How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ash Your Own Question

Ash
Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
75100385
Type Your Property Law Question Here...
Ash is online now

Hi, Near to where I live, a school was built some years

Resolved Question:

Hi,

Near to where I live, a school was built some years ago on land defined as Metropolitan Open Land.
To gain access to this land, the local authority purchased a parcel of land from the farmer who owned adjacent land.
The local authority is now seeking to sell the land (including the access parcel) for a purpose other than education use.

This transaction (i.e. the purchase of the access land parcel) was registered with HM Land Registry in a Transfer document (dated June 1979) that includes the following wording:

“IN CONSIDERATION of the sum of …. XYZ, as the Beneficial Owner(s) HEREBY TRANSFER to LOCAL AUTHORITY (who are acquiring for the purposes of the Education Act 1944 for permanent objects of the Transferees not involving a resale or other disposition) the land show and edged red on the plan ….”

My questions:
1). Given the above clause, do the local authority have the right to either sell the land or allow a third party to use it for access to the main site?
2) Is there a legal right to stop the sale (of the access land parcel) or prevent the access land being used by another party?
3) If there is a legal right at 2) above, who can bring such action?

Hope this is clear.

David
Submitted: 3 years ago.
Category: Property Law
Expert:  Nicola-mod replied 3 years ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Nicola
Customer: replied 3 years ago.


Hi Nicola,


 


I am ahappy to wait for an answer.


 


Kind regards


David

Expert:  Nicola-mod replied 3 years ago.

Hello David,

We will continue to look for a Professional to assist you.

Thank you for your patience,
Nicola
Expert:  Ash replied 3 years ago.
Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

I see you have been waiting for this - I will try and help the best I can:

1). Given the above clause, do the local authority have the right to either sell the land or allow a third party to use it for access to the main site?

They are not allowed to sell it. They can let another party use it - but it must be for educational purpose or objects.

2) Is there a legal right to stop the sale (of the access land parcel) or prevent the access land being used by another party?

Yes you can stop the sale by an injunction or Judicial Review. But you can't stop the use if it is for educational purposes.

3) If there is a legal right at 2) above, who can bring such action?

Any resident who has 'locus' that is an interest.

Can I clarify anything for you about this today please?

Alex


Customer: replied 3 years ago.

 


 


Hi Alex,


 


Continuing from 2) above: stopping the use of the land for non-educational purposes.


 


The site stopped being used as a school some years ago and was converted to offices for Local Authority Education Department purposes. After several years of this use, the Local Authority granted themselves planning permission to extend the buildings (to create more offices and meeting rooms), with the planning permission having a Condition that stated that “The premises shall be used only for general local authority office purposes and for no other purpose whether or not within Use Class B1 as specified in the Schedule of Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that class in any statutory instrument revoking and re-enacting that Order.”


 


The limitation was not education purposes, so we must assume that there is precedent of non-educational use.


 


a) Does this create an issue / precedent that might stop a successful judicial review or injunction being brought?


 


b) Could an injunction be brought now for the current non-educational use, even though this use could be for more than 10 years?


 


c) The current proposal is for a residential development; can an injunction / judicial review prevent use for this even though the Local Authority may have already breached the condition regarding ‘only educational purposes or objects’?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
a) No - because if there was a condition on transfer for educational use they must deal with that and keep it as that.

b) Probably not - because its 3 months for a Judicial Review

c) You may be able to but sadly I think it may be out of time. You should have done something 10 years ago.

Alex

Customer: replied 3 years ago.

Hi Alex,


 


I may have confused things a little by referring to current use and possible future use, and so I am not sure that I understand fully what you have said.


 


Can we take these as two parts: 1) the current use (local authority office use); and 2) future use (proposed residential development):


 


1. Current use (offices):


If the Local Authority have been using the buildings for office use, rather than only education purposes, and have been doing this for more than 10 years, I understand that it is too late to bring a judicial review (due to 3 month time limit).


 


1a) Is it also the case that we are time barred from bringing an injunction?


 


1b) You state in your previous answer to (a) that because “there was a condition on transfer for educational use they must deal with that and keep it as that”. Who can enforce this and how do they do this?


 


2. Future use (proposed residential development):


If there is a new use for the site, and clearly not education purposes:


2a) Is this new use open to either judicial review or injunction (i.e. is it a new breach)?


2b) Does a previous breach of the condition of transfer by the Local Authority mean that other future breaches are immune from enforcement/injunction?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
1a) Offices - yes too late JR

1b) Too late to enforce, only the previous owner could do this.

2a) Well I think you are too late because the use has already changed

2b) Yes sadly because they have been accepted.

Alex

Customer: replied 3 years ago.

 


Hi Alex,


 


I may have (unintentionally) given the impression that there had been a complete change of use of the offices.


The education use has not ceased, but some other more general local authority office use may have been added. I have just reviewed the local authority’s website and they list the site as the contact address for the following departments:


Ÿ Education Welfare Service


Ÿ School Admissions Team


Ÿ School Effectiveness


Ÿ Early Years Advisory Team


Ÿ 14 - 19 Provision


 


These are all educational uses. Other local authority departments are possibly housed within the offices (using available spare capacity), though I cannot find any examples of non-education departments that list the site as their contact address.


 


1) Since the site still has continued education use (albeit with possibly some additional ancillary or incidental uses for non-educational purposes) does this mean that the use has not changed, i.e. that the local authority is still complying with the educational use requirement?


 


2) If the educational use has continued until now, does this mean that redevelopment of the site for residential purposes (subject to planning approval for change to C1 use) would be the first instance of breach of the condition?


 


3) Would the ‘additional’ existing use for non-educational purposes be sufficient grounds to allow a complete cessation of compliance with the education use clause and permit the land to be used for access to residential development only?


 


4) Does the above change your view on who can enforce, i.e. if there has been continuing use for educational purposes could “any resident who has 'locus' that is an interest” challenge this, or is there some time-barring that could prevent this?


 


5) Where you mention (at 1b) above) that only the previous owner could enforce, if I was to purchase the freehold to the farm, would I become the ‘previous owner’ and be able to enforce?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
Perhaps I should have been clearer.

You can not take action, you are too late for a judicial review.

The only person that possibly enforce the convent is the previous owner who is the beneficiary. So even if you purchased you could not enforce it - it would be the owner of the covenant.

Does that help?

Alex

Customer: replied 3 years ago.

 


Hi Alex,


 


That helps in respect of previous owner, but my questions related to the fact that the educational use has continued (albeit with some other additional uses).


 


Does this not mean that the use has not yet changed, and so the first answer you provided of actions available is still applicable?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
Sadly you are now out of time for any Judicial Review. Its simply been too long.

Even if you buy it, you can't stop any change. If there is a covenant it is only the beneficiary who can take any action.

Alex

Customer: replied 3 years ago.

 


Hi Alex,


 


Sorry, but I am confused.


Are you saying that the first advice you provided, i.e.:


1). They are not allowed to sell it. They can let another party use it - but it must be for educational purpose or objects.
2). You can stop the sale by an injunction or Judicial Review. But you can't stop the use if it is for educational purposes.
3). Any resident who has 'locus' that is an interest can bring such an action.
is all time barred or can only be brought by the original owner?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
1) and 2) - time barred

3) Not time barred for an injunction but time barred for Judicial Review.

Alex

Customer: replied 3 years ago.

 


Hi Alex,


 


I am sorry but I am getting more confused – perhaps my question is not clear.


 


At the start of this, there was a potential that the Local Authority (who have continued to use the site for educational purposes) would allow others to use the land to access a residential development.


 


In response to my questions you answered as follows:


 


1). Given the above clause, do the local authority have the right to either sell the land or allow a third party to use it for access to the main site?

They are not allowed to sell it. They can let another party use it - but it must be for educational purpose or objects.

2) Is there a legal right to stop the sale (of the access land parcel) or prevent the access land being used by another party?

Yes you can stop the sale by an injunction or Judicial Review. But you can't stop the use if it is for educational purposes.

3) If there is a legal right at 2) above, who can bring such action?

Any resident who has 'locus' that is an interest.


 


In your most recent response you said:


 


1) and 2) - time barred

3) Not time barred for an injunction but time barred for Judicial Review.


 


If the ‘event’ of allowing use has not yet happened, why is Judicial Review not available?

Expert:  Ash replied 3 years ago.
Remember in the earlier posts you never mentioned time limits.

My answer is therefore:

1) Its TOO late for a Judicial Review now

2) Only the owner of the covenant can take action

Does that clarify?

Alex

Customer: replied 3 years ago.

 


 


 


Hi Alex,


 


I am sorry, but this really does not clarify.


I do not understand why you are saying that I would be time barred from seeking a Judicial Review when the event of allowing someone to use the land for non educational purposes has not yet occurred.


Does the time limit not start from the date of the crystallising event?


 


Kind regards


David

Expert:  Ash replied 3 years ago.
Because by law you have 3 months to bring a Judicial Review.

You are 10 years outside this 3 month limit.

In terms of breach of convevant - there is no time limit for this. The beneficiary owner has NO time limit.

Its been used for non educational for 10 years, therefore you are out of time.

Does that clarify?

Alex

Customer: replied 3 years ago.

 


Hi Alex,


 


Yes, that makes sense – if you assume that it has been used for non-educational purposes for 10 years.


I can see how this is guiding your answer.


 


What I thought that I had explained was that it has continued to be used for educational purposes without break, but there may also be some additional office use for non-educational purposes.


It has never ceased being used for educational purposes.


 


So the question that I had asked was: if this incidental or ancillary non-educational use existed alongside the educational use – i.e. whilst the primary educational use continued to run – might provide the local authority with a defense against JR or injunction?


 


Kind regards


David

Expert:  Ash replied 3 years ago.

If it is currently education use then you have 3 months FROM the date it ceases to be.

Or if they propose to sell then you can JR that decision if they are within the 3 months of the non educational use.

I can't say what the LA may offer in defence. I would guess that they would say they have considered all factors and allowed consultation on planning.

Alex

Ash, Solicitor
Category: Property Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Property Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Remus2004

    Remus2004

    Barrister

    Satisfied Customers:

    2446
    Over 5 years in practice.
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Remus2004's Avatar

    Remus2004

    Barrister

    Satisfied Customers:

    2446
    Over 5 years in practice.
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    453
    UK solicitor holding an England and Wales practising Certificate.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    42
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law.
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    4708
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/AS/Aston Lawyer/2013-10-8_19517_JAPROFILEPICTURE.64x64.jpg Aston Lawyer's Avatar

    Aston Lawyer

    Solicitor

    Satisfied Customers:

    1907
    LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
  • http://ww2.justanswer.com/uploads/CH/chathamchamber/2011-4-24_191833_1.64x64.jpg chatham-chamber's Avatar

    chatham-chamber

    Solicitor

    Satisfied Customers:

    846
    LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
  • http://ww2.justanswer.com/uploads/CL/clairep80/2013-8-25_191218_dreamstimexs267279822nd.64x64.jpg Clare's Avatar

    Clare

    Solicitor

    Satisfied Customers:

    308
    I have been a solicitor in High Street Practise since 1985 with a wide general experience.
 
 
 

Related Property Law Questions