Factual and Procedural Background
The case concerns an application under section 84 of the Law of Property Act 1925 by Company A, the freehold owner of approximately 22.6 acres of land located on the southern edge of The City. The land lies immediately north of a road known as Ockwells Road, adjacent to a Grade I listed historic building, Ockwells Manor, which is privately owned. The National Trust holds restrictive covenants benefiting the Manor and surrounding land, preventing development without its consent. The applicant seeks modification of these restrictions on grounds (aa) and (c) to enable housing development.
There have been two previous unsuccessful applications under section 84 for the same purpose, both opposed by the National Trust. The National Trust now seeks to strike out the present application as an abuse of process and challenges ground (aa) on the basis that money would not be adequate compensation for the loss or disadvantage suffered.
The restrictive covenants were originally imposed by deeds dated 1945 and 1947 pursuant to the National Trust Act 1937, covering Ockwells Manor and surrounding land. The covenants restrict building without the Trust's consent and aim to protect the natural aspect and condition of the land. The applicant is the successor in title to the original covenantor.
Planning permissions dating back to the 1970s allow for low-density housing development on the land, which remains extant. The applicant now proposes a higher density scheme for approximately 295 dwellings, including affordable housing, supported by a mature tree belt screening the Manor from the land.
Earlier applications were dismissed by the Lands Tribunal based on findings that the proposed development would damage the setting of the Manor and that the restrictions were not contrary to the public interest. The National Trust contends that the current application is barred by issue estoppel and abuse of process, while the applicant argues that material changes in circumstances, including planning policy and housing need, justify reconsideration.
Legal Issues Presented
- Whether the current application under section 84 should be struck out as an abuse of process given the two prior unsuccessful applications on the same land and grounds.
- Whether ground (aa) of section 84(1)—that the restriction impedes reasonable user of the land contrary to the public interest and that money would be adequate compensation—is capable of being established in this case.
Arguments of the Parties
Objector's Arguments (National Trust)
- The current application is an abuse of process and should be struck out because it is identical in purpose to previous applications already determined, with no material change in circumstances.
- Ground (aa) should be struck out because money would not be adequate compensation for the loss or disadvantage suffered by the National Trust, which acts as custodian of the public interest in protecting the historic and natural setting of Ockwells Manor.
- The loss or disadvantage is to the public interest, which cannot be compensated by monetary payment.
Applicant's Arguments (Company A)
- The Tribunal has the power to strike out applications for abuse of process, but the present case is not abusive as it relies on grounds (aa) and (c), whereas the last decision addressed only ground (c).
- Material changes have occurred since the earlier applications, including a significant increase in housing need, changes in planning policy, and the maturity of the tree screen providing better visual mitigation.
- The land is not in the Green Belt and is suitable for development, which would contribute significantly to both open market and affordable housing needs.
- Money could constitute adequate compensation if paid to the National Trust, as it could be applied to the public benefit in protecting heritage in other ways, offsetting any disadvantage caused by the modification.
- The previous decisions do not preclude reconsideration in light of changed circumstances, and the current application has a reasonable prospect of success.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re Martin (1988) 57 P & CR 119 |
Money is not adequate compensation when the covenant protects the public interest; compensation must reflect the nature of the loss. |
The court recognized the binding authority of Re Martin but held that the passage regarding compensation was dictum and not part of the ratio decidendi; nevertheless, it is a significant statement guiding the adequacy of compensation in public interest cases. |
| Gee v National Trust [1966] 1 WLR 170 |
The National Trust's role as custodian of public interest and its right to enforce covenants protecting natural beauty and historic buildings. |
Supported the view that the National Trust enforces covenants to protect public interest, which informs the analysis of whether money can be adequate compensation. |
| Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P & CR 278 |
Compensation awarded to a public authority as a landowner for diminution in property value due to development on adjacent land. |
Distinguished from the present case as compensation was for land value diminution, not for loss of public interest protection. |
| Re Zenios [2010] UKUT 260 (LC) |
Application to modify covenants under a scheme of management; considered adequacy of compensation where the Trust is custodian of public interest. |
Confirmed that money may not be adequate compensation for public interest losses, but the issue remains fact-dependent and was under appeal at the Court of Appeal. |
| Re Bovis Homes Southern Ltd (1981) (unreported) |
Assessment of injury to National Trust from proposed development and adequacy of compensation. |
Found that loss or disadvantage to the Trust was not capable of being assessed in money terms, leading to dismissal of the application. |
Court's Reasoning and Analysis
The Tribunal considered whether the application should be struck out as an abuse of process. It held that although there had been two prior refusals of similar applications, the current application relied on grounds (aa) and (c), whereas the last decision addressed only ground (c). Material changes in circumstances, including increased housing need, planning policy developments, and the maturity and proposed maintenance of the tree screen, meant the applicant had a realistic prospect of success. Consequently, striking out the application was inappropriate.
Regarding ground (aa), the Tribunal examined whether money would be adequate compensation for the loss or disadvantage to the National Trust. It reviewed earlier authorities, particularly Re Martin, where it was stated that money would not be adequate compensation when the covenant protects the public interest. However, the Tribunal found that the relevant passage in Re Martin was dictum, not ratio decidendi, and that the adequacy of compensation is a question of fact dependent on circumstances.
The Tribunal acknowledged the significance of the dictum and consistent approach in subsequent cases that money alone may not compensate a body acting as custodian of the public interest. However, it accepted the applicant's argument that money paid to the Trust could be applied to public benefit in other ways, potentially constituting adequate compensation. As this contention was properly arguable and had not been previously tested, it was not a ground for striking out.
The Tribunal concluded that neither the application nor grounds (aa) or (c) should be struck out. It noted the general importance and difficulty of the compensation issue and indicated that the case was suitable for hearing by a High Court judge sitting with a surveyor member.
Holding and Implications
The Tribunal DISMISSED the National Trust's application to strike out the current section 84 application on grounds of abuse of process and on the basis that money would not be adequate compensation.
The direct effect is that the applicant's application will proceed to be heard on its merits, including the assessment of whether the restrictive covenants should be modified to permit housing development. The Tribunal emphasized that the issues raised, particularly regarding compensation to a public interest custodian, are complex and merit full consideration. No new legal precedent was set by this decision; rather, it clarified that prior refusals do not bar reconsideration where material circumstances have changed, and that the adequacy of compensation remains a fact-sensitive inquiry.