Staffordshire County Council v Residents of the Roe Lane Farm Housing Estate

Under Law of Property Act 1925, section 84(1), the Tribunal must first decide whether a statutory ground for discharge or modification is established and then decide whether to exercise its discretion. A restriction limiting land to school use may be obsolete where the site is surplus to educational requirements and there is no realistic prospect of its future use as a school.

A restrictive covenant secures a practical benefit only where observance of its terms directly provides that benefit. It cannot be retained merely to seek a positive outcome, such as keeping land available for education, where the owner could leave the site vacant without breach. Concerns not protected by the covenant do not establish injury under ground (c).

Staffordshire County Council, freeholder of a former school site, applied under section 84(1) of the Law of Property Act 1925 to discharge, or alternatively modify, covenants in a 1958 conveyance. The covenants limited development to school buildings and required the original vendor's approval of plans.

The school buildings had been demolished. Outline planning permission had been granted on appeal for 55 houses. Residents of the surrounding estate objected, principally on the basis that the land should remain available for education and that residential development would cause access, safety and flooding problems. The original vendor withdrew its objection. The central issue was whether grounds (a), (aa) or (c) in section 84(1) justified discharge and, if so, whether discretion should be exercised.

1. Application granted. The restrictions in clauses 2(1) and 2(2) of the 1958 conveyance were discharged.

2. Section 84(1) requires a jurisdictional stage and then a discretionary stage, as explained in Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45. The Tribunal found that each of grounds (a), (aa) and (c) was established.

3. Ground (a) succeeded. The school use had ceased many years earlier, the later educational-facility use was not a school use, and the buildings had been demolished. The unchallenged evidence showed that the site was surplus to educational requirements, unsuitable for a school and would not again be used as one. The restriction was therefore obsolete.

4. Ground (aa) also succeeded. Residential development was a reasonable use, with planning permission being strongly persuasive on that question. A practical benefit must be secured by the restriction itself. The objectors could not use a negative covenant to require the positive provision of education. The owner could keep the land vacant without breach, and part of the site could in any event be developed residentially without infringing the restrictions. Retaining the covenant therefore secured no practical benefit of substantial value or advantage.

5. Ground (c) succeeded. The alleged access, safety and flooding concerns were unsupported by admissible expert evidence and were not matters against which the school-use covenant protected. Nor would the objectors be injured by losing a speculative future school site when the evidence established that the land would never again be used for that purpose.

6. There was no evidence-based reason to withhold discretionary relief. Modification limited to the current planning permission would serve no purpose; it would risk further proceedings if future development required a new permission. Costs were reserved for written submissions.

Not stated in the judgment. This was a first-instance application to the Upper Tribunal under section 84(1) of the Law of Property Act 1925.