Abbey Homesteads (Developments) Ltd v Northamptonshire County Council and another

Compensation for compulsory purchase — Basis of valuation of land — Appeal from decision of Lands Tribunal in favour of developers on preliminary issues — Essential question, although approached ‘through a tangle of statutory and contractual provisions’, was whether an area of 1.23 hectares, part of land which under an agreement pursuant to section 52 of the Town and Country Planning Act 1971 was to25 be ‘reserved for school purposes’, should be valued as freely available for residential development or as subject to a permanent covenant restricting its use to such purposes only — Lands Tribunal decided that the reservation did not create a restrictive covenant running with the land; that the restriction was of limited duration and did not preclude a valuation under rule (2) of section 5 of the Land Compensation Act 1961; and alternatively that if it did create a restrictive covenant it was one which should be discharged under section 84 of the Law of Property Act 1925 (an application for which had been made by the developers) — Held on appeal to the Court of Appeal that the reservation did create a permanent restrictive covenant running with the land; and that Lands Tribunal was in error in holding that the restriction ought to be discharged — The court rejected submissions that the reservation was not a negative restriction and that it was of temporary effect only — Appeal by district council allowed, the land to be valued as subject to a restrictive covenant — An appeal by the county council from a decision of the tribunal refusing it leave to be joined as an objector to the section 84 application was not challenged in the Court of Appeal, and this appeal was dismissed This was an appeal by case stated by the Northamptonshire County Council and the South Northamptonshire District Council from a decision of the Lands Tribunal (V G Wellings QC) determining certain preliminary issues in favour of developers, Abbey Homesteads (Developments) Ltd, respondents to this appeal. Gavin Lightman QC, J P Whittaker and Miss Elizabeth Jones (instructed by Shoosmiths & Harrison, of Northampton) appeared on behalf of the appellants; Martin Graham QC, M R West and Miss B Schwehr (instructed by Dickins & Batty, of Potters Bar) represented the respondents. Giving judgment, LAWTON LJ said: This is an appeal, by way of a case stated, by the Northamptonshire County Council (the county council) and the South Northamptonshire District Council (the district council) from a decision of the Lands Tribunal made on November 9 1984 whereby certain preliminary issues were decided in favour of Abbey Homesteads (Developments) Ltd (the developers). Stripped of its legal niceties, the appeal raises three questions. On what basis is 1.23 hectares of land at Towcester, Northamptonshire, which the county council have compulsorily purchased from the developers, to be valued?  Is the compensation to be assessed on the basis that the land is available to the developers for residential development or, as both the county and district councils submit, as land which was ‘reserved for school purposes’. The answers to these questions have to be sought through a tangle of statutory and contractual provisions. The development plan of the county council, drawn up in the 1960s, envisaged that the population of Towcester would increase with the inevitable result that there would be a need for more houses, schools, open spaces and services of various kinds. The developers saw opportunities for them in the Towcester area. Some time before 1976 they bought 13 hectares (34.3 acres) of agricultural land to the south-east of the Brackley Road (the A43). Between 1969 and 1975 the developers negotiated with the county council, the then planning authority, about the development of this land. After the reorganisation of local government in 1976 the planning authority became the district council. The developers negotiated with it for planning permission. The negotiations ended on June 4 1976 with the making of an agreement pursuant to section 52 of the Town and Country Planning Act 1971 and the grant on the same day of outline planning permission for ‘residential development (343 units), incorporating associated open space, a site for a primary school and local shopping provision’. Section 52 of the 1971 Act provides: (1)  A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement; and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement. (2)  An agreement under this section with any person interested in land may be enforced by the local planning authority against persons deriving title under that person in respect of that land, as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land. It follows that if the agreement was one restricting ‘the development or use of the land’ the district council could enforce it as a restrictive covenant running with the land. The district council contended before this court that the agreement did restrict the use of part of the land to ‘school purposes’ and, in consequence, created a restrictive covenant running with the land which they could enforce pursuant to section 52(2) of the 1971 Act. The developers contended that it was not, and, even if it was, it expired with the compulsory purchase on July 7 1983 by the county council, as the local education authority, for the building of a primary school. Further, it was void for uncertainty. The agreement recited that the developers had applied for planning permission for residential development of the land referred to in specified planning applications and that the district council wished to secure that the development of the land should be in the interests of the proper planning of the area and be restricted and regulated in accordance with the provisions of the agreement. In my judgment the proper planning of a site as large as 34.3 acres and the building of 343 dwelling-houses on it would require the making of provision for a school to be built and maintained and for open spaces. Clause 1 of the agreement was in these terms: Pursuant to the provisions of section 52 of the Town and Country Planning Act 1971 the company agrees declares and covenants with the District Council that from the date on which planning permission is granted to either of the applications the land shall be subject to the conditions restricting and regulating the development specified in the First Schedule hereto in addition to any conditions or limitations subject to which planning permission may be granted as set out in the Second Schedule together with any further conditions or limitations imposed on any appeal by the Secretary of State for the Environment. Schedule 1 dealt with various planning matters such as the construction of a road and a bridge. Para 5 provided as follows: ‘An area of 1.3 hectares adjacent to the playing field and amenity open space areas shall be reserved for school purposes.’ The plans annexed to the agreement did not specify where the 1.3 hectares were to be reserved by the developers; but the plan annexed to the outline planning permission given the same day did so in these terms: ‘An area of 1.30 hectares in the approximate position indicated on the deposited plan 710/2 adjacent to the playing field open space areas shall be reserved for school purposes . . .’. The developers can never have been in doubt as to where they were expected to reserve land for school purposes. Mr Graham took the point on behalf of the developers that the plan 710/2 could not be used to construe para 5 of the First Schedule. That may be; but it makes no difference, because the developers were entitled to build 343 houses on the site and it was for them, subject to the terms of the outline planning permission, to decide where on the land to reserve 1.30 hectares for school purposes. On July 7 1983 the county council made a compulsory purchase order of 1.23 hectares stating it was for a primary school for 245 children. On June 6 1984 it gave development permission for the erection of a primary school and unit for 315 children. This number was probably greater than was necessary to accommodate the children on the developers’ estate. It was intended to accommodate children from an adjacent housing estate as well as from the developers’ estate. In my judgment, this fact does not affect the planning purpose which para 5 was intended to achieve. I should add that on May 25 1983 the developers applied to the district council for a certificate of alternative development. The district council granted that certificate. The county council have appealed against the grant. That appeal has not yet been heard and awaits the outcome of this appeal. On September 30 1983 the developers applied to the Lands Tribunal pursuant to section 84(1) of the Law of Property Act 1925 (as amended) for an order that the restriction imposed by para 5 of the First Schedule to the agreement should be discharged wholly. Two grounds were put forward. First, that there had been a change in the character of the property because the making of the compulsory purchase order had rendered the purpose of the restriction obsolete; and second, no one entitled to the benefit of the restriction would be prejudiced by its discharge. The county council applied to be joined as an objector pursuant to section 84(3A) of the 1925 Act as amended. The Lands Tribunal refused it leave to do so. The county council has appealed from that26 decision, but in this court Mr Gavin Lightman on its behalf has not sought to challenge the Lands Tribunal’s decision on that issue. Accordingly the county council’s appeal is dismissed. The Lands Tribunal decided that para 5 of the First Schedule did not create a restrictive covenant running with the land, that such restriction as it did contain was of limited duration and in consequence as a matter of law it did not preclude a valuation under rule (2) of section 5 of the Land Compensation Act 1961. This meant that the 1.23 hectares should be valued without reference to the restriction for school purposes. Alternatively the Lands Tribunal decided that if para 5 did create a restrictive covenant running with the land it had become obsolete because of the compulsory purchase order, the entry into possession by the county council and the grant of authorisation of development for school purposes. The district council have challenged all these decisions. The fundamental finding of the Lands Tribunal was that para 5 did not create a restrictive covenant running with the land. The learned member, who signed the case stated, attached importance to the absence in para 5 of any words such as ‘and shall not be used for any other purpose’ and to what he considered to be uncertainty in the identification of the 1.30 hectares. Mr Graham adopted this reasoning. In my judgment it is faulty. On a natural reading of para 5 and of clause 1 of the agreement the developers covenanted with the district council for the benefit of the land that 1.30 hectares should not be used other than for school purposes. This covenant was just as restrictive as the seminal one in Tulk v Moxhay (1848) 2 Ph 774 which was to keep the plot and land forming Leicester Square Gardens as it was at the time of the conveyance. Under para 5 all the developers had to do was to refrain from building on the 1.30 hectares. Of course, if the identity of the land could not be ascertained, as Mr Graham submitted it could not be, then the covenant would not bite on any part of the 34 acres. But in this case the identity of the 1.30 hectares could be ascertained, and was intended to be ascertained, by the developers themselves. Their outline planning permission gave them guidance as to the area in which they were not to build houses: they were left by the agreement and the outline planning permission to decide what land should be reserved and this they did. Once they had done so the land was identified. Para 5 was unlimited in time: no period was prescribed for its duration as section 52 of the 1971 Act allowed. Mr Graham, adopting the reason of the learned member in the case stated, submitted that para 5, on its proper construction, was intended to come to an end when the 1.23 acres were acquired by the county council for school purposes, since its planning objective was then accomplished. I do not agree. As I have already stated, para 5 was put into the First Schedule with the object of securing the proper planning of the area. As long as there were 343 houses on the estate there would be need for a primary school somewhere on it. The need would be a continuing one. Proper planning for the area would not have been achieved had the covenant allowed the county council, or a private person, to start a school on the 1.30 acres, and then, after a short time, close it down and use the buildings for some other purpose. The construction as to duration which I adjudge should be given to para 5 provides the reason why the Lands Tribunal misdirected itself in deciding that if, contrary to its decision on construction, para 5 did create a restrictive covenant running with the land, it was obsolete because its planning purpose had been achieved and in consequence its discharge would not injure the district council. As there was a continuing need for a primary school on the estate, any restrictive covenant running with the land which was intended to ensure that the need could be met was one for a proper planning purpose. As, in my opinion, para 5 did achieve a proper planning purpose, Mr Graham’s submission that any attempt after the county council’s entry on to the 1.23 hectares to enforce it would be ultra vires is misconceived. Enforcement would achieve a proper planning purpose. For these reasons I would allow the district council’s appeal and declare that para 5 of the First Schedule to the agreement did create a restrictive covenant running with the land and that it should not be discharged. Agreeing, PARKER LJ said: Section 52 of the Town and Country Planning Act 1971 empowers a local planning authority to enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land either permanently or during such period as may be prescribed by the agreement. (Emphasis above and hereafter is mine.) On June 4 1976 the respondents and the district council entered into an agreement which was not only in fact made pursuant to that section but specifically recited: (a) that the district council was the local planning authority for the purposes of section 52, (b) that the respondents had applied for planning permission for residential development on their land, (c) that the district council wished to secure that the development of the land should in the interests of proper planning ‘be restricted and regulated in accordance with this agreement’, (d) that for that purpose the respondents were willing to enter the agreement ‘pursuant to the provisions of section 52 of the Town and Country Planning Act 1971’ restricting and regulating the development of the land in the manner hereafter appearing. Furthermore, the respondents by Clause 1 agreed, covenanted and declared with the district council pursuant to section 52 that ‘the land shall be subject to the conditions restricting and regulating the development specified in the First Schedule’. Para 5 of that Schedule provides simply: An area of one point three (1.30) hectares adjacent to the playing field and amenity open space areas shall be reserved for school purposes. In the light of those provisions it appears to me plain beyond all argument that it was the common intention of the parties to restrict the development of 1.30 hectares of the respondents’ land in the position specified on a permanent basis. It is also clear from clause 2 of the agreement that the respondents’ covenants were intended to bind their successors and from section 52 itself that such covenants were intended to be enforceable by the district council also on a permanent basis. It is therefore somewhat surprising to find that the respondents should have contended that para 5 is too uncertain to be enforceable, that it is positive and not restrictive and cannot therefore run with the land and that it is in any event of limited duration and expires when the planning objective, namely, the acquisition of the land for a school, has been achieved. All three contentions are in my judgment without foundation. The general position of the land to which para 5 applied was readily ascertained by the map specifically referred to in the agreement itself (see para 12 of the Second Schedule). Its precise boundaries were, it is true, not defined, and it is said that, this being so and there being no formula to resolve any dispute, para 5 fails for uncertainty. I see no need for any formula, for I see no room for any dispute. It was for the respondents to fix the precise boundaries and so long as the area was in the position defined the district council had no right to object. This objection fails. Next it is said that despite the repeated expressions of intention to restrict development and the express provision in clause 1 that the land was to be subject to restrictions, para 5 was positive and not intended to run with the land. It is said to be positive because it involved a positive obligation to define the area and reserve it. I have had some difficulty in following this argument and I reject it without hesitation. One has only to ask the question ‘were the respondents free to build residential houses on the land?’ to get the answer, ‘No they were not!’ If that is not restrictive I do not know what is. As to the suggestion that the covenant was not intended to run with the land, I regard it as being disposed of conclusively by the provisions of clauses 1 and 2, the recitals and the provisions of section 52. There remains on this part of the case only the contention that the covenant was of limited duration. The alternatives provided for by section 52 are either permanence or for a period prescribed by the agreement. No period was prescribed in the agreement. Permanence therefore prevails, at least unless there can be found elsewhere in the agreement or from admissible surrounding circumstances some cogent basis for importing a limitation. I can find none. The respondents’ contention that the covenant if it existed was of limited duration is, as I understood it, based on the notion that its purpose was merely to enable the local education authority to acquire the land for a school and accordingly that once that authority had acquired it the covenant was spent. If this was indeed the contention it is in my judgment misconceived. It was for the district council to determine, as a matter of planning, where they wished a school to be. It was and is the duty of the local education authority to secure that there are available for its area sufficient primary and secondary schools. It is, however, not obliged itself to provide all the schools and it is specifically empowered by section 6(1) of the Education Act 1953 to make arrangements for the provision of primary and secondary schools not maintained by it. There is therefore no reason why the local education authority should not have made arrangements with, for example, some charitable body that it should27 purchase the land in question and provide a school. If such a body did purchase the land but the covenant then lapsed that body would be possessed of land upon which there was no fetter. Furthermore, even if the purchaser is the local education authority it by no means follows that the covenant has no further use, for such authority might, after a time, decide that in accordance with its duties it could close down one school and wished to close down this particular school. In such circumstances the covenant could remain of much importance to the district council. If then, as I think, the covenant binds the land, what the respondents had, as soon as the land was identified, was land subject to a permanent covenant which would clearly affect its value in the open market. They contend, however, that it must be valued on the basis that it could be sold on the open market free of the covenant. The only bases upon which, in my view, such a contention could succeed are: (i) if the covenant had been discharged before the acquisition of the land under the compulsory purchase order, which it had not, or (ii) if the circumstances were such as to justify discharge at that time. The learned member of the Lands Tribunal considered that it would be or would have been appropriate to discharge the covenant and this court is asked whether he erred in law in the grounds upon which he took that view. In my view he did. The fact that at a particular time the owner or prospective owner of the land does not wish to breach the covenant or may even be under a statutory duty to comply with it does not render the covenant obsolete. In the same way the fact, if it be a fact, that the discharge of the covenant would not at the present time injure the district council is not to the point. It could clearly in certain circumstances be of value to them and this being so it does not seem to me possible to say that its discharge will not injure them. For the foregoing reasons as well as those appearing in the judgments of Lawton and Nourse LJJ, which I have read in draft, I also would allow the appeal of the district council. I agree that the appeal of the county council should be dismissed and I agree with the order proposed. Also agreeing, NOURSE LJ said: The first group of questions which arise on this appeal is concerned with the construction and effect of the section 52 agreement which was made between the district council and the developers on June 4 1976. Section 52 and the principal provisions of the agreement have already been referred to in the judgments of Lawton and Parker LJJ and I need not repeat them. The first step must be to construe the material condition in para 5 of the First Schedule to the agreement. In clause 1 of the agreement, that and the other conditions specified in the First Schedule are described as conditions ‘restricting and regulating the development’. Accordingly, the effect of a condition requiring a specified area to be ‘reserved for school purposes’ is that the development must be so restricted and regulated that that area is left available for those purposes. Where then is the specified area to be?  The condition prescribes that it is to be adjacent to the playing field and amenity open-space areas. It assumes that the situation of those areas is already known. In order to acquire that knowledge you must look, not at the small-scale plan attached to the agreement, but at the one of larger scale which was attached to the developers’ application for planning permission. That application is referred to in recital (3) to the agreement and the plan is referred to in para 12 of the Second Schedule (see below). Both the application and the plan are thus admissible for the purposes of construing the agreement. On looking at the plan, you see that the site proposed for a school is indeed adjacent to, which means close to, both areas. It actually adjoins the open space area. It does not adjoin the playing field area. Condition 5 thus requires that the school site shall be close to both areas. It does not require that it shall adjoin either of them. There is therefore some latitude in the matter and the only real question, so far as certainty is concerned, is how is the precise location to be determined? In my view that is not a question which admits of any doubt. The agreement was one whereby the developers agreed that their development of the land would be subject to certain conditions and limitations which were required by the district council. Provided that those conditions and limitations were observed, the developers remained masters of the situation and could develop the land as they chose. When, therefore, you find a condition requiring that a specified area shall be ‘reserved’ for certain purposes, it can only mean that its location is to be determined by the developers, subject to any requirement imposed by the district council. The only such requirement is that it shall be close to two other designated areas. That requirement having been imposed, the parties cannot be taken to have intended that some different or additional requirement should be imposed, namely that the district council is to be party to the determination of the precise location. In my judgment the effect of condition 5 is exactly that which it would have had if the words ‘in such position as the company shall determine’ had been added to it. So construed, condition 5 cannot be void for uncertainty and the decision of this court in Bushwall Properties Ltd v Vortex Properties Ltd [1975] 1 WLR 1649, on which Mr Graham so strongly relied, is readily distinguishable. I should add that, although a dispute could well have arisen as to whether the site chosen by the developers was adjacent to the two other areas, the mere possibility of such a dispute did not render the condition uncertain, since it was of a nature which the court could, and would if necessary, have resolved. The next question is whether the obligation imposed by condition 5, which admittedly is in form positive, is in substance positive or negative. If, as I have earlier identified it, the effect of the condition is that the development must be so restricted and regulated that the specified area is left available for school purposes, the substance of it is that the development must not be carried out so as to interfere with that requirement. That is in substance a negative and not a positive obligation. Then, it must be asked, did the parties intend that condition 5 should create a restrictive covenant whose burden was to run with the land, or did they intend that the obligation of it should exist only in contract?  The agreement was expressed to be made pursuant to the provisions of section 52 which, by subsection (1), empowers a local planning authority to enter into agreements ‘for the purpose of restricting or regulating the development or use of the land’ either permanently or for some limited period. As to that, it is worth observing that a developer is by definition someone who will often soon part with his interest in the land, and it is difficult to see how its use can be permanently restricted or regulated by obligations existing solely in contract. Moreover, as was pointed out by Lord Greene MR in Ransom & Luck Ltd v Surbiton Borough Council [1949] Ch 180 at p 194, the provision which is now embodied in section 52(2) is clearly designed to overcome the normal rule that a restrictive covenant can only be enforced against successors in title of the covenantor if it was made for the benefit of land which is retained by the covenantee. There would be little point in that provision if section 52(1) was not concerned, at least in part, with covenants enforceable against successors in title of the covenantor. In the circumstances, the agreement having been expressed to be made pursuant to the provisions of section 52, it seems that it must be approached in the expectation that it may have been intended to impose one or more restrictive covenants whose burden runs with the land. And in clause 1 it is seen that ‘the land’ is to be subject to the conditions restricting and regulating the development which are specified in the First Schedule. How then can it be said that such of those conditions are as negative in substance were not intended to run with the land, but to exist only in contract? Mr Graham sought to answer this question with a series of submissions, many of which appeared necessarily to involve the proposition that an agreement made pursuant to section 52 ought not to be construed in accordance with those principles which govern the construction of all other contracts, but in some special way appropriate to its planning subject-matter. Any such proposition which goes beyond a recognition that general principles of construction will always allow for the subject-matter of a particular contract must be firmly rejected. An application of those general principles makes it necessary for me to mention only one of Mr Graham’s submissions on this part of the case. He said that since the material words in clause 1 of the agreement refer only to conditions restricting and regulating the development of the land, and not its use, the First Schedule conditions are shown to be concerned only with planning matters and must therefore have been intended to exist only in contract. It is possible that that submission might have had some force had it not been for the immediately following words in clause 1, sc: ‘in addition to any conditions or limitations subject to which planning permission may be granted as set out in the Second Schedule’. Para 12 of the Second Schedule is in these terms: ‘An area of 1.30 hectares in the approximate position indicated on the deposited plan 710/2 adjacent to the playing field and amenity open space areas shall be reserved for school purposes such area to be additional to that referred to in Condition 9(b)’. The wording of that28 condition is no different from that of condition 5. I would certainly be prepared to accept that condition 12, like the other conditions in the Second Schedule, is concerned only with planning matters. But that reinforces, rather than detracts from, the view that condition 5 is concerned with something else. The learned member of the Lands Tribunal thought that the purpose of condition 5 was the same as that of condition 12 but, with respect, that does not explain the presence of both of them, nor of the two distinct sets of words in clause 1. Reading the agreement as a whole, I am in no doubt, on general principles of construction, that Mr Graham’s submission is incorrect and that the burden of condition 5 was intended to run with the land. The final question in the first group is whether the effect of condition 5 is permanent or temporary and, if the latter, for what period. The learned member of the Lands Tribunal thought that it was to endure only until the planning objective was achieved by the provision of a school site of the specified area. He did not, I think, give any reason of his own for that view. No doubt he accepted the argument of Mr Graham, which was to the effect that once the compulsory purchase order had been made and confirmed the land could not be used for anything but school purposes and the promise contained in condition 5 had therefore been fulfilled. I believe that that argument again involves a failure to give proper effect to condition 5 as distinct from condition 12. Section 52 expressly provides that a restriction may be either permanent or ‘during such period as may be prescribed by the agreement’. On general principles of construction a condition whose effect is not expressly limited must be taken to be unlimited in point of time. Again there would be little point in having a restrictive covenant whose burden was intended to run with the land if it was not intended to run permanently. For these reasons I am of the opinion that the submissions of the district council as to the construction and effect of condition 5 are correct. On that footing Mr Graham raised an entirely fresh point on this appeal, with which it is convenient to deal at this stage. His submission, as I understood it, was that if condition 5 had the effect for which the district council contends then it conferred on the district council a planning gain, ie a gain which could not lawfully have been secured by conditions attached to the planning permission, and that it was accordingly ultra vires and unenforceable. There seem to me to be a number of conclusive objections to that submission, but I do not think that I should take time to state them, because Mr Graham was unable to satisfy me that the submission was one in respect of which the district council might not have wished to adduce evidence if it had been advanced in the right place at the right time. Mr Lightman’s consent to this point being taken at this stage was naturally subject to that important proviso. Having held that condition 5 created a valid and enforceable restrictive covenant of permanent duration, I now turn to the developers’ application to discharge it under section 84(1)(a) or (c) of the Law of Property Act 1925. That subsection, so far as material, provides that the Lands Tribunal shall have power to discharge or modify a restrictive covenant 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 (c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction. Although on the view there taken as to the construction and effect of condition 5 it was unnecessary for the Lands Tribunal to express a view on the application under section 84(1), the learned member did give an alternative decision on it in the following terms: it would be my decision in the alternative, that the making and confirmation of the compulsory purchase order, the service of the notice to treat, the entry into possession of the land acquired by the County Council and the grant of planning permission to it for school purposes, have rendered the restriction obsolete . . . I would also be of the opinion that the proposed discharge would not injure the District Council because, notwithstanding what is said in its notice of objection, its purpose, as enshrined in the agreement, had been achieved. With the greatest of respect to the learned member, it seems to me that these views are another product of the basic failure to treat condition 5 as being a restrictive covenant of full effect and independent of condition 12. With regard to para (a) the obsoleteness, if it exists, must have come about 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 general words must be construed ejusdem generis with the particular words, and it seems to me that the matters relied on by the Lands Tribunal come nowhere near the genus. Moreover, the test for obsoleteness is whether the original object of the restriction can still be achieved; see Re Truman, Hanbury Buxton & Co Ltd’s Application [1956] 1 QB 261 and Driscoll v Church Commissioners for England [1957] 1 QB 330. In this case we are presented with the compelling fact that not only is the original object capable of being achieved; it is in course of actual and flourishing achievement. With regard to para (c), Mr Graham submitted that the persons entitled to the benefit of the restriction are the district council who, since they are not the local education authority, cannot be injured by the proposed discharge of condition 5. I do not think that that can be correct. It would involve too narrow a view of the district council’s function. Moreover, I think that in a case like this, where there is an obvious difficulty in fitting section 52(2) and para (c) together, the persons entitled to the benefit of the restriction must be taken to be those who benefit from the permitted use of the land which is subject to it. They are the children who go to school there and the generations to come, all of whom would be injured by the proposed discharge. In any event, there is authority for the view that para (c) is only a long stop against vexatious objections to extended user; see Ridley v Taylor [1965] 1 WLR 611 at p 622F, per Russell LJ. I certainly do not think that para (c) is a ground on which it would be proper to discharge the restriction in the present case. For these reasons, which are substantially the same as those which were advanced in the clear and concise argument of Mr Lightman in this court, I, too, would allow the appeal of the district council and make the declarations proposed by Lawton LJ. I agree that the appeal of the county council must be dismissed. The appeal of the district council was allowed with costs and the appeal of the county council dismissed with costs; directions given as to reserved costs below. Appropriate declarations made. Leave to appeal to the House of Lords refused. A petition for leave to appeal was subsequently refused by the House of Lords.