England and Wales Lands Tribunal

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Cite as: [2005] EWLands LP_17_2004

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LP/17/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – preliminary issue – whether restriction imposed under a disposition made gratuitously – Law of Property Act 1925 s 84(7) – applicant held not entitled to apply under s 84(1)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

LAW OF PROPERTY ACT 1925

by

D W ROBINS

Re: The Rawson Institute (Village Hall)

The Street, Bolney

West Sussex RH17 5PG

Before: The President

Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL

on Tuesday 15 February 2005

Vincent Ellis-Brown for the applicant with permission of the Tribunal.

The following cases are referred to in this decision:

Re Plumpton Parish Council's Application (1962) 14 P & CR 234

Westminster City Council v Duke of Westminster [1991] 4 All ER 136

DECISION ON A PRELIMINARY ISSUE

The Registrar has questioned whether the Tribunal has jurisdiction to determine the application in this case, and I am deciding this question as a preliminary issue.

The application is made under section 84 of the Law of Property Act 1925 by Mr D W Robins, chairman of the committee of management of the Rawson Institute. It relates to an area of land, measuring 40 feet by 86 feet, attached to and forming part of the Rawson Institute, which serves as the village hall of Bolney in Sussex. The original village hall, comprising a small hall and a three bedroom cottage, was constructed in 1881 on land (the pink land) fronting The Street. In about 1930 what is now the main hall was constructed as an extension to the original building on the application land (the green land), which lies immediately behind that on which the original building stands. In 1964 a kitchen and toilets and a committee room were added.

The fee simple of the pink and green land was conveyed by an indenture dated 2 February 1924 (the 1924 conveyance) made between Beatrice Violet, Lady Leconfield, Dorothy Etta, Lady Warrender, and Richard Geoffrey Hamilton Rawson, the grantors, and five grantees on trust to permit the land "to be appropriated and used in perpetuity under the name of the Rawson Institute as a Club and recreation rooms for the use of the inhabitants of Bolney and otherwise for the benefit of the said parish as hereinafter appears" (clause 2). The grant was subject, as to the green land, to a restrictive covenant in these terms:

"that the piece of land or any part thereof shall not at any time hereafter be used for any purpose except an extension of the Village Hall and so that no dwellinghouse or shop or business premises or other building of any kind shall at any time hereafter be erected or built thereon or any part thereof except an extension of the Village Hall."

Covenants in respect of the green land in the same terms as this had earlier been included in a conveyance of 2 August 1921 of the green land from Sir Merrick Raymond Burrell and others to Edward Huth and a conveyance of 3 September 1923 of the pink and green land from Mr Huth to Lady Leconfield.

The application seeks the discharge of the restriction contained in the 1924 conveyance. The trustees wish to sell the pink and green land to finance a larger facility elsewhere in the village that would better meet the needs of the inhabitants.

The 1924 conveyance of the land was not expressed to be the subject of any consideration. It was because of this that the Registrar drew the applicant's attention to section 84(7) of the 1925 Act. This provides:

"(7) This section applies to restrictions whether subsisting at the commencement of this Act or imposed thereafter, but this section does not apply where the restriction was imposed on the occasion of a disposition made gratuitously or for a nominal consideration for public purposes."

The Registrar also drew attention to two cases, Re Plumpton Parish Council's Application (1962) 14 P & CR 234 and Westminster City Council v Duke of Westminster [1991] 4 All ER 136. In the former case this Tribunal (Sir William FitzGerald QC, President) held that there was no jurisdiction to modify or discharge a covenant contained in a conveyance for no consideration of land for a village hall. In the latter case Harman J (whose decision was reversed on appeal, but not in relation to the matter that is relevant for present purposes) held that a covenant on the part of the grantee of a 999-year lease to repair and insure the demised premises meant that the lease was not a disposition made gratuitously or for nominal consideration.

Mr Vincent Ellis-Brown, who appears on behalf of the trustees, submits that the application is not ruled out by subsection (7). He relies on clause 13 of the conveyance, which, he says, contains consideration for the grant. It provides as follows:

"All moneys received by the committee in respect of such charges as aforesaid or by way of rent in respect of any such letting as aforesaid or otherwise under or for the purposes of these presents shall be applied in repairing and improving the trust premises including any extension thereof and keeping the same and the furniture and effects from time to time therein insured against fire and in paying all rates taxes and other outgoings from time to time becoming payable in respect thereof and in paying all expenses of carrying on the trust premises and any extension thereof and providing and repairing furniture books periodicals and such other things as may be required for the purposes of the same mens and women's clubs or recreation rooms and paying the wages of all officers and servants whom the committee may think proper to employ for the purposes of these presents or otherwise in ascertaining the trusts and powers herein contained."

Those requirements do not, in my judgment, amount to consideration. They make provision for the way in which any rent received by the trustees from the land is to be applied. They are concerned simply with the trustees' duties in respect of the application of receipts from the trust property. They are comparable with the requirement imposed on the trustees (by clause 2) to permit the premises to be used as a club and recreation room and other requirements relating to the performance of their duties. Every trust imposes obligations on the trustees, and it does not seem to me that every conveyance of land on trust must on this account be treated as being made for consideration for the purposes of subsection (7). The requirements to which Mr Ellis-Brown points are not expressed to be by way of consideration, and in my view they are not consideration. They are simply part of the terms on which the grantees, as trustees, are required to deal with the trust property.

The effect of this conclusion is that the trustees are not entitled under section 84 to apply to have the covenant discharged, and the application must accordingly refused. I would, however, add that the covenant in the 1924 conveyance does not appear to be any longer enforceable. It is not expressly or by implication annexed to any land of the grantors, and, as a purely personal covenant, it would have ceased to be enforceable on the death of the last surviving grantor.

Dated 16 February 2005

George Bartlett QC, President