UT Neutral citation number: [2014] UKUT 70 (LC)

UTLC Case Number: LP/12/2012

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – 1864 and 1881 restrictive covenants – use as private dwellinghouse only and imposition of building lines – uncontested breach as a doctor’s surgery – no breach of building lines – application to discharge 1864 covenant under ground (a) allowed in part – application to discharge remainder of 1864 covenant under ground (c) refused – application to discharge 1881 covenant under grounds (a) and (c) refused – Law of Property Act 1925 s.84

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925

BY

MORNINGSIDE (LEICESTER) LIMITED

Re: 169 Narborough Road,

Leicester

LE3 OPE

Before: A J Trott FRICS

Sitting at: 43-45 Bedford Square, London WC1B 3AS

on 27 November 2013

Mr Gurmail Sidhu, of Douglas Wemyss Solicitors LLP, for the applicant

The application was unopposed

 Introduction

1.           Morningside (Leicester) Limited (“the applicant”) own the freehold interest in 169 Narborough Road, Leicester LE3 OPE ("the application land").

2.           The application land is subject to a restrictive covenant contained in a conveyance dated 12 July 1864 which states:

 "COVENANT by the said Archibald Turner with said Joseph Harris that he said Archibald Turner his heirs executors administrators or assigns would not at any time or time thereafter erect and build or cause to be erected and built any house or building upon any part of the land thereby assured within 50 feet from the fences bounding the Narborough and Foss roads except Porters Lodges and any buildings which might be necessary for the accommodation of such lodges AND ALSO that the said Archibald Turner would not erect or build upon any part of the land thereby assured any House of a less clear annual value than £35 and every house so to be erected and built should be kept so erected and held and used as and for a private residence only AND ALSO that the said Archibald Turner his heirs or assigns should not nor would at any time thereafter or on any account or pretence whatsoever erect or built or suffer to be erected on the land thereby assured or any part thereof any chapel church School factory Warehouse Slaughterhouse public house Beerhouse or any shop of any description or use exercise or carry on or permit to be used exercised or carried on upon the land thereby assured or any part thereof or on any Messuage or building to be erected thereon as aforesaid the trade or business of a Melting founder Tobacco pipe make Common Brewer Tallow Chandler Soap boiler Distiller Innkeeper Tavernkeeper Common Alehouse Keeper brazier Working Smith of any kind Butcher or Slaughterman or any other noxious or offensive or noisy trade or business whatsoever and that no building then being or which might be thereafter erected upon the land thereby assured or any part thereof should at any time be used for such purposes AND ALSO that he the said Archbald Turner his heirs or assigns should not nor would at any time or times thereafter lay out or permit or suffer any part of the land thereby assured or intended so to be to be laid out or used as a Cemetery or Burial ground or for allotments for gardens Tea gardens or any place of public amusement or resort it being intended that no buildings except private Dwellinghouses with the necessary outbuildings thereto should be erected upon the said land thereby assured or intended so to be or upon any part or parts thereof."

3.           The application land is also subject to a restrictive covenant in a conveyance dated 22 June 1881.  Insofar as relevant to the present application this covenant states:

"...AND ALSO that he the said George Brown his heirs and assigns will not erect or permit to be erected any buildings or erections (except boundary walls or fences as hereinafter mentioned) upon any part of the land hereby granted nearer to the Narborough and Ashleigh Roads than the line marked building line on the said plan..."

4.           On 4 July 2012 the applicant submitted an application under section 84 of the Law of Property Act 1925 seeking the discharge of both the 1864 and 1881 restrictive covenants.  On the application form the applicant said that it was relying upon grounds 84(1)(a), (aa) and (c).  In the publicity notice for the application the applicant said that it was only relying on grounds (a) and (c).

5.           There were no objections to the application and the applicant requested a determination without a hearing on 11 January 2013.  It relied upon its statement of case dated 4 July 2012.  This request was refused on 18 February 2013 and a hearing was listed on 18 June 2013.  This was vacated at the applicant's request and rescheduled for the 28 August 2013 and then 27 November 2013.

6.           Mr Gurmail Sidhu of Douglas Wemyss Solicitors LLP represented the applicant. The applicant relied upon its statement of case which included photographs and a report and valuation produced by Mr Ravi Seth BSc, MRICS dated 17 August 2011.

Facts

7.           I find the following facts from the evidence.

8.           The application land is located in the West End area of Leicester some 1.5 miles south of the City Centre.  It is situated to the south of Ashleigh Road at its junction with Narborough Road.  The front of the property faces Narborough Road but its main entrance is from Ashleigh Road.  To the south of the application land, along the west side of Narborough Road, is a block of residential property bounded by Westleigh Road, Fosse Road South and Ashleigh Road.  Narborough Road is largely commercial in this location with shops, restaurants and petrol filling stations in the vicinity of the application land.

9.           The application land comprises a brick-built, three storey end of terrace building with a pitched slate-covered roof, that appears to have been constructed as a house in the late nineteenth century.  The property reduces to two storeys along its Ashleigh Road frontage and there is a more modern single storey extension and a few car parking spaces to the west of the curtilage.

10.        The property was used for many years as a doctor's surgery in breach of the 1864 covenant.  The freehold interest was subject to a lease for 15 years from 24 June 2010 with the lessees trading as the Merridale Medical Centre.  The lease was surrendered, and the use of the application land as a doctor's surgery ceased, at or around the date of the application in July 2012.  The property is currently vacant.

11.        The application land had planning permission for a doctor's surgery.

The case for the applicant

12.        Mr Sidhu said that the application was for the discharge of both the 1864 and 1881 covenants on grounds (a) and (c).  The original application also referred to ground (aa) but this was not relied upon and, despite their being no objections, nor was ground (b).

13.        The applicant's statement of case said that the character of the area in which the application land was situated had changed dramatically since 1864.  Narborough Road appeared to have been constructed as houses but now comprised a wide range of commercial and retail uses.  The applicant said that "any dwelling houses would and do look out of place and out of character" and that "the few remaining 'dwelling houses' appear to be divided into apartments/bedsits."

14.        There was no reason why the 1864 covenant should remain in place and no particular property or interest that the covenant could or did protect or benefit. 

15.        The application land had planning permission for use as a doctor's surgery and, before being vacated, had been used as such for the last 25 years.  There was very limited demand in the locality of Narborough Road for either residential use or for use as a doctor's or a dentist's surgery.

16.         The 1881 restrictive covenant relating to the sitting of the building on the application land was no longer applicable as the buildings to which the building line referred had been erected more than 100 years ago together with the dwarf boundary wall.  There was no viable reason why the 1881 restriction should remain in place nor was there any particular property which had the benefit of the covenant.

Discussion

17.        Copies of the two conveyances were not produced and the wording of the covenants is taken from the Charges Register of the Official Copy of the freehold title.  There are no details of the extent of the benefited and burdened land, although it is likely, given the reference in the 1864 covenant to Foss Road, that the latter is considerably larger than the application land.  The applicant took no point in terms about whether the benefit of the covenants, or either of them, was personal to the covenantee and assigned expressly or whether the covenantee had retained land to which the benefit of the covenant(s) was annexed.  The applicant stated about both covenants that there did “not appear to be any viable reason why the restriction should remain in place and no particular property or interest that the restriction can or does in fact protect or [is] capable of benefiting.”  The Upper Tribunal has no jurisdiction to make a declaration under section 82(2) of the 1925 Act and the applicant’s remedy on this aspect lies with an application to the court under that section.

18.        The application and the statement of case did not refer to the proposed use of the application land.  At the hearing Mr Sidhu said that the applicant intended to open a pharmacy shop.  There was no planning permission for such a use and no planning application had yet been made.  There were no drawings or other details submitted in evidence to show how, and to what extent, the existing building on the application land would be affected.  Had the applicant sustained his application under ground (aa), which was pleaded originally,  I would not have been satisfied that some reasonable user of the land had been identified and I would not have discharged either covenant on this ground.

19.        Ground (a) of section 84(1) states:

"That by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete."

20.        I am satisfied that the character of Narborough Road has changed since the covenants were made.  But the Narborough Road frontage between Ashleigh Road and Westleigh Road remains predominantly residential.  A covenant becomes obsolete when its original purpose can no longer be served.  The intended purpose of the 1864 covenant was stated to be "that no buildings except private Dwellinghouses with the necessary outbuildings thereto should be erected upon the said land thereby assured or ... upon any part or parts thereof".  In my opinion the changes in the neighbourhood of the application land that are apparent in the use of the properties in Narborough Road have not rendered the 1864 covenant obsolete since the block of properties formed by Narborough Road, Westleigh Road Fosse Road South and Ashleigh Road remain predominantly residential and I do not accept the applicant's assertion that dwelling houses "would and do look out of place and character."

21.        The block of properties contains buildings which appear to have been converted into flats.  The expression "private Dwellinghouses" in the 1864 covenant suggests that it did not contemplate the erection of buildings with a public entrance and commercial parts. 

22.        The application says that the application land had been used as a doctor's surgery for 25 year and had planning permission for that use.  There is no corroborative evidence for this use although the registered leasehold title of the lease granted on 24 June 2010 shows the proprietors as being Robert Tew and Geoffrey Cook both trading as Merridale Medical Centre and the Ordnance Survey Plan shows the application land marked as a surgery.  I have no reason to doubt that the application land was used as a surgery for a prolonged period before the application was made.  Those with the benefit of the 1864 covenant appear to have acquiesced to this admitted breach for a long time.  The breach was open and obvious.  The building on the application land was modified and extended for use as a surgery.

23.        Under these circumstances I consider that the 1864 covenant no longer serves its original purpose in terms of the use of the application land as a private dwelling house and I find that part of the covenant to be obsolete.  But the 1864 covenant also restricts any building within 50 feet of the Narborough Road frontage and that part of the covenant has not been breached and there is a clear building line, compliant with that part of the restriction, between Ashleigh Road and Westleigh Road.

24.        Under section 84(1) of the 1925 Act the Tribunal has the power to partially discharge the 1864 covenant and, in my opinion, it should be partially discharged so as to read:

“COVENANT by the said Archibald Turner with said Joseph Harris that he said Archibald Turner his heirs executors administrators or assigns would not at any time or time thereafter erect and build or cause to be erected and built any house or building upon any part of the land thereby assured within 50 feet from the fences bounding the Narborough and Foss roads.”

25.        The purpose of the 1881 covenant was to maintain a building line along the Narborough Road and Ashleigh Road frontages.  That building line is defined in a note to the registered freehold title of the application land as being "the line of existing building in Narborough Road and Ashleigh Road."  The building on the application land, even after the construction of an extension, respects those building lines and there appears to have been no breach of the 1881 covenant.  The 1881 covenant continues to fulfil its original purpose and I do not consider that it should be deemed obsolete under ground (a).

26.        Ground 84(1)(c) states:

"that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction."

All that is known of the applicant's proposals for the application land is that it intends to operate a shop for a pharmacy business.  There are no details of how this will affect the existing building and whether it will involve a change to the building line.  Under these circumstances it cannot be said that the proposed discharge will not injure the persons entitled to the benefit of the remaining part of the 1864 covenant and the 1881 restriction.  It may or may not cause such injury but in the absence of adequate details of the applicant's proposals I am not satisfied that ground (c) has been established.

Determination

27.        The application to discharge the 1864 covenant is allowed in part under ground (a).

28.        The application to discharge the remaining part of the 1864 covenant is refused under ground (c).

29.        The application to discharge the 1881 covenant is refused under ground (a) and (c).

Dated 17 February 2014

A J Trott FRICS, Member