University of East London Higher Education Corporation v Barking and Dagenham London Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lightman,Mr Justice Lightman |
| Judgment Date | 09 December 2004 |
| Neutral Citation | [2004] EWHC 2710 (Ch) |
| Court | Chancery Division |
| Date | 09 December 2004 |
| Docket Number | Case No: HC03CO3796 |
[2004] EWHC 2710 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lightman
Case No: HC03CO3796
Mr David Ainger (instructed by Finers Stephens Innocent, 179 Great Portland Street, London W1W 5LS) for the Claimant
Mr Christopher Cant (instructed by Barlow Lyde & Gilbert, Beaufort House, 15 St Botolph Street, London EC3A 7NJ) for the First Defendant
Ms Karen Walden-Smith (instructed by Legal Services Department, London Borough of Redbridge, Town Hall, High Road, Ilford, Essex IG1 1DD) for the Second Defendant None of the Third Defendants attended and were not represented
Hearing dates: 14th-20th July 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Lightman
I. INTRODUCTION
The London County Council ("the LCC") acquired as public housing authority for housing for the working classes the Becontree Estate, an estate of some 3,000 acres. By four conveyances ("the Conveyances") dated the 8 th June 1931 ("the 1931 Conveyance") the 9 th February 1932 ("the 1932 Conveyance") the 31 st December 1935 ("the 1935 Conveyance") and the 14 th February 1946 ("the 1946 Conveyance") the LCC conveyed on sale in four tranches some 24 acres on the western edge of the Becontree Estate to Essex County Council ("Essex") as education authority for secondary educational purposes. The four tranches are now known as the Barking Campus. By each of the Conveyances Essex "for themselves their successors and assigns" entered into restrictive covenants with the LCC "their successors and assigns". The relevant covenants ("the Covenants") contain three restrictions. The first covenant ("the User Covenant") prohibits use of the Barking Campus except with the consent of the LCC for purposes other than for public educational purposes. The second covenant ("the Approval Covenant") prohibits the erection of any building on the Barking Campus except in accordance with plans and elevations approved by the LCC. The third covenant ("the Pre-emption Covenant") prohibits the sale or (save for educational purposes) the parting with possession of the Barking Campus without first offering to sell the Barking Campus to the LCC. I shall refer to the User Covenant and the Approval Covenant together as "the Restrictive Covenants".
The claimant, the University of East London Higher Education Authority ("UEL"), as successor of Essex is the freehold registered proprietor of the Barking Campus and occupies the Barking Campus as one of its three campuses for educational purposes. As long ago as the 8 th November 1973 the then Department of Education and Science indicated that the existence of three campuses was not acceptable. In 1997 UEL acquired land for a campus in Docklands with a view to concentrating the bulk (if not all) of its activities on that campus, and the Barking Campus is now surplus to its requirements. UEL accordingly wishes to sell the Barking Campus free from the Covenants for the purposes of housing. The issue has however arisen whether the Covenants prevent UEL from doing so, and in particular whether the benefit of the Covenants is vested in any and if so which of the successors in title of the LCC as owners of the remainder of the Becontree Estate and whether the burden of the covenants binds the successors in title of Essex to the Barking Campus.
The first defendant, the London Borough of Barking and Dagenham ("LBBD"), and the second defendant, the London Borough of Redbridge ("LBR") are the statutory successors to the LCC as public housing authority responsible for the public sector housing within the Becontree Estate and between them are the registered proprietors of the residential housing units on the Becontree Estate which are not in private ownership. By far the greater number of such units is vested in LBBD. Only some 45 housing units are vested in LBR. LBBD and LBR are at one in contending that they are entitled to the benefit of, and to enforce, the Covenants and that the Covenants preclude the proposed use of the Barking Campus. They do so most particularly because they are concerned at the additional cost which will be occasioned to them in respect of the provision of education if the use of the Barking Campus is changed to that of the provision of housing and they claim to be entitled, as the price of giving their consent to what UEL proposes, to the payment of substantial consideration.
The question also arises whether, if the Covenants are enforceable, they are enforceable, not merely by LBBD and LBR as housing authorities owning residential housing on the Becontree Estate, but also by LBBD's and LBR's tenants and the owners and tenants of properties on the Becontree Estate which are in private ownership. To enable any and all such persons to maintain a claim to the benefit of, and entitlement to enforce, the Covenants, in accordance with an order made by Chief Master Winegarten on the 6 th January 2004 the third defendants were joined and given notice of the proceedings by advertisements and the placing of notices in prominent positions near to the Barking Campus on the Becontree Estate. None of the third defendants attended, or were represented at, the hearing.
II. RELEVANT HISTORY
(a) General
The LCC was established by the Local Government Act 1888. The Housing of the Working Classes Act 1890 (as amended by the Housing, Town Planning, &c. Act 1919) conferred on the LCC power to acquire land outside its area for the provision of housing for the working classes living within its area. On the 14 th May 1919 the LCC published a report proposing the purchase of some 3,000 acres which now constitute the Becontree Estate for the purpose of the municipal provision of housing for the working classes. The London County Council (Compulsory Acquisition of Land) Order ("the 1919 Order") was made on the 21 st October 1919 and confirmed on the 26 th February 1920. Pursuant to the 1919 Order (and possibly certain voluntary purchases outside the 1919 Order) between 1919 and 1921 the LCC acquired the Becontree Estate. The greater part of the Becontree Estate was allocated to housing, but parts were allocated to other uses such as open space, commercial use, schools and other public services. The erection of about 20,000 houses for some 120,000 working class inhabitants from the LCC area began in 1921 and was officially completed in 193The architecture of the Becontree Estate is distinctive. The houses are mostly small two storied terraces houses constructed at twelve to the acre.
The LCC wanted to extend its eastern boundary to include the Becontree Estate and made representations to the Royal Commission on Local Government in 1922 to this effect. The proposal however met with almost unanimous objection from other local authorities who wanted to retain their separate identities. The Royal Commission in its Report of the 27 th February 1923 recommended retaining the status quo, but it recognised that there might be changes in the future at the level of local authorities and the changes might include local authorities acquiring parts of the housing functions of the LCC relating to the Becontree Estate. Accordingly there can have been no realistic expectation on the part of the LCC at the date of the Conveyances that the Becontree Estate would fall within the boundaries of the LCC. But there was a real possibility that bodies other than the LCC might assume the responsibility for housing of the LCC.
By the 1930s it was recognised that the provision of education for families on the Becontree Estate was inadequate and that there was an urgent need for schools and institutions of further education. The responsibility of the LCC was limited to housing and did not extend to provision for education or other services on the Becontree Estate which were the responsibility of the local authorities. Most particularly Essex was responsible for the provision of elementary and higher education in areas of rural district councils and higher education in all other areas.
Under a succession of statutory provisions power was conferred upon the LCC to deal with land acquired for the purpose of providing accommodation and in particular "to sell or lease all or part of the land for the purpose and under a condition providing for the erection and maintenance of housing for the working classes or for the use of the land for purposes? necessary or desirable for or incidental to the development of the land as a building estate in accordance with plans approved by the Local Authority": see section 15(1)(b) of the Housing, Town Planning, &c. Act 1919; section 59(1)(b) of the Housing Act 1925; section 79 of the Housing Act 1936; and section 105(1)(a) and (b) of the Housing Act 1957. To enable Essex and the other local authorities to fulfil their responsibilities the LCC reserved sites on the Becontree Estate for schools and other public services to be provided by them, and in particular the LCC reserved the Barking Campus for the provision of education. By the Conveyances pursuant to the statutory provisions to which I have referred the LCC conveyed to Essex as education authority the Barking Campus, and Essex as education authority built and opened thereon a technical college and a secondary (technical) school. This secondary school moved to its own premises elsewhere in 1960. The technical college was...
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