An Ignis Fatuus: covenants related to land

It is undergraduate law that a covenant can only be enforced by land that benefits from it. It is of the nature of local authorities that they possess land for the purpose (in policy terms) of public benefit and may therefore wish to burden land with covenants that they may not be able to enforce due to the pattern of land ownership. Step forward section 33 of the Local Government (Miscellaneous Provisions) Act 1982.

The precise scope of this section and its enforcement is rarely considered judicially and Practical Law (everyone’s go‑to) has materials that are frankly somewhat jejune. This note therefore considers how and when to use this section, and in particular looks at what may be an unclarity or illogicality in the drafting of the statutory terms of its enforcement.

The first thing to say is that section 33 applies only to obligations imposed pursuant to a document “under seal”. Therefore, whilst there are such things as equitable covenants that bind future transferees by virtue of that suite of connected elegancies that is the 1925 property legislation, it is unclear that the words of this statute would apply thereto.

Next points: its scope, wider in 1982, was later amended to exclude covenants which pertain to development. “Development” is not narrowed in the normal way of things to its meaning within section 55 of the TCPA, and therefore must have its common‑or‑garden meaning.

What then is covered? The obligation must relate to works done on the land or “anything done on or in relation to land”.

Who does this apply to? Any “principal council”, though that phrase has since been amended to include such less likely beneficiaries as Economic Development Boards under the Levelling‑up and Regeneration Act 2023 and the London Fire Commissioner.

Now come the thorny questions. Whilst this definition of what counts as a covered obligation might seem fairly clear, difficult issues arise when it comes to the protection of open space and the securing of overage. Both of these issues have recently arisen in my own practice and are often central to the public‑realm priorities of local government.

Let us turn to the remedy that the section envisages in the case of breach, for it is this remedy that causes the difficulty. If there is a breach, the statute allows the claimant to “enter onto the land” to do anything the covenant requires to be done. This remedy appears capable of enabling a covenant to protect open space, since “keeping Blackacre as open space in perpetuity as open space” would seem, in the ordinary meaning of the words, to be something that the covenant requires to be done. However, it is a little stretch to say that entering onto the land would secure this, and even if one disagreed with that view, the remedy clause only bites if there is a breach of duty. The duty itself is merely that “anything be done on or in relation to the land”, which is a much larger stretch for keeping Blackacre as open space. It is therefore an example of a statute where duty and remedy for breach are not perfectly aligned.

Still greater problems lie when we consider overage. Here, both limbs of the section are difficult to interpret as allowing the protection of an overage arrangement. Funders can be suspicious of a legal charge to secure overage, so other mechanisms may be viewed as necessary.

These uncertainties are not merely academic. Informal practitioner commentary reveals genuine hesitation as to whether section 33 can sustain obligations whose substance is financial rather than physical. One experienced commentator, reflecting on the use of section 33 to secure overage, observed that while the provision appears well‑suited to securing the carrying out of works or regulating the use of land where the authority has no benefitting land, its application to overage is far less clear. The difficulty lies in the breadth of the wording “or is otherwise connected with land” in section 33(1)(b), which is capable of being read both as excluding pure payment obligations and, conversely, as wide enough to include them. The same commentator candidly concluded that, given the absence of judicial authority and the opacity of the statutory language, counsel’s opinion would be prudent where section 33 is being relied upon to underpin an overage arrangement.

That uncertainty itself is telling: section 33 is drafted as though it were a works‑enforcement mechanism, yet is often pressed into service for objectives - such as overage - whose enforcement logic does not sit comfortably with the statutory remedy.

An important qualification to the exercise of these powers is the limited assistance provided by the Interpretation Act 1978 to the phrase “any persons”. The exercise by the local authority of the remedy must be preceded by notice to “any person” with an “interest” in the land, with a notice period of 21 days. In the absence of authority, there is an argument that “any person” could mean “all persons”, potentially a large category. An “interest” is also not a defined term and so potentially includes mortgagees in possession and others with equitable interests.

Careful consideration of the facts in hand, and even more careful consideration of drafting, should therefore be exercised when relying on section 33. It can be a useful tool in some contexts, but an engine of much entrapment in others.

Daniel Andersson is a Property Solicitor at Tandridge District Council.