Trowers' property litigation weekly update
This week we look at a couple of decisions of the Upper Tribunal (Lands Chamber). One about restrictive covenants and a failed s84 application, the other which sheds light on what can and cannot qualify for rates relief as a place of religious worship.
Quantum (Barrowsfield) Ltd v Bell and others  - Don’t disregard restrictive covenants
An application to modify or discharge a restrictive covenant to enable the construction of a block of flats has been refused in the Upper Tribunal (Lands Chamber).
The applicant had planning permission to build a 5 storey block of 33 flats. However, the land was subject to two restrictive covenants, from 1963 and 1993, which prevented the construction of more than one dwellinghouse on one of the plots and the occupation by more than one household on another of the plots. The applicant sought modification of the two covenants so that the block of flats could be built.
In order to modify the covenants the Tribunal needed to be satisfied that those covenants do not secure practical benefits of substantial value or advantage.
Judge Elizabeth Cooke and Mrs Diane Martin accepted that the development would be a reasonable use of land but that the building would be overbearing and would transform the outlook from two properties with the benefit of the covenants. They found that the covenants gave the respondents a practical benefit of substantial advantage and therefore found they did not have any discretion to modify them.
This case is a reminder that the Upper Tribunal look at the benefit conferred by covenants seriously and even with planning permission being granted will not always modify or discharge cumbersome covenants. Developers need to be aware when purchasing or optioning land of all of the rights affecting their title.
Thriving on a Prayer
The Church of Scientology has won a case relating to business rates exemption for places of public religious worship in the Upper Tribunal (UT) in The Church of Scientology Religious Education College Inc v Andrew Ricketts (Valuation Officer)  UTLC. The UT allowed an appeal from the Church and deemed that two of its buildings were largely exempt from business rates under the Local Government Finance Act 1988 (the 1988 Act).
The 1988 Act requires that in order for a building to be exempt from business rates it must be either a place of public religious worship (or similar) or be used for administrative work or offices relating to the organisation of such public religious worship. The Church's buildings consist of a small chapel, bookshops, a cinema, personality test facilities and a 'Purification Area' (where a person may enter into a 20-30 day programme of exercise to flush out residual toxins within the body.)
In June 2021 the Valuation Tribunal had agreed with the Valuation Officer, Andrew Ricketts, that the Church's buildings should not be exempt under the 1988 Act as although worship took place within the buildings, it was a minor part of the intended activities. The chapel is a small section of the overall structure, and was argued to be insufficiently open to the public, conventional worship not forming part of the day to day routine of scientologists on site. The Valuation Tribunal deemed that the Church failed to pass the 'invitation test' and did not make adequate efforts to advertise its worship as evidenced by its failure to attract non-members at its regular Sunday service, and the exterior of the Church was felt to be insufficiently church-like aesthetically.
However, the UT rejected these arguments, determining that the public's response to the invitation of the church to attend worship was not a factor, only that the public invitation existed and that the church was open to any person who may accept it. In his judgement, Martin Rodger KC also disagreed with the Valuation Tribunal's assessment of the aesthetics of the building, writing that it has "imposing Portland stone façade features balconies and flagpoles which would not look out of place in the Vatican". As the UT had established the chapel was a place of public worship and not private, the appeal by the Church was allowed. The majority of the rest of the building was deemed supplementary to the worship within the chapel and therefore exempt from business rates.
The decision by the UT could be seen as significant for legal recognition of religions which do not follow the same traditional structures and activities as Christianity, Judaism or Islam, and reflects the diversity of religious life within the UK.
Insights from around the firm
Restoring Britain's lost rainforests
A fifth of Britain was once covered by rainforest. Unfortunately, great swathes of rainforest in Britain were destroyed over the centuries for timber and fuel. Temperate rainforests are often made up of sessile or Atlantic oak, which unlike its English cousin, is bent and twisted, a supporting structure to the plants that hang off them. However, hidden in remote corners of Britain, fragments still survive. Conservationist Guy Shrubsole explains how he is mapping and protecting them, aiming to double their size in a generation. Simply put, temperate rainforests are woodlands so damp and mild that plants grow on other plants. Or, as Shrubsole says, “life grows on other life”. Ecologists define rainforests as technically receiving more than 1,400mm of rain throughout the year.
The remaining fragments of rainforest are on the west Atlantic coast of Scotland; Snowdonia and the Elenydd in Wales; and in the Lake District, Forest of Bowland, Yorkshire Dales, Pennines and in the West Country in England, collectively covering just 0.5 per cent of Britain. Shrubsole is currently attempting to map what temperate rainforest still exists, using crowdsourcing to create a clearer picture to ultimately help aid their conservation: only around a quarter of Britain’s remaining temperate rainforest is currently protected.
The Wildlife Trusts, a conservation charity, recently embarked on a 100-year initiative to protect and enlarge Britain’s temperate rainforests. The Alliance for Scotland’s Rainforest, and organisations like Plantlife, together with landowners like the National Trust are conserving existing fragments and letting them expand again. If supported by the government, Shrubsole estimates that rainforest cover could double in a generation through natural regeneration, and has called for a National Rainforest Strategy. If people want to get involved, there is a form on the Lost Rainforests website to send photos of rainforests they’ve spotted.