On 04-Dec-17 1:09 AM, Bill wrote:
Today I joined a protest about the sale of some public land by the local
council. I was wondering if anyone here can point me to a simple to
understand precis of the current planning or legal situation.

In this particular case, my understanding of the current position is
that the land was covenanted to the local community by someone with the
condition that it should remain open space. Any covenant documents
appear to have been lost.
This was raised in the past when the council first proposed the sale,
and the council took legal advice and backed down.

They have now re-advertised the land for auction. A councillor attended
the protest and said that the situation was now different because the
council has advice that it is a different body from "the community" and
so can just decide to sell any public land. He also said that recent
changes in planning law appear to have resulted in a situation whereby a
council can take any piece of public land and sell it.

There are other areas close by which have similar covenants, so this is
almost certainly the soft target for the thin end of the wedge.


This is a restrictive covenant and is only enforceable by a beneficiary
of the covenant. It will normally be tied to one (or sometimes more)
property in the area (the dominant land) and the beneficiary will be the
original owner of that property. In order for the benefit of the
covenant to pass to subsequent owners of the dominant land, it must meet
four tests:

The covenant must be restrictive, rather than a positive covenant, which
is the case here.

The covenant must benefit the dominant land, which is common, but may
depend upon their relative locations.

It is intended to pass, which is the default case. I.e. the covenant
must not expressly state that it cannot pass.

The buyer of the land has notice of the covenant. For registered land,
that would mean it has to appear on the Land Registry documentation or,
for unregistered land, in the Land Charges Register.

So, the first step is to discover whether the covenant is recorded at
the Land Registry or on the Land Charges Register. That should also tell
you who benefits from the covenant. From what you say, that might be
'the community' and defining that could be fun for the lawyers. The
beneficiary would then need to seek to enforce the covenant against the
council. I suspect you will also need to have a large legal fees fund.


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Colin Bignell