University Of Westminster, Re

Under the Law of Property Act 1925, jurisdiction to discharge a restriction is not necessarily co-extensive with jurisdiction to modify it. The Tribunal must identify precisely which statutory ground is satisfied and whether the facts justify discharge, modification, or both.

There is no presumption that silence after notice amounts to agreement under section 84(1)(b). The Tribunal must consider whether every person entitled to the benefit knew of the application and whether a non-consenting person would have appreciated the need to object. A composite notice must clearly distinguish discharge from modification and explain their different consequences.

The University of Westminster appealed by way of case stated from a Lands Tribunal decision concerning restrictive covenants affecting its freehold land. The Tribunal refused complete discharge but modified the restrictions to permit general educational purposes.

The application relied on section 84(1)(a), (aa), (b) and (c) of the Law of Property Act 1925. The appeal challenged the Tribunal’s treatment of the notice served on potential beneficiaries and the alleged presumption that, absent objection, discharge should be ordered. The central issue was whether the Tribunal had jurisdiction to discharge the restrictions, rather than merely modify them, on the findings made.

Appeal dismissed. Chadwick LJ gave the leading judgment, with Waller LJ and Swinton Thomas LJ agreeing.

1. Separate jurisdiction. Under section 84(1) of the Law of Property Act 1925, jurisdiction to discharge and jurisdiction to modify depend on the particular findings made under the statutory grounds. A finding under ground (aa) that continued existence of a restriction would impede reasonable use unless modified gives jurisdiction to modify, but not to discharge. Discharge under that ground requires a finding that reasonable use would remain impeded despite modification.
2. Specific findings. In a composite application the Tribunal must state whether the relevant finding concerns discharge, modification, or both. This applies particularly to agreement under ground (b) and absence of injury under ground (c).
3. Silence and agreement. Whether ground (b) is established by non-response to notice is a question of fact. Silence is not presumptive evidence of agreement. The Tribunal must consider whether all persons entitled to the benefit were served or otherwise became aware of the application, and whether a person disagreeing with the proposed relief would have considered an objection necessary to protect the interest.
4. Composite notices. Where discharge and modification are sought in the alternative, the notice must distinguish clearly between them and make their respective consequences clear beyond reasonable misunderstanding. The President was entitled to conclude that recipients might have misunderstood the effect of complete discharge and therefore to decline to infer agreement from non-response.
5. Discretion. Chadwick LJ added guidance for future cases, stating that discretion arises only after jurisdiction has been established and can operate only within the relief available under the statutory findings. The alleged presumption or legitimate expectation that discharge should follow an unopposed application was rejected. These observations were expressed as future assistance and were not necessary to the result.
6. On the proper analysis, the Tribunal had jurisdiction to modify but not discharge the restrictions. Modification was the only order properly available on the findings.

• Court of Appeal (Civil Division): Appeal by way of case stated dismissed. The Tribunal’s order modifying the restrictions was upheld, and the Court held that it had no jurisdiction to order complete discharge on the findings made.
• Lands Tribunal: On 3 December 1996, the Tribunal refused discharge but modified the restrictions to permit general educational purposes.