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

This is a renewed application for permission to appeal against a decision of the Lands Tribunal given on 8 January 2007 by which it refused an application by the Mahavir Foundation Limited (“Mahavir”) pursuant to Section 84 of the Law of Property Act 1925 for the discharge or modification of a restrictive covenant affecting freehold land.

The property in question is a roughly rectangular area of land which forms part of the Harrow Weald Park Estate. It was purchased by Mahavir in 2001. Mahavir is a registered charity established for the practice and pursuit of Jainism, a religion which I understand is closely associated with Hinduism and Buddhism (so the Lands Tribunal described it). There are about 15,000 Jains living within the M25 boundary. Mahavir acquired the property in order to erect upon it a single-storey building for use as a place of worship and religious instruction. There used to be a chalet style bungalow on the property which was used as a clinical medical centre from 1985 until the purchase by Mahavir in 2001. The property is now largely vacant although most the foundations of the former bungalow remain as does a large timber garage or shed.

At length on 13 February 2004 Mahavir obtained planning permission for an amended scheme for their proposed building. There had by then been something of a planning history which is described at some length in the Lands Tribunal judgment. By the amended scheme there would on the ground floor be a kitchen, an entrance hall and an entrance hall giving access to the prayer hall whose dimensions would be 8.25 metres by 12.07 metres. There is a basement with six lavatories; three for males, three for females. The planning permission was granted subject to conditions for instance relating to the location of meetings and the times at which the building might be used. The property was subject to a restrictive covenant imposed by a conveyance dated 7 October 1925 which, so far as relevant, was in these terms:

“No house for the time being standing on the said land shall be used for any trade business manufacture or otherwise known as a private dwelling house only. Any stable coach house garage or other erection shall be used for private purposes in connection with the house only and not separately or in connection with any trade business or manufacture. Nothing herein contained shall however be deemed to prevent any medical practitioner or solicitor practising in or upon the premises.”

The planning permission could not of course override the covenant and on the footing that the covenant would prevent the development of the property for the use intended and contemplated by the planning permission, Mahavir applied to the Lands Tribunal for an order to discharge or modify the covenant. Section 84 of the Law of Property Act 1925 provides so far as material:

“(1)

The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building there on, by order wholly or partially to discharge or modify any such restriction on being satisfied--

(a)

that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete; or

(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user;

[…]

(c)

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

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think is just to award under one, but not both, of the following heads …”

Then two matters are set out, and then (1A):

“(1A) Subsection (1)(aa) above authorises the discharge or modification of the restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either . . .

(a)

does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them;

(b)

is contrary to the public interest

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.”

Mahavir’s application to the Tribunal was made under Section 84 (1)(a),(aa) and (c). At the hearing before the Tribunal though not at any earlier stage Mr Harper QC for Mahavir suggested that the covenant on its proper construction did not in fact impede the proposed development. It appeared from his grounds and original skeleton argument that in this court Mr Harper proposed at first to complain of the Tribunal’s decision not to go into that matter for the reasons it gave at paragraphs 4 and 5. However Mr Harper has made it plain this morning that this is a point he cannot pursue; for my part, I think he is right to make that concession and it is unnecessary to say any more about that aspect of the case.

The application under Section 84 was objected to by the residents of some 68 houses on the Harrow Weald Park Estate, all of whom, as the Tribunal noted (paragraph 25), were accepted as being entitled to the benefit of the covenant. One house is close to the proposed development, that is North Lodge, which is occupied by a lady called Mrs Harcourt. The others are at a greater distance, perhaps a considerably greater distance. The relevant geography and indeed the history of the area are described in some detail by the Lands Tribunal at paragraph 6 to 13. I have of course carefully considered that narrative but will not repeat it here. There is no application for permission to appeal against the Lands Tribunal’s finding that the covenant did not fall to be deemed obsolete within Section 84 (1)(a). So I turn to Section 84(1)(aa), where the Lands Tribunal’s finding is indeed sought to be challenged.

It is important to notice at the outset that it was accepted on all hands that the proposed use was a reasonable one. As I have shown subsection 1(aa) refers to a reasonable user of the land. The question therefore was whether the case fell within subsection (1A). As I have shown, that requires the applicant to demonstrate that the restriction, in impeding the user in question, either does not secure the persons entitled to the restriction’s benefit any practical benefits of substantial value or advantage to them, or is contrary to the public interest; and in either of those events that money would be adequate compensation for any disadvantage.

On this part of the case the Lands Tribunal dealt first with public interest, and Mr Harper this morning made it plain that this is the major argument he wishes to advance. The Tribunal rejected Mr Harper’s submission before them that it must:

“… be contrary to the public interest to prevent worship and/or contemplation as described by Mahavir’s witness from taking place at a location convenient to Jainists.”

That is how the Tribunal summarised the submission. They held that it was not shown that the Jainists’ place of worship had to be on the application site. The evidence of a ten-year search for a site was unspecific and:

“We find it impossible to believe that a thorough search conducted over a considerable period of time would not have thrown up other possible sites.”

That is paragraph 53 of the Lands Tribunal’s decision.

This morning Mr Harper, in submissions that could not have been clearer, made it plain that his case on public interest is simply this: the Lands Tribunal, he says, have illegitimately imposed a test that is not to be found in the statute, namely a test of need, a test as to whether the proposed development is necessary or not because, for example, there is no alternative means of securing the aim in question.

Attractively put though it was, I am afraid that I do not accept this. Nor do I consider that the Lands Tribunal’s reasoning is faulty. It seems to me to be critical to notice that the question is not whether the proposed use, in this case Jainists’ worship and practice, is in the public interest, but rather whether the restriction in impeding that use is contrary to the public interest; and that is a different matter. The general public interest in facilitating the practice of religious belief has no overarching quality so as to place it above other interests; a restriction which in a particular case impedes it is not necessarily contrary to the public interest. No doubt the whole picture must be considered, including the potential for the use in question to be carried on at other places. In my judgment the Lands Tribunal did consider the whole picture. This part of their conclusions is not in my judgment amenable to realistic challenge.

The Lands Tribunal dealt with the other limb of subsection 1(A), namely whether the restriction secures advantage to those entitled to its benefit (paragraphs 54 to 58). I may summarise their conclusions in briefest outline as follows. They held paragraph 54 that:

“The proposed use of the land has the potential to attract large numbers of people.”

Paragraph 55:

“Even small gatherings on the relevant parcel of land would be likely to have a significant adverse effect on the amenities of North Lodge”.

Paragraph 56:

“The power to prevent the effects of the proposed use and so to preserve the residential character of the estate was of practical benefit of substantial advantage to the residents of the estate generally.”

Paragraph 57:

“It is no answer to the concerns of the residents to say that the present planning permission contains conditions designed to prevent the proposed use from having adverse effects.”

Paragraph 58:

“The tribunal rejected the argument advanced by the respondents that the discharge of the covenant would constitute, as it were, the thin end of the wedge.”

So on that last aspect Mr Harper carried the day. Overall, however, the Tribunal were not satisfied that this limb of subsection (1A) was made out any more than they had been satisfied upon the public interest question.

These conclusions on this particular part of subsection (1)(aa) are attacked on various grounds and it is summarised in this way. It is said that other covenants which are left undisturbed should have been considered in deciding whether this ground was made out. There is a point about parking and the residents of West Drive. It is said that the Tribunal’s conclusion in relating to that was perverse, given the distance of West Drive from the application site and the prevailing parking rules there. It is also said -- and I have a sense that Mr Harper places some particular emphasis on this -- that the tendency of planning controls to grow ever stricter was ignored, and so were some of the conditions that were imposed on the planning permission. It is clear that the planning history, if I may use that expression as a shorthand, is relevant to the Lands Tribunal’s consideration of subsection (1A) matters (see subsection (1D) which I need not read out).

Now in my judgment this part of the Lands Tribunal’s decision in large measure involved the exercise of judgment and balance by a specialist tribunal which heard oral testimony and visited the site. I cannot accept that there is any question of perversity, though a different tribunal might have taken a different view about the car parking issue. Nor do I think it is realistically possible to say that this tribunal failed to consider any of the matters which plainly they were bound in law to look at. In particular I do not accept that the Lands Tribunal disregarded the planning picture here. Their reasoning between paragraphs 54 and 58 may be open to some criticisms; but it is to be remembered that the planning history was set out in very considerable detail at earlier stages of the decision. This is, if Mr Harper will forgive me, an elegant attempt to rerun the merits at any rate in part.

It is also said that the Tribunal failed altogether to consider whether money compensation would be adequate; see the closing words of section 84(1A). But in view of their conclusions on subsection (1A) that did not, as I see it, arise. The applicant was obliged to show that either (1A)(a) or (b) was satisfied before the question of adequate compensation arose. Nothing is added to this part of the case by the earlier reference to consideration towards the end of section 84(1).

In all these circumstances it seems to me that Mummery LJ was right to refuse permission to appeal on 8 June 2007 and for my part, for the reasons I have given, I would do the same.

I agree.