Mahavir Foundation Ltd v The Harrow Weald Park Estate Preservation & Anor

Section 84 of the Law of Property Act 1925 does not ask whether a proposed use is simply in the public interest. It asks whether the restrictive covenant, in impeding a reasonable use, is contrary to the public interest. That inquiry requires the whole picture, including the possibility of carrying on the use elsewhere; the public interest in religious worship has no overriding priority. A covenant may continue to secure practical benefits of substantial value by protecting residential amenity and character, notwithstanding planning permission and conditions. Adequate compensation arises only after a substantive statutory limb is established. Appellate intervention in a specialist tribunal’s evaluative judgment requires perversity or failure to consider legally relevant matters.

Mahavir purchased land within the Harrow Weald Park Estate intending to construct a place of Jain worship and religious instruction. Planning permission was obtained, but a 1925 restrictive covenant limited use of the land and buildings to private residential purposes. Mahavir applied to the Lands Tribunal under section 84 of the Law of Property Act 1925 for discharge or modification of the covenant.

On 8 January 2007 the Tribunal rejected the application. It found that the covenant was not obsolete and that neither the public-interest limb nor the practical-benefits limb of section 84(1A) was satisfied. Mahavir sought renewed permission to appeal, arguing that the Tribunal had imposed an impermissible test of need, failed to assess planning controls and other matters, and failed to address compensation.

The renewed application for permission to appeal was refused. Lord Justice Laws gave the reasons, and Lord Justice Gage agreed.

1. Public interest. The proposed use was accepted to be a reasonable use of the land. The statutory question under section 84(1)(aa) and (1A) of the Law of Property Act 1925 was not whether Jain worship was itself in the public interest. It was whether the restriction, in impeding that reasonable use, was contrary to the public interest. The whole picture had to be considered, including the potential for the use to be carried on at other locations. The general public interest in facilitating religious belief had no overriding quality which displaced other interests.
2. Practical benefit. The Tribunal was entitled to find that the proposed use could attract large numbers and that even small gatherings might adversely affect North Lodge’s amenities. The covenant secured the residents a practical benefit of substantial advantage by helping preserve the residential character of the estate. Planning conditions did not eliminate that benefit.
3. Appellate review. The Tribunal’s conclusions involved judgment and balance by a specialist tribunal which had heard oral evidence and visited the site. There was no perversity and no failure to consider matters which it was legally required to address. The planning history was relevant under section 84(1D), but it had not been ignored. The proposed grounds largely sought to rerun the merits, which was insufficient.
4. Compensation and remaining issues. The question whether money compensation would be adequate arose only after the applicant established one of the substantive limbs in section 84(1A). Since neither limb was made out, that issue did not arise. The covenant-construction point was conceded and the finding under section 84(1)(a) was not challenged.

Order: application refused.

1. Court of Appeal (Civil Division): Refused Mahavir’s renewed application for permission to appeal. The Lands Tribunal’s decision remained undisturbed.
2. Lands Tribunal: On 8 January 2007, refused Mahavir’s application under section 84 of the Law of Property Act 1925 to discharge or modify the restrictive covenant.