LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF AN APPLICATION
R/20/1992
BETWEEN
EDMUND G N McMULLAN, JAMES GILMORE, DESMOND J ROBB - APPLICANTS
NO RESPONDENT
Lands Tribunal for Northern Ireland - Mr A L Jacobson FRICS
Belfast - 27th October 1992 and 2nd November 1992
This was an application under Article 5 of the Property (Northern Ireland) Order 1978 ("the
1978 Order") for the extinguishment of a restrictive covenant contained in an Indenture of
Conveyance dated 14th November 1929 between William Armstrong of the one part and
James McConkey of the other part. The premises in that indenture included, inter alia, No
75-77 Antrim Road, Newtownabbey, Co Antrim which is the subject of this application. Mr
McConkey was to hold the premises for ever indemnified against any payment of head rent.
A covenant in that Indenture of Conveyance reads:"... And Further that he the said James McConkey his heirs and assigns shall not erect nor
permit to be erected at any time hereafter any buildings on the premises hereby conveyed
except dwelling houses with offices conveniences and other amenities thereto Provided that
the said James McConkey his heirs and assigns shall have the option at any time with five
years from the Seventeenth day of June One thousand nine hundred and twenty nine at his
or their discretion on payment of a further sum of Twenty pounds to the said William
Armstrong his heirs or assigns of erecting one shop on said premises hereby conveyed And
also will not erect or permit to be erected at any time hereafter any building on the premises
hereby conveyed of a less annual Poor Law Valuation than Eighteen pounds Provided that
the foregoing covenant with regard to Poor Law Valuation of buildings to be hereafter
erected on said premises shall not apply to any building erected by the said James
McConkey his heirs sub-grantees sub-lessees or assigns on said premises on or before the
First day of June One thousand nine hundred and thirty two which shall be erected at a cost
of not less than Five hundred pounds and shall be of a not less Poor Law Valuation than
Ten pounds nor to any building hereafter to be erected in substitution for any such building
Provided that any such substituted building shall satisfy the said two requirements and also
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will not use or permit to be used at any time hereafter any dwelling house or building on the
premises hereby conveyed except the one shop hereinbefore mentioned for the purposes
of trade or business or otherwise as a private residence with such offices and conveniences
and other amenities thereto as aforesaid ..."
Miss Deirdre Magill, Solicitor (of Messrs Tughan & Co, Solicitors) submitted affidavit
evidence relating to the extensive enquiries made in order to discover the original lessor Mr
William Armstrong, his heirs or assigns. Those enquiries included:(a)
Requisition of Title dated 9th June 1992 to the solicitors for the Vendors who had sold
their leasehold interest to the Applicants. Requisition No 9 read "Conveyance dated
14th November William Armstrong of the one part and James McConkey of the other
part contains a restrictive covenant to the effect that James McConkey his heirs and
assigns shall not erect any buildings on the premises thereby conveyed except
dwelling houses with offices, but with the option of erecting one shop.
Please
confirm that the Vendor will remove said covenant, at his own cost".
The Vendor's Solicitors Messrs Cunningham & Dickey replied on 10th June 1992:"With reference to Requisition 9 we cannot see how it is the responsibility of the
Vendor to seek to remove a Covenant which has been in operation since 1929 and
of which so far as the Vendor is aware there has been no breach of same".
(b)
Telephone conversations with Messrs Cunningham & Dickey, regarding who was
entitled to the benefit of the covenant, referred to Indenture of Lease dated 26 th May
1978 between James Smith and Robert Millar. That Lease of Nos 75-77 Antrim
Road was for a term of 10,000 years from 1st March 1978 subject to one penny per
annum (if demanded). It was subject to performing and observing all the covenants
and conditions on the Grantee's part contained in the Principal Indenture of
Conveyance of 1929.
(c)
Following door-to-door inquiries by one of the Applicants, Mr Gilmore, it came to light
that a Mr Wallace of No 71 Antrim Road paid his ground rent to estate agents
McConnell Martin who collect for a Mrs Smith (widow of James Smith the lessor of
the 1978 Lease). Information from Mr Wallace also included that Messrs Crawford &
Lockhart, Solicitors had acted for him in the purchase of No 71 Antrim Road.
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Letters dated 6th July 1992 to McConnell Martin and to Crawford & Lockhart brought
the information from the firm of solicitors that the Grent Trust had the lessor's interest
in various properties in the area. Further enquiries of the Grent Trust showed that
the Trust did not own an interest in Nos 75-77 Antrim Road (the subject of this
application).
Messrs McConnell Martin referred to Mr F Haugh, Solicitor of Messrs McKenzie &
Dorman.
He informed that Mrs Smyth was indemnified against any payment of
ground rent but could give no further assistance.
(d)
Advertisements were placed in the News Letter on 5th August 1992 and in the Belfast
Telegraph on 8th August 1992 requesting that any person claiming any benefit from
the covenant contained in the Conveyance or claiming to be related to the Head
Lessor to contact Miss Magill.
Both newspapers circulate generally throughout Northern Ireland.
No replies were received.
(e)
As a result of the first day of hearing a search in the Probate Registry was made (for
William Armstrong).
The search showed that William Armstrong died on 11 th
February 1941. Administration of his estate was granted to his son (one of the
executors) Mr Robert Angus Emerson Armstrong of No 120 Ballymoney Road,
Ballymena on 20th May 1941.
A search in the probate Registry was then made (for Robert Angus Emerson
Armstrong) but nothing showed up.
A check on No 120 Ballymoney Road proved to be unfruitful.
Miss Magill called Mr James Gilmore (one of the Applicants) and Mr John Lewis Frazer
FRICS (of Messrs Frazer Kidd & Danker, Chartered Surveyors) to give evidence.
The following facts were proved to the Tribunal:1.
The lands known as Nos 75-77 Antrim Road, Newtownabbey, Co Antrim formed part
of the lands contained in an Indenture of Conveyance dated 14 th November 1929
("the 1929 Conveyance") between William Armstrong of the one part and James
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McConkey of the other part held forever subject to the covenants and conditions
therein contained.
That 1929 Conveyance contained the restrictive covenant which is the subject of this
application.
2.
An Indenture of Lease dated 26th May 1978 ("the 1978 Lease") between James
Smyth of the one part and Robert Millar of the other part was made subject to all the
covenants and conditions contained in the 1929 Conveyance. The 1978 Lease was
for 10,000 years from 1st March 1978 subject to one penny (if demanded) per
annum. The premises comprised in the 1978 Lease were Nos 75-77 Antrim Road.
3.
The Applicants, who are Trustees for the South Side Trust purchased the leasehold
premises at £34,000 on 20th July 1992.
4.
On the site had been erected a dwelling house and a shop. That development
conformed to the covenants and conditions in the 1929 Conveyance - a fine of £20
being paid to the Grantor when the Grantee erected the shop. By the time of the
purchase by the Trustees:(a)
There had been a terrorist shooting at the shop and the premises had been
vacant since 1989. The original lessee had died and his widow Mrs Millar,
who was the owner/occupier at the date of the shooting, did not wish to return.
(b)
The premises were vandalised, had become completely dilapidated and were
becoming dangerous.
The Applicant Trustees obtained permission to
"demolition of shop and dwelling and construction of church hall and car park"
on 25th June 1992. The Trustees obtained that permission on behalf of the
"South Side Meeting Room".
(c)
The premises have been demolished and the site had been fenced at an
approximate cost of £14,000.
(d)
Extensive enquiries by the Trustees and Miss Magill, (Solicitor) on behalf of
the Trustees have not been able to discover the whereabouts of the heirs and
assigns of the Grantor (in the 1929 Conveyance) Mr William Armstrong who
died on 11th February 1941.
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5.
On the premises contained in the 1929 Conveyance have been erected through the
years some sixty dwelling houses. None of the nearby owners object to a hall (used
solely for religious purposes) being erected on the site - the Trustees have
canvassed the nearest owner/occupiers most of whom welcome the development.
DECISION OF THE LANDS TRIBUNAL
The Tribunal derives its power to modify or extinguish impediments from Article 5(1) of the
1978 Order viz:"The Lands Tribunal, on the application of any person interested in land affected by an
impediment, may make an order modifying, or wholly or partially extinguishing, the
impediment on being satisfied that the impediment unreasonably impedes the enjoyment of
the land or, if not modified or extinguished, would do so."
In determining whether the Tribunal should use those discretionary powers the Tribunal
shall take into account those matters in Article 5(5) of the 1978 Order, as follows:"(a) the period at, the circumstances in, and the purposes for which the impediment
was created and imposed;"
Undoubtedly in 1929 (ie prior to the Planning (Interim Development) Act (Northern Ireland)
1944) the purposes for which the covenant was created was an early attempt by the
developer to ensure that his development was properly planned and used according to his
wishes and plans.
"(b) any change in the character of the land or neighbourhood;"
The neighbourhood is developed with private housing, and there is no change in that
character. The land itself was developed with a house and shop but is now building land.
The erection of a hall used for religious purposes would not change the character of the
neighbourhood, in any way. None of the occupiers of nearby houses have objected nor has
any difficulty been raised when the Trustees informed verbally the various owner/occupiers
of the intention to erect such a hall.
"(c) any public interest in the land, particularly as exemplified by any development
plan adopted under Part III of the Planning (Northern Ireland) Order 1991 for the area
in which the land is situated, as that plan is for the time being in force;"
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The area is fully developed. The development plan for the area shows no action proposed.
There is no other public interest shown by any Department or District Council in Northern
Ireland.
"(d) any trend shown by planning permissions (within the meaning of that Planning
Order) granted for land in the vicinity of the land, or by refusals of applications for
such planning permissions, which are brought to the notice of the Tribunal;"
No planning refusals were brought to the Tribunal's notice. The planning permissions in the
vicinity generally were for extension and/or modernisation of existing dwellings. Planning
permission for the erection of this church hall on Nos 75-77 Antrim Road was granted on
25th June 1992.
"(e) whether the impediment secures any practical benefit to any person and, if it
does so, the nature and extent of that benefit;"
There is no apparent practical benefit to any person.
"(f) where the impediment consists of an obligation to execute any works or to do
any thing, or to pay or contribute towards the cost of executing any works or doing
any thing, whether the obligation has become unduly onerous in comparison with
the benefit to be derived from the works or the doing of that thing;"
That part of this covenant regarding cost of erection and minimum Poor Law Valuation is
obsolete and is spent.
"(g) whether the person entitled to the benefit of the impediment has agreed either
expressly or by implication, by his acts or omissions, to the impediment being
modified or extinguished;"
Mrs Smyth, widow of the lessor in the 1978 Lease, collects ground rent as lessor for No 71
Antrim Road, but as far as No 75-77 Antrim Road is concerned she is indemnified against
payment of head rent and had no knowledge of the whereabouts of the person who had the
benefit of the covenant.
Extensive enquiries to find that person were made but in vain. There were no replies to the
two newspaper advertisements.
Miss Magill submitted that by his omissions, the person who is entitled to the benefit (if any)
of the covenant, has impliedly agreed to the impediment being modified or extinguished.
"(h) any other material circumstances."
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Mr Frazer's opinion was that the vacant premises had been as used by some members of
the public so as to become a public nuisance. Nearby owner/occupiers welcome a hall
being erected and used for religious purposes. There is no market for a house and shop to
be rebuilt on this site since the terrorist incident some years ago.
The Tribunal agrees with Mr Frazer.
Taking account of all these matters the Tribunal is satisfied that the impediment
unreasonably impedes the enjoyment of the land.
Yet if the covenant were to be extinguished such action would affect the whole of the land
which was the subject of the 1929 Conveyance. The only way the Application can be
granted is by amending the covenant so it does not apply to Nos 75-77 Antrim Road in the
following words:"and that the following portion of the ground should stand released from this covenant viz:All that piece or parcel of ground being a portion of the lands comprised in the said recited
Indenture of Conveyance dated 14th November 1929 which said lands are more particularly
contained in Lease dated 6th May 1978 and therein described as No 75-77 Antrim Road,
Newtownabbey".
ORDERS ACCORDINGLY
18th November 1992
Mr A L Jacobson FRICS
LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances:Deirdre Magill (Solicitor) of Messrs Tughan & Co, Solicitors for the Applicants.
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