in title. For that reason the language used to impose covenants on a sale of land is important and is chosen carefully. As a matter of language it would not have been difficult for the Executors and the Council to have included in the Conveyance a positive obligation that the Council must use the application land for the provision of housing for older people. But a positive obligation to use land in a particular way is an unusual one in a freehold sale, and it is clear that the Council would not have been in breach of these restrictions if it had made no use of the application land at all. No doubt it was expected and intended that the land would be used for housing older people, as duly happened, but an expectation or intention is different from an obligation and there is no doubt that these provisions are restrictive only.