LINCOLNSHIRE COUNTY COUNCIL v (1) STEWART JAMES BUCKINGHAM (2) KIERAN DURCAN

The Mary Knox Centre on Smith Street in Lincoln is built on land bought on 4^th November 1911 by the Mayor Aldermen and Citizens of the City of Lincoln for £2,300 from Eleanor Peck and Florence Eleanor Harrison. Eleanor Peck was the life tenant of the land sold and Florence Harrison held the fee simple, and in the far-off days before the 1925 legislation they each held a legal estate and so both had to join in the conveyance. Two parcels of land were conveyed, one edged pink on the plan and one edged blue, and in respect of the land edged pink – on which the Mary Knox Centre stands - the purchasers gave a covenant to the sellers which is set out in the Third Schedule below.

The land is now held by the Lincolnshire County Council as statutory successors in title to the 1911 purchasers.

There was a school on the land from 1913 to 1973. It is now held on a 125 year lease by the Wellspring Academy Trust which uses it as a pupil referral unit and for curriculum support. But the Trust has now vacated the building, and for the future, according to the County Council, it will not be possible to use the land for educational purposes. The building and site and are too small for use as a school in an urban setting.

It is not clear from the 1911 conveyance whether the covenant was intended to benefit land retained by the sellers. Nothing is said in the words of the deed about retained land, but the plan attached to it shows that the land immediately to the west of the area edged pink – today part of Smith Street and the houses on either side – belonged to Eleanor Peck. Whether it was part of the land held by Mrs Peck and Mrs Harrison as life tenant and remainderman respectively is not known, but it is possible that was and that it was intended to benefit from the covenant.

In 1993 the County Council sold part of the land that is subject to the covenant, being the westernmost part of the land edged red, to Pelham Construction Limited and houses were built on it. No-one complained of a breach of the covenant.

The County Council has now applied to the Tribunal for the discharge of the covenant pursuant to section 84(1)(a) of the Law of Property Act 1925 on the basis “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”. Notices have been served on the surrounding properties, including all those in Smith Street (which extends beyond the land shown as Mrs Peck’s land in the 1911 conveyance), in accordance with the Tribunal’s requirements, giving the opportunity to object to the discharge of the covenant to anyone who can show that they are entitled to do so. Two people have given notice of objection, and I have to determine whether they are entitled to object and then to decide whether the covenant should be discharged.

Mr Stewart Buckingham is the owner of 40 Smith Street. It is part of the land edged pink in the 1911 conveyance and part of the land that was sold to Pelham Construction Limited in 1993. It is therefore burdened by the covenant, and Mr Buckingham’s house was built in breach of the covenant, but it is therefore not part of land that could have had the benefit of the covenant. Mr Buckingham is not entitled to object to the discharge of the covenant. He has raised concerns about the building of new houses on the school site and about the traffic issues that that will cause, and he will have the opportunity to express those concerns to the local planning authority when planning permission is sought for new development.

Mr Kieran Durcan lives in Croydon and is the owner of 83 Smith Street which lies immediately to the north of the land edged pink on the 1911 conveyance plan, on land that the plan labels “Gt Northern & Eastern Joint Railway Embankment”. Accordingly it is pretty much certain that 83 Smith Street does not have the benefit of the covenant because it would have been in the ownership of the railway company in 1911 and did not belong to Mrs Peck and Mrs Harrison. Mr Durcan is therefore not entitled to object to the discharge of the covenant.

As to the discharge of the covenant, I am satisfied that the order should be made. On the basis of the information provided by the County Council I find that the neighbourhood has changed since 1911, as one would expect, and as a result it is no longer possible to comply with the covenant by having a school on the land. The covenant that Mrs Peck and Mrs Harrison imposed out of concern for local education fulfilled its purpose for decades, but it is time now for the land to be put to a different use.