IN THE HIGH COURT OF JUSTICE	Case No CH 1997 T 481
CHANCERY  DIVISION

									Royal Courts of Justice
									The Strand
									London WC2

									Wednesday  29  July  1998

	B e f o r e:

	HIS  HONOUR  JUDGE  RICH  QC
	(Sitting as a Judge of the High Court)

B E T W E E N:

		THAMES WATER UTILITIES LTD		Plaintiff

			   - v -
	
		(1)  OXFORD  CITY  COUNCIL			
		(2)  OXFORD UNITED FOOTBALL CLUB LIMITED		
									Defendants
							
	____________________

	Tape Transcription by Smith Bernal Ltd
	180 Fleet Street, London,
	Telephone 0171 404 1400
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	____________________

MR T ETHERTON QC and NR S SEITLER (instructed by Messrs Ashurst Morris
	Crisp, London EC2A 2HA) appeared on behalf of THE PLAINTIFF

MR A HILL-SMITH (instructed by the Head of Legal and Committee
Services, Oxford City Council, Oxford OX1 4EY) appeared on behalf of
	THE FIRST DEFENDANT

	____________________

	J U D G M E N T
	(As Approved by the Court)
	____________________

Wednesday  29  July  1998

THE JUDGE:  By lease dated 23 June 1978 the defendant council had demised to the plaintiff's predecessor authority certain land at Blackbird Leys Farm for a term of years expiring in September 2037.  On 24 May 1984 the council obtained a planning permission over land which included part of the land demised, for development in accordance with their application which was described as follows: 

		"Outline application for 14.6 hectares of housing (approximately 1200 dwellings) with community facilities including first school, shops, meeting hall and public house. 10.5 hectares of landscaped open space. 21.4 hectares of recreation land, which could include pitches, cricket green and golf course.  11.3 hectares of industrial land.  Development to be served by new peripheral road between B480 and A423 at land south of Blackbird Leys, Minchery Farm and Littlemore, Oxford between the Watlington Road (B480) and A423 Littlemore/Sandford/Garsington."

A plan accompanying the permission indicated the broad location of the different users described in the separated sentences.  Being an outline permission it was subject, amongst others, to a condition at paragraph 2(1) of the Schedule, namely that the layout of any part of the site to be developed, including roads and buildings, number of buildings, access to that part of the site and buildings and surface water drainage were to be submitted to, and approved in writing by, the local planning authority before development was commenced.     	  	    Nevertheless, the permission granted in respect of the site as a whole did not, in my judgment, include a permission for recreational buildings, other than such as might be ancillary to the use of the 21.4 hectares of recreational land for open space recreation such as was referred to in the description of the permitted development.  Any greater building works would require a further permission, as opposed to mere approval under the permission.
	    By an agreement dated 31 March 1993 between the council and the plaintiff (then called Thames), it was agreed at clause 2.3: 

		"In order to further facilitate the development the council and Thames have agreed inter alia that:

		2.3.1  	Thames will --

		2.3.1.1	surrender to the council by operation of law its leasehold interest in the green land and other land."

The lands there described are shown on a plan attached to the agreement.  The green land effectively coincides with the recreational land shown on the planning permission.  It was further provided at clause 2.3.2.2 that the council will enter into a restrictive covenant not "during the restricted period to use (a) the green land or any part otherwise than for recreational and ancillary purposes".  Other restrictive covenants were applied to the other pieces of land referred to in the agreement.
	    The restricted period was the period to the expiry of the term of the lease which was to be surrendered.  The agreement then provided for the documentation of an exchange of land, including the transfer to Thames of the freehold of some orange land.  Clause 8 provided, under the head 'Equality of Exchange':

		"The mutual release of the parties' obligations under the lease in respect of the green land and the blue land and a transfer of the orange land and the brown land and the imposition of restrictive covenants shall be in the form of the documents annexed hereto which will be prepared by Thames' solicitors and executed in duplicate and completed on the completion date (as to which time is of the essence) when the council shall pay to Thames the sum of £1,500,000 ...." There is then in brackets "exclusive of value added tax", but those words have been struck out. ".... by way of equality for the exchange of the parties' interests in the various properties the subject of this agreement.

		8.2  Thames shall not be bound to complete the documents referred to above until it has received payment of all sums payable by the council pursuant to the terms of this agreement at the time and in the manner specified by this agreement."

	    Thus the Deed of Exchange to which I will next refer was executed as part of the larger transaction, as was agreed in the agreement, only after the payment of the £1.5m in respect of which the provisions as to VAT had been struck out.  Thus the VAT invoice, which documented the payment, is in my judgment part of the same transaction also and may be prayed in aid to construe the other documents.  That invoice showed that different parts of the total site had had attributed to them different sums: the blue land, a sum of £1,481,000; whereas the green land had attributed to it an amount of £100,000 (in each case exclusive of VAT).  The orange land, which was to be transferred by the council to Thames, was likewise given a total value of £100,000.  It is broadly an area comparable to the area of the green land. 
	    On behalf of the plaintiff, Margaret Wray has deposed that the invoice apportions the £1.5m.  It records, she says, the amount payable for the blue land as £1,481,000 plus VAT.  The site area of the green land was 53 acres, giving a value of £1,886.79 plus VAT per acre.  The site area of the blue land was 30.5 acres, giving a value of £48,557.38 plus VAT per acre.  Those I take to be facts which are part of the background material capable of being taken into account in the construction of the documents.  She goes on to say in her affidavit that the difference in value represents the fact that the blue land was to be used by the first defendant free from any restrictions, whereas the green land was to be subject to the restrictive covenant.  I think that it is a proper inference at least that the difference in price represents the difference in development value, but I do not think that I am entitled to take into account the deponent's view as to the reason for the difference, save insofar as it can be inferred from the documents.
	    The Deed of Exchange was executed also on 31 March 1993.  It is expressed to have been made in pursuance of the terms of the main agreement and in consideration of the terms thereof, including the transfers hereinafter contained and of the sum of £1.5m.  Its definition clause includes a definition of the word "development", which is the same as in the agreement -- that is to say the development permitted by the 1986 agreement which the exchange of land was said by the agreement to facilitate.  However, the agreement itself makes no further use of that word but, since it is made in pursuance of the terms of the main agreement, it is, in my judgment, to be construed as likewise for that purpose.
	    The Deed of Exchange contains a covenant by Thames, said to be for the benefit of the land, the subject of the transfer, for surrender to the council, not to use the orange land otherwise than for purposes set out in clauses 4.11 and 4.12.  Those are agricultural and ancillary purposes and for sludge spreading, providing however that on the area of the orange land which is within 200 metres from the boundaries of the blue land, any such sludge spreading is carried out only with digested sludge and that the digested sludge is ploughed in on the same day that it is spread.  The restriction on the manner of sludge spreading may well be said to be for the protection of the council's lands, but it is difficult to imagine how a covenant not to use otherwise than for sludge spreading can be so described.
	    By clause 4.3: 

		"The council for its part, so as to bind the green land, the red land and the yellow land in whosoever's hands the same may come, and so that the covenant shall be for the benefit and protection of the orange land and any part or parts thereof hereby covenant with Thames that the council and those deriving title from or under it will not during the restrictive period use or permit or suffer to be used -- 

		4.3.1 the green land or any part or parts thereof otherwise than for highway or recreational and ancillary purposes."  [The covenants in respect of the red and yellow land are respectively for recreational and ancillary purposes or community land with ancillary facilities and for recreational and ancillary purposes or for housing and ancillary purposes.]

Again I comment that it is difficult to see how these covenants may be said to enhance or protect Thames' enjoyment of the agricultural and sludge spreading orange land for whose benefit or protection it is said to have been taken.
	    It seems to me to be a necessary inference that these mutual covenants were in reality intended to give to each party a right to restrain development of the other's land, not for the purpose of the enjoyment of their own land so much as for the purpose of restraining development more valuable than had been the basis of valuation on the exchange of lands in accordance with the agreement.  It is, in my judgment, in that light that the covenant in clause 4.3.1 must be construed.
	    In case such covenants properly construed might inhibit the use of the green land, the council resolved in March 1996 to accept a recommendation as follows:

		"That the Estates Committee and Planning Committee agree that the Oxford United Stadium and adjoining leisure and employment sites shown on the attached plan are appropriated to planning purposes.  [The sites are part of the green land.]

		(b)  The Planning Committee agrees the use of powers contained in section 237 of the Town and Country Planning Act 1990 to override the restrictive covenant on this land if necessary."

Thereafter, on 6 August 1996, the council granted a lease of part of the green land to the second defendants in consideration, inter alia, of the covenant to build a stadium thereon and to pay both a premium of £900,000 and substantial rents.  On 9 August the council, which had in 1991 (that is between the 1986 planning permission and the 1993 agreement) become the planning authority in respect of the land, granted to the second defendant a planning permission for development described as: 

		"Erection of 15,000 seater stadium with ancillary facilities including supporters club, health and fitness centre and restaurant.  Provision of 895 car parking spaces around stadium, 525 remote parking spaces north of brook and 530 car parking spaces on land designated for leisure and employment use, access from Grenoble(?) Road roundabout and other road works."

	    By an amended originating summons the plaintiff seeks declarations as follows: First, a declaration that, upon the proper construction of the agreement dated 31 March 1993 and the deed of exchange dated 31 March 1993, both made between the plaintiff and the first defendant, and upon the proper construction of section 237 of the Town and Country Planning Act, the first defendant is not entitled to use or permit or suffer to be used the land defined in the agreement and deed of exchange as the green land or any part of it otherwise than for highway, recreational and ancillary purposes during the restricted period.  Secondly, a declaration that upon the proper construction of the 1993 agreement and deed of exchange the following would be in breach of the restrictive covenants: (a) the erection and/or use of the green land of the 15,000 football stadium with ancillary facilities, including supporters club, health and fitness centre, restaurant and car parking; or alternatively (b) carrying out on the green land works for the building of premises to be used as, or the use of premises on the green land for (1) health and fitness centre; (2) a restaurant; (3) a conference and seminar centre; (4) offices (insofar as they are not for the administration of the football club); (5) a hotel; (6) a bingo hall; (7) a cinema; (8) a petrol station.
	    The amendment added a paragraph to (a): further or alternatively (a) a declaration that the defendants are not entitled to rely upon section 237 as authorising any such work on or user of the green land as is mentioned in paragraph (2) above; (b) a declaration that the erection of housing on the green land and the occupation thereof amounts to a breach of the restrictive covenant and that the defendants are not entitled to rely on section 237 as authorising any such works on, or user of, the green land.
	    The declaration under paragraph 2(A)(b) as to the erection of housing has not, in fact, been canvassed before me.  Mr Hill-Smith for the defendant accepts that it would involve a breach of the covenant, which I have recited, and that the entitlement to rely on section 237 will be determined on the same basis as in respect of the football stadium use.
	    The amendments to which I have referred were made by agreement on the basis that the issue raised by them should be set out in a letter.  That letter identified, as the issue so raised, whether the defendants are precluded from relying upon section 237 by virtue of estoppel and/or ultra vires in circumstances where the first defendant had itself granted the covenant.  This case was not elaborated or supported by affidavit and Mr Etherton's skeleton argument adumbrated an argument based on an implied term rather than estoppel or ultra vires.  In the circumstances I directed that some particularisation be given overnight after the first day of the hearing.  For reasons of convenience and shortage of time in respect of an expedited hearing I have not, in fact, heard full argument on the effect which the circumstances under which the covenant came to be granted may affect the defendant's entitlement to invoke statutory powers.  This judgment is therefore directed only to the construction of the agreement and of section 237, as raised in paragraphs (1) and (2) of the originating summons.
	    
The Construction of the Covenant
	    The expression "recreational and ancillary purposes" may be extremely wide in its scope and meaning.  I have been referred to an Australian case Attorney General for New South Wales v Cooma Municipal Council [1962] NSWSR 663, and to Credit Suisse v Borough Council of Allerdale [1995] 1 Lloyd's Rep 315.  In the latter case Colman J cited the Shorter Oxford English Dictionary definition of "recreation" as including the "action of recreating (oneself or another) or fact of being recreated by some pleasant occupation, pastime or amusement."
	    Having regard to the context, the wide range of uses classified as not involving development in Class D(2) of the Town and Country Planning (Use Classes) Order 1987 might also be claimed, as Mr Hill-Smith suggests, to be of relevance.  I, however, have no doubt that, whilst watching football may be a recreational activity within such meaning and that playing it professionally could not even on such wide definition be construed as being so, these are not the determinative bases for construing this covenant.
	    Having regard to the context in which this covenant was entered into, I do not think that the words "recreational purpose" are to be construed widely.  A reasonable bystander, knowing the facts of the transaction and the purpose of the exchange of covenants as declared in the agreement and apparent from the deed, would look for some limitation on the widest meaning of the words employed.  I accept that a vendor who wishes to restrict a purchaser's right to use land by imposing a restrictive covenant, must, if he is to protect himself, choose adequate words.  That does not, however, mean that the intention of the parties, as made plain by the totality of the relevant documentation, is to be disregarded.  It is apparent that the purpose of the restriction was to reflect the limited use to which the area could be put by virtue of the extant planning permission of 1986.  The land might be developed otherwise than in accordance with that planning permission, but the limitation of use on each area distinguishes the housing and community facilities areas from the recreational area.  
	    The scope of the permission may be a matter of debate, but that is often the case with a user covenant: for example, the scope of the covenant against trade or business often attracts argument.  At the extreme, however, such as is, I think, raised by the proposals in this case, it is easy to recognise what would involve a breach of the covenant so construed.  As I construe the planning permission, it would not exclude all built development, but it does not include permission for major buildings, even if their function is recreational, as opposed to the erection of buildings ancillary to the recreational use of the land for open-air recreation.  This is, in my judgment, made clear by the illustrative kinds of recreation which the planning permission refers to as being envisaged on the recreational land: pitches, cricket green and golf course.
	    In my judgment, building so limited is what was meant in the agreement and the Deed of Exchange by use of the land for recreational and ancillary purposes.  Building on a larger scale would therefore, in my judgment, be in breach of the covenant properly construed.  My reliance on the planning permission as an aid to the construction of the covenant does not mean that an approval must, in fact, be obtained under the planning permission in order to satisfy the covenant.  It means only that the use should not go so far beyond what was envisaged in the planning permission as to need a new planning permission.  In my judgment, the erection of a 15,000 seater stadium clearly goes beyond this.  
	    This construction of the covenant would not preclude the charging of money for the use of the land for recreational activity either by the local authority or by, for example, a club engaged in such activity.  The uses described in paragraph 2 of the originating summons, however, are not intended to be uses by the second defendant as lessee of the land in order to provide recreation for the second defendant.  The second defendant's intention must, in my judgment, be relevant because there is no doubt that it will be the second defendant which is making use of the land if the proposals are carried out.  The second defendant is proposing to occupy and use the stadium in order to accommodate, inter alia, professional football matches at which spectators will, arguably, "recreate themselves" by watching.  It may be said that such use is therefore in part for the recreational purpose of the spectators.  But the covenant is not to use the land otherwise than for a recreational or ancillary purpose.  The commercial exploitation of the game of football by hiring players and charging spectators is not itself a recreational purpose.  Nor is it merely ancillary to the recreational purpose of the spectators.  In my judgment for these reasons the uses contemplated involve a breach of the covenant.
	    The more difficult question is whether, on a true construction of section 237 of the Town and Country Planning Act 1990, that is a breach which is authorised as a result of the appropriation of this land for planning purposes.  I think that it is helpful to set this issue in its context.  Although formally the originating summons seeks an injunction, it is not that claim that comes on for expedited hearing.  It is the issues which I have identified which have by consent been set down for trial as preliminary issues.  This is, I have no doubt, because the real issue is how much the defendant should pay for release of the covenants insofar as their proposed development involves breaches of the covenants not authorised by section 237.  Section 237 provides for compensation.  The matters to be compensated, if section 237 does apply, are in issue and I shall discuss them.  But it is not in dispute that the basis of assessment of compensation for injurious affection consisting of development in breach of covenant is to be determined as set out in Wrotham Park Estates v Hertsmere [1993] 2 EGLR 15, that is the diminution in value of the dominant tenement arising from the breach of covenant.
	    The plaintiff's orange land will not, I suspect, be damaged one jot by any development on the green land.  What the plaintiff will have lost, if the defendants are authorised to carry out their proposed work on payment of compensation so determined, is the opportunity to extort (if that is not too emotive a word) a share of the development value for relaxing the covenant.  
	    In the light of the history of the covenant it may seem that justice should favour preserving that opportunity.  If it does it must, however, be by the route that those circumstances in some way affect the council's right to rely on section 237 as properly construed -- the issue which presently stands adjourned.  The true meaning of section 237 must be arrived at without such consideration.  It is a feature of compensation for injurious affection that it does leave uncompensated a number of losses which arise in different cases.  Temporary loss and loss of profit are amongst those which have been held to be excluded from the ambit of compensation for injurious affection.
	    I must approach the point of construction of section 237 on the basis that Sir Thomas Bingham MR indicated in the Wrotham Park case, where he said:

		"For my part, it does not greatly concern me if it be the case that the landowner does not receive perfect compensation so long as he is compensated for any diminution that he can demonstrate in the value of his remaining estate.  If a landowner in such a position is required to make some sacrifice in the wider communal interests represented by the local authority, then it would seem to me that that is a sacrifice which falls very far short of anything which could be called extortion."

If the local authority considers that the wider public interests require the provision of a football stadium for Oxford United Football Club, and section 237 applies, the plaintiff must suffer the sacrifice.
	  
The construction of section 237
	    Mr Etherton's submission, as adumbrated in his skeleton argument, was simple.  He said at paragraphs 25 and 26:

		"Section 237 empowers a local authority among other things to override a restrictive covenant to enable the work specified in section 237 to be carried out, namely: 'The erection, construction or carrying out or maintenance of any building or work on land'.

		Section 237 does not empower a local authority to override a restrictive covenant restricting use of the land otherwise than in respect of the works expressly mentioned in subsection (1) of section 237.  This is reflected in the terms of subsection (7) and in the limited scope of the compensation provisions of section 10 of the Compulsory Purchase Act 1965, re-enacting section 68 of the Lands Clauses Consolidation Act 1845 under which compensation cannot be claimed for injurious affection arising from use as distinguished from the execution of works."

He then referred to the Encyclopedia of Compulsory Purchase.  He says in his skeleton argument that it follows that if the plaintiff's construction of the restrictive covenant is correct then the passing by the first defendant of a resolution under section 237 did not and does not enable the green land to be used, as distinct from the carrying out of works and construction for purely private commercial profit in any of the ways mentioned in paragraph 2 of the amended originating summons or for housing as mentioned in paragraph 2(a).
	    On hearing that submission, I raised the question as to whether there was not a general power of statutory authorities to act in disregard of a restrictive covenant in the exercise of their statutory powers.  That has led, I fear, to a considerable excursion as to the basis and limits of that principle.  Mr Hill-Smith introduced the court to what appears to me to be a most useful and thorough work called Land Covenants, published in 1996 by Professor Scammel.  This makes a useful starting place to consider the principles involved.  Mr Hill-Smith adopts Professor Scammel's arguments.  At page 185 of his work Professor Scammel says: 

		"Before considering the points covered in the numbered paragraphs below, it should be pointed out that in relation to restrictive covenants the position of an acquiring body which has powers of compulsory acquisition is the same whether those powers are actually invoked or whether the land in question is acquired for the statutory purpose by voluntary agreement."

For that proposition he cites two authorities to which I will refer in detail in due course, Kirby v School Board for Harrogate [1896] 1 Ch 437, and Brown v Heathlands Mental Health National Service Trust [1996] 1 All ER 133.  The proposition that he advances in that paragraph is, however, common ground before this court, although the precise effect of appropriation for planning purposes, as opposed to acquisition by agreement, is the matter to which I must return after seeking to set out the more general principles with which Professor Scammel deals in his numbered paragraphs.
	    In the first of his numbered paragraphs he makes the point that compulsory acquisition of the burden of land has no immediate effect on the continued existence of restrictive covenants.  This again is agreed.  It is the enforceability of the covenants which may be affected either by the purchase or the other exercise of powers. 
	    Professor Scammel then addresses the very problem raised by Mr Etherton's argument.  The passage is headed "The Extent of Permitted Non-Compliance".  He says:

		"Under this heading there are two questions to be considered: (a) does the permitted non-compliance extend not only to the carrying out of works on the land but also to a use of the land which is prohibited by the covenant?  (b) Does any particular non-compliance fall within the scope of a given statutory purpose?  Is a non-conforming use permitted?  

		Prima facie it might be thought that if the statutory purpose consists of the construction of works and their subsequent use, then both the construction and the use would be permitted in defiance of a restrictive covenant which prohibited them.  The difficulty arises because of the linking in Kirby v School Board for Harrogate and Long Eaton Recreational Grounds Company v Midland Railway Company [1902] 2 KP 574 of the permitted non-compliance with the availability of compensation under section 68 of the 1845 Act, the strong implication being that if compensation were not available under section 68 in respect of a given non-compliance then that non-compliance would not be authorised.  In each of those cases the non-compliance complained of consists of the carrying out of works of construction rather than the subsequent use of the works when constructed and a right to compensation in such a case was clearly provided for by section 68.  Until the decision of Luxmoore J in Re Simeon v Isle of Wight Rural District Council (1937) Ch 525, however, it was by no means clear whether a similar right to compensation existed where the non-compliance complained of consisted of a prohibited use.  Prior to this decision the Court of Appeal had held in Fletcher v Birkenhead [1907] 1 KB 205 that compensation was payable under section 6 of the Waterworks Clauses Act 1847 to persons 'injuriously affected by the construction or maintenance of works thereby authorised' not only in respect of the construction of the works but also in respect of the subsequent use of the works on the ground that the word 'maintenance' went beyond construction and was wide enough to embrace subsequent user.  In the Simeon case, which was concerned with section 68 of the 1845 Act, which provides compensation for persons whose interest in land is 'injuriously affected by the execution of works', Luxmoore J applied the same robust approach as the Court of Appeal in the Fletcher case and held that the words of the section were wide enough to include not only the construction of the works but also the use of those works.  In the course of his judgment Luxmoore J said:

			'The words of section 68 of the Lands Clauses Consolidation Act are not as in the case of section 6 of the Railways Clauses Act "construction of the works" but "execution of the works".  In my judgment the latter words are wider than the former and include the exercise, that is the carrying out and the execution of the appropriate statutory powers.'

		In the context of such compensation being available for non-enforceability in respect of the use of land acquired pursuant or against the background of statutory powers as well as in respect of works' construction on such land and consequentially the acquiring body being free to disregard a user restriction, it may be added that in the case of Re 6, 8, 10 and 12 Elm Avenue, New Milton [1984] 1 WLR 1398, Scott J expressed the view that the exercise of the New Forest District Council to breach statutory powers to acquire land for the purpose of the car park, whilst not extinguishing restrictive covenants to which the land was subject, left the persons entitled to the benefit of covenants to claim compensation in respect of the user of the land as a car park to the exclusion of any other remedy.  In the course of his judgment Scott J, after referring to the Kirby and Long Eaton cases, but not the Fletcher or the Simeon cases, said:

			'Those authorities provide, in my view, clear support for the proposition that, notwithstanding that in the present case the acquisition by Lymington Borough Council of the land in question was not effected by compulsory process but by agreement, nonetheless, the benefit of restrictive covenants cannot stand in the way of the use of those properties by the council for the statutory purposes for which they were required.'

		Against the background of the above cases it has recently been affirmed that the words 'construction or maintenance of the works' and 'execution of the works' respectively extend to the entire package of activities necessarily or incidentally involved in the exercise of the statutory powers and in particular the use of the land for statutory purposes."

He then refers to Brown v Heathlands Mental Health National Service Trust.
	    I find that long passage from the work of Professor Scammel extremely helpful as a starting point for my analysis as to whether or not he has correctly stated the law.  I accept that in the Kirby case the linkage to which the Professor refers was made.  In the Long Eaton case it was decided that the breach of the restrictive covenant against building may be ground for compensation under section 68.  He is, in fact, wrong to say that the non-compliance complained of in the Kirby case consisted only of the carrying out of works of construction.  As appears at page 437 of the report the land was conveyed to one Fox, and Fox covenanted with the trustees that no buildings, except bay windows and porches, should, without consent in writing of the trustees, be erected within 30 feet of the northern boundary -- that is the covenant against building -- and that no noisome or offensive trade or calling should be carried on upon the plot of land.  That was a covenant against user.  The defendants wished to erect and carry on a school and the judges assumed, without necessarily deciding, that that would involve a breach of either or both of those covenants.  In spite of that assumption, none of them addressed the question whether section 68 gave compensation in respect of the use of a building separately from its construction.  The issue as formulated was whether section 68 applied to the exercise of powers in respect of land acquired by agreement.  It is right to say that it is following his conclusion that section 68 did so apply that Lindley LJ said at page 449:

		"It follows [from his conclusion as to the application of section 68] that the school board are perfectly right in contending that an action for an injunction or damages is out of the question.  If the plaintiffs can make out that they are injuriously affected, they will be entitled to compensation under section 68 of the Lands Clauses Compensation Act."  

That second sentence, however, I think notes the possibility that even although section 68 might apply, there might be no compensation because no injurious affection within the section was in the event established.
	    Two years later Lindley LJ gave judgment in Manchester, Sheffield and Lincolnshire Railway Company v Anderson [1898] 2 Ch 394.  In that case the railway company had bought the reversion of a house subject to a lease.  On claiming rent, the tenant counterclaimed for breach of the covenant for quiet enjoyment resulting from the exercise of the company's statutory powers.  Lindley LJ there distinguished covenants which are rendered unenforceable by statutory powers, except by claims for compensation, from those not so affected.  At page 400 he made the distinction thus:

		"Let us see what is the effect of the covenant required for quiet enjoyment upon the railway company.  They have bought the reversion, and, like other assignees of a reversion, they are bound by the covenant, for it runs with the land.  I do not see any reason for holding that the covenant has gone, or in any way been extinguished.  The company must be bound like any other assignee of a reversion -- it is not a question of obligation on the company, but a question of remedy.  When we consider the remedy I fail to see the answer to the contention of the railway company.  They say, 'You cannot bring an action against us on the covenant or otherwise for anything we are doing lawfully under our statutory authority.'  It is said that then the covenant is of no use to the defendant; but it is of very considerable use to him, for it may give him rights of compensation which otherwise he might not have.  He may be able to prove, having regard to his covenant, that his land is injuriously affected when he could not prove it if he had no such covenant.  Suppose, for instance, that this is a house less than twenty years old, and suppose the railway company had not bought the reversion, and that they had made an excavation which let the house down, it is possible that letting it down would be no actionable wrong.  But that could not possibly be the case where the company are bound by a covenant of this kind, because whether the house was new or old the assignee of the reversion could not lawfully let it down except under their statutory powers.  The covenant, therefore, is by no means inoperative.  It binds the company just as it would bind any one else.  But when you come to the question of the remedy for an infringement of the covenant, you must look at the Act of Parliament.  There may be other covenants binding on the company for breach of which an action might well lie, because a breach of them could not be attributable to the execution of the works authorised by the statute.  Suppose, for example, there were a covenant by the lessor to keep the place insured.  A breach of that covenant could not arise from the construction of the works under the Act.  An action would lie against a railway company for the breach of a covenant like that, but for any breach of covenant that is authorised by the Act of Parliament there is no remedy at all except under the compensation clauses."

	    The same reference to the precise terms of the Act enabled the court to decide in Stourcliffe Estates Co Ltd v Corporation of Bournemouth [1910] 2 Ch 12, that the covenant in that case was not rendered void by the availability of statutory powers.  The headnote reads:

		"When a corporation purchases land by agreement for any of the purposes for which it is authorised to acquire land by the Public Health or other public Acts, or by its special road Acts it is not ultra vires for the corporation to enter into covenants with the vendor restricting the erection of buildings upon the land purchased which it might erect under other powers given to it for the benefit of the public, provided that such restrictions do not prevent the user of the land for the particular purpose for which it was acquired."

Parker J referred in that case to three cases including the well-known decision in Ayr Harbour Trustees v Oswald 8 AC 623, where covenants had been held to be void.  He then said at page 15:

		"In each of these cases the grant or contract precluded the purchaser from using the land for the purposes or some or one of the purposes for which the Legislature said it might be acquired and to which it was in fact dedicated by statute.  I have come to the conclusion that the principle involved in the three cases referred to is not really applicable to the covenant in the present case.  The land in question was not specified in any Act of Parliament as land which the corporation might acquire for any defined purposes, and the covenant did not in any way preclude the corporation from using the land for the purposes or any of the purposes for which it was in fact acquired, but merely precluded them from exercising with regard to such land certain ancillary and subsidiary powers with which they had been entrusted by the Legislature, but the exercise of which is not imperative for the purposes for which the land was acquired, but permissive only." 

	    For these reasons the claim for an injunction restraining construction for the erection of a urinal in a public park, contrary to the covenant, succeeded.  Although the defence was put in somewhat different form at first instance, before the Court of Appeal it appears that Kirby was cited.  The Court of Appeal upheld Parker J, although it made no reference to what had been held in Kirby.  Nevertheless, implicitly this involved an acceptance of the coincidence of the scope of the principle in that case with the other decision.  The principle in Kirby was specifically referred to by reference to Manchester Sheffield by Luxmoore J in In Re Simeon, upon which Professor Scammel relies as to the availability of compensation under section 68 for injurious affection caused by the use of land.  In that case at page 535 Luxmoore J said:

		"It is, I think, settled law that in all cases where land is subject to a burden which runs with it for the benefit of other land, a purchaser taking under compulsory powers takes the land subject to that burden like any other purchaser; but the covenant cannot be enforced by injunction in the Courts if the breach of it is attributable to the execution of the works authorised by the statute under which it was taken, or to the exercise of the statutory powers thereby conferred on the purchaser."

It may well be that the conclusion reached in that case as to the scope of compensation under section 68, to which I must return, was affected by his consciousness of the effect of that rule.  It does not, however, follow that the rights for which compensation had been awarded in the award which Luxmoore J was reviewing, could have been exercised otherwise if his decision as to the availability of compensation had been different.  
	    I do not think that the decision of Scott J in In Re 6, 8, 10 and 12 Elm Avenue depended on any conclusion as to the availability of compensation.  The headnote reads:

		"Pursuant to the provisions of the Local Government Act 1933 and the Road Traffic Regulation Act 1967, the applicant's predecessor, Lymington Borough Council, acquired four properties in Elm Avenue, New Milton, for the purpose of providing additional car parking facilities in the area.  The properties were purchased subject to restrictive covenants imposed by three conveyances made in about 1920.  These conveyances contained covenants imposing a common building line, requiring the erection and maintenance of fences and requiring, by paragraph 4, that 'No trade or business' should be carried on. .... No work of construction had been commenced, but the applicant wished to proceed with the construction of the car park, the need for which had become greater over the years, and accordingly applied for declarations that the properties in question were no longer affected by the restrictive covenants imposed by the 1920's conveyances, or alternatively that the construction of a public car park would not constitute a breach thereof, or that the restrictions were not enforceable to the extent that they would prohibit or restrict the construction of a public car park.

		Held, that although the properties had been acquired by agreement and not by way of compulsory purchase, the restrictive covenants could not be asserted so as to prevent their use for the statutory purpose for which they had been acquired or for some other statutory purpose; but that since the acquisition of land for statutory purpose did not ipso facto discharge or render restrictive covenants unenforceable, those entitled to the benefit of them could claim compensation subject to the provisions of section 10 of the Compulsory Purchase Act 1965; and that, accordingly, the applicant was entitled to a declaration that the restrictive covenants were unenforceable to the extent that they prohibited the construction of a public car park."

Reference was made to Kirby and to Long Eaton.  It should be noted that Scott J reached his judgment with the benefit of argument only on behalf of the council, so it may be that matters which he did not regard as directly material in his decision were less than fully argued.  The covenant with which he was concerned was, however, primarily that in paragraph 4, the covenant against trade or business  -- a user covenant.  Having identified that covenant, which he went on to construe so that the intended use would involve a breach of it, he said at page 1403:

		"Mr Woolley['s] .... submission [for the council] is based -- and up to a point, in my judgment, firmly based -- on authority.  In Kirby v School Board for Harrogate .... it was held by North J and affirmed by the Court of Appeal that where a statutory undertaking has acquired by agreement, not compulsory process, property for the purpose of its statutory undertaking, a person entitled to the benefit of a restrictive covenant, which would have been broken by use for the purpose of that statutory undertaking, could not restrain that use.  The reasoning behind this decision was that such a person -- that is to say, a person entitled to the benefit of a restrictive covenant over the land in question -- was not someone who would have been entitled to receive notice of a proposal for compulsory acquisition, would not have been entitled to object to a proposal for compulsory acquisition, and would, if there had been a compulsory acquisition, have been simply entitled to claim compensation for whatever injurious affection the new use might have had upon his land.  That being so, it was held, if the statutory undertaker acquired the land by agreement for the statutory purpose, the person entitled to the benefit of the restrictive covenants could not be in any better position.  He could not be in a position better than that in which he would have been had there been a compulsory process since he would not have been entitled to the benefit of any of the procedures of the compulsory process.  Lindley LJ in the Court of Appeal put the matter in this way, at p. 449:

			'It follows that the school board are perfectly right in contending that an action for an injunction or damages is out of the question.  If the plaintiffs can make out that they are injuriously affected, they will be entitled to compensation under section 68 of the Lands Clauses Consolidation Act.  They are not in the position of a person who is in the enjoyment of some easement; but they have a right -- a right conferred upon them by that covenant.  What is its value in money is another matter.  It is quite possible that in asking for compensation, and in putting into force the machinery for obtaining it, their damages may be assessed at nil; but if they can make out they are damnified they are entitled to compensation under section 68.  That was North J's view, and that is my view.  I think that his decision was correct, and that the appeal must be dismissed with costs.'

		That passage that I have referred to was cited with approval in a later case in the Court of Appeal, Long Eaton Recreation Grounds Co Ltd v Midland Railway Co [1902] 2 KB 574.  

		Those authorities provide, in my view, clear support for the proposition that, notwithstanding that the acquisition by Lymington Borough Council of the land in question was not affected by compulsory process but by agreement, none the less the benefit of the restrictive covenant cannot stand in the way of the use of those properties by the council for the statutory purposes for which they were acquired."

	    In my view the citation of that passage from the judgment of Lindley LJ, together with the additional sentences which I have read beyond those which I initially read when I referred to that case myself, shows that the non-availability of injunctive relief was not dependent on entitlement to compensation but derives from the fact that Parliament has made such provision for compensation as it thinks fit.  I say this because Scott J was careful not to find that any compensation will be payable.  He merely says at page 1405:

		"Mr Woolley has referred me to the various relevant provisions of the compulsory purchase legislation.  Section 68 of the Lands Clauses Consolidation Act 1845 .... to which reference was made in the two cases to which I have referred, became, in effect, section 10 of the Compulsory Purchase Act 1965.  Persons entitled to the benefit of restrictive covenants are, in my judgment, in a position, if the injurious affection necessary can be established" --I emphasise those words -- "to claim compensation under section 10 of that Act."

	    He rests for the proposition that the rule applies in the case of acquisition by agreement rather on the position of covenantees as not being entitled to be treated as owners of the land. They are therefore entitled, as I must make clear in due course, to compensation only under section 68 of the 1845 Act and section 10 of the 1965 Act, and not under sections 63 and 7 of those Acts.  His next paragraph indeed explains this:

		"The Acquisition of Land (Authorisation Procedure) Act 1946 has now replaced the Lands Clauses Consolidation Act 1845 and the position remains, under that Act by virtue of Schedule 1, paragraph 3(1)(b) of the Act of 1946, as it stood under the Act of 1845, that it is only an 'owner, lessee and occupier (except tenants for a month or any period less than a month) of any land' who is entitled to receive notice of a compulsory purchase proposal or to object to that proposal.  Accordingly, the same reasons as inclined the Court of Appeal in the two cases I have mentioned to conclude that persons entitled to the benefit of restrictive covenants could not resist use of land for statutory purposes where it had been acquired under agreement apply to that same proposition today."

	    In Brown v Heathlands Chadwick J followed the decision in Kirby and in Elm Avenue, but at page 136J he asserted the reasoning which Professor Scammel has described as the linkage with compensation.  He said:

		"In my judgment the principle upon which the Court of Appeal based its conclusion in Kirby is that, where the legislature has entrusted a statutory body with functions to be discharged in the public interest and has given that body power to acquire and hold land for the purpose of discharging that function, private rights by way of restriction affecting the land are not to be enforced by injunction or damages in the courts because the legislature has provided for an exclusive remedy by way of statutory compensation."

Chadwick J's case was concerned with a proposal to use a dwelling to house mentally-ill patients contrary to a covenant that no building should be used otherwise than as a private dwelling house.  That is entirely a question of use as opposed to construction.  For that reason he considered the availability of compensation under section 10 of the Compulsory Purchase Act 1965 for injurious affection caused by use.  He said at page 138J:

		"Section 68 of the 1845 Act and its statutory successor, section 10 of the 1965 Act, provide for compensation where a party is injuriously affected in respect of any lands by 'the execution of the works'.  In that context, 'the works' are defined in section 2 of the 1845 Act to mean 'the works which shall by 'the special Act' be authorised to be executed.  That phrase was considered by Luxmoore J in Re Simeon....  He held that the phrase 'the execution of the works' included 'the exercise, that is the carrying out and the execution of the appropriate statutory powers'.  

		Scott J reached the same view in Re Elm Avenue in a passage to which I have just referred:

			'The restrictive covenants cannot be asserted so as to prevent the use of the land for the statutory purposes for which it was acquired and the compensation procedure is available to compensate those entitled to the benefit of the restrictive covenants if that use should injuriously affect their land.'"

	    With great respect to Chadwick J I do not, for the reasons which I have already given, think that Scott J was, in fact, making any judgment as to the scope of section 68.  Further, I have, after not a little hesitation (increased indeed by the fact that I discover that in a previous case I have myself accepted his view without further consideration or, as I recollect, argument) come to the conclusion that Chadwick J's view as to the scope of section 68 was wrong.  I doubt that the error (as I find it to be) invalidates his conclusion as to the availability of injunctive relief in that case, and so my respectful disagreement is with his reasoning and not with his decision in the case, although I suspect that he would have regarded this part of his reasoning as essential to his decision.
	    Before reaching this conclusion I made enquiries of counsel involved in the case.  I am told that it was accepted on behalf of the defendant that compensation under section 10 would be recoverable on the basis of any injurious affection caused by the proposed use because it was hoped in this way to avoid injunctive relief and that such concession has been maintained in the Lands Tribunal.  Thus the issue, briefly dealt with by Chadwick J, effectively went by concession.  This no doubt explains the brevity of the reference to what Luxmoore J said in Re Simeon, despite the fact that reliance upon such dictum involved a departure from the understanding of the law as set out in the text books.  In Re Simeon Luxmoore J was asked to determine a special case from an arbitrator who had awarded compensation under section 68 in respect of damage to the claimant's land by reason of the proposed use of land which he had conveyed subject to covenants not to extract water, for such extraction.  Luxmoore J said at page 539:

		"Mr Simes further argued that no compensation can be given in respect of these interests, because any injury caused to the claimant will not arise from the construction of the council's proposed works but only from the user of those works; and in support of that argument he relies on the decision in the Hammersmith and City Railway Company v Brand L.R.4.H.L. 171.  The decision in that case turned on the particular phraseology of section 6 of the Railways Causes Act.  In the present case, the Public Health Act 1875, section 51, authorises the construction and maintenance of waterworks for the supply of water.  It seems to me that although the material section of the Waterworks Clauses Act is not incorporated in the particular statutes and orders governing the present case, the reasoning to be found in the judgment of the Court of Appeal in Fletcher v Birkenhead Corporation [1907] 1 KB 205, and especially the reasoning to be found in the judgment of Farwell LJ, applies in the present case and distinguishes it from the decision in the Hammersmith and City Railway Co v Brand, because the statutory powers in this case are to construct and maintain waterworks and to supply water.  In order to supply water it is necessary to draw the water from the land taken, and this is an execution of the works authorised.  The words of section 68 of the Lands Clauses Consolidation Act are not, as in the case of section 6 of the Railways Clauses Act, 'construction of the works', but 'execution of the works'.  In my judgment the latter words are wider than the former and include the exercise, that is the carrying out and execution of the appropriate statutory powers."  

In order to understand these words it is necessary to look at the reasoning in Fletcher to which he refers.  The phrase in the Railways Act to be construed in Brand was, as recited at page 212 of that case, "in exercising the power to construct the railway".  In the Waterworks Act, with which Fletcher was concerned, the phrase was extended to "the construction or maintenance of the works thereby authorised or otherwise by the execution of the powers thereby conferred" (see page 213 of that report).  Luxmoore J was concerned with section 68 of the Lands Clauses Act, which refers to the execution of works.  But the works to be executed are defined by the Public Health Act which, as he says, "authorises the construction and maintenance of waterworks for the supply of water".  In my judgment, when Luxmoore J says that the words "execution of the works" are wider than "construction" and "include the exercise (that is the carrying out and execution of the appropriate statutory powers)" he is referring to the powers under the Public Health Act to execute works, including within the meaning of works, maintenance and the operation of the works for supply.  He does not say that compensation arises under section 68 for anything which is not an execution of works, however widely that word may be construed.  Mere use is not works.  However, on the reasoning in Fletcher the operation of waterworks so as to extract water is the execution of works.  If by the exercise of the appropriate powers Luxmoore J had meant more he would, as it appears to me, have fallen into an elementary of error of statutory construction.  The words of section 68 are: "If any party shall be entitled to any compensation in respect of any lands .... injuriously affected by the execution of works", he shall be entitled to have compensation settled."  It is to be contrasted with the words of section 63 which are: "In estimating the compensation to be paid [for land taken], regard shall be had not only to the value of the land but also to the damage, if any, to be sustained by the owner of the land by reason of the severing or otherwise injuriously affecting such other land by the exercise of the powers of the Act" (my emphasis).  Thus, there are two provisions using different words to describe the compensation payable in regard to similar detriments arising in different circumstances.  To hold that the different words have identical meanings flies in the face of ordinary modes of statutory construction and I do not think that that was what Luxmoore J was intending to do.
	    In my judgment the operation of a football stadium, once constructed, could not be identified as the execution of works.  It is the use of works which have been constructed.  In my judgment injurious affection so caused would attract compensation under section 63 of the 1845 Act or section 7 of the Act of 1965 if land was taken, but does not attract compensation under section 68 or section 10.  That is the very distinction between the sections which was taken by Lord Halsbury in Thomas Christopher Cowper Essex v The Local Board for the District of Acton in the County of Middlesex [1889] XIV HLC 153 to be conclusively settled when he said: 

		"I take it that two propositions have now been conclusively established.  One is, that land taken under the powers of the Lands Clauses Act, and applied to any use authorised by the statute, cannot by its mere use, as distinguished from the construction of works upon it, give rise to a claim for compensation.  But a second proposition is, it appears to me, not less conclusively established, and that is, that where part of a proprietor's land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor's land, then such damage may be an injurious affecting of the proprietor's other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing had been taken for the purpose of the intended works."

In my judgment Luxmoore J's construing of the "extent of works" does not in any way affect those two propositions.
	    This consideration of the scope of compensation is, in my judgment, useful even though I do not think it is determinative of what I may call the limits of the Kirby principle.  It does nonetheless help in the consideration of the proper construction of section 237 of the Town and Country Planning Act 1990.  I have discovered that in a case which I had forgotten I had already expressed my view that the limitation of the principle in Kirby is whether the non-enforceability of the covenant is essential to the carrying out of the particular statutory power proposed to be exercised.  The case is Cadogan v Royal Brompton Hospital National Health Trust [1996] 2 EGLR 115.  The headnote reads:

		"By an indenture dated 24 December 1912 the predecessor in title to the plaintiff trustees gave land to the trustees of the Chelsea Hospital for Women.  The indenture was subject to two restrictive covenants: (1) the land was not to be used for any purpose whatsoever except those of the Chelsea Hospital for Women; and (2) no building could be erected until the external elevations had been submitted to and approved by the surveyor to the Cadogan Estate.  Following the National Health Act 1946 the land became vested in the Minister of Health and passed through a number of other ministers before becoming vested in the defendant national health trust.  The plaintiffs sought declarations that the covenants were enforceable against the defendant. 

		Held: The plaintiffs are disentitled from enforcing the first covenant by an injunction, but can restrain the defendant from erecting a building without first submitting plans, although they may not be able to restrain the erection of a building required for a statutory purpose.  The defendant trust is a statutory body established by the National Health Service and Community Care Act 1990 with functions to be discharged in the public interest.  When the property became vested in the present defendant with its limited powers and duties, the restriction in the first covenant on use became one which was inconsistent with the carrying out of its statutory function.  There is a right to compensation under section 10 of the Compulsory Purchase Act 1965 in respect of use which applies in the case of an acquisition by vesting power of statute."

The headnote is, I regret to say, accurate as to what I decided in regard to compensation, although it must be said that I did so in the absence of any argument on the matter and merely by way of acceptance without further consideration of the authority of Chadwick J's decision.  At page 116J I said:

		"I do not have to refer to the authority which was cited by Chadwick J which makes clear that compensation under section 10 may be given in respect of use;"

However, I went on to explain why I treated the two covenants differently:  

	"Nor do I have to refer to the authority which he cites that the restriction upon enforceability of covenants by reason of the application of section 10 applies equally in the case of land acquired by agreement as to land acquired by the exercise of compulsory class.  It being accepted that the rule is of such general applicability, it appears to me that it must apply equally in a case of an acquisition by vesting by power of statute as it would on an acquisition by agreement.  Indeed, it would seem to me a more obvious and certain case if the purpose of the rule is to preserve the availability of the statutory powers.  The sole issue therefore appears to me to be whether or not the particular restriction is or is not consistent with the function for which the particular statutory body has acquired the property" 

and it is on the basis of that distinction that I determined differently in respect of the covenants.  
	    It is, in my judgment, on the basis of the particular powers that it is to be determined whether or not the principle enunciated in Kirby is to be applied.  In construing those powers no doubt the availability of compensation, or at least the applicability of provision for compensation which may not, in fact, be enjoyed, must be material.  
	    In this case the appropriation of the land was under the power contained in section 122(1) of the Local Government Act 1972.  That section specifically preserved third party rights.  It provided that: 

	"a principal council may appropriate, for any purpose which the council is authorised by this or any other enactment to acquire land by agreement, any land which belongs to the council and is no longer required for the purpose for which it is held immediately before the appropriation.  But the appropriation of land by a council by virtue of this subsection shall be subject to the rights of other persons in, over or in respect of the land concerned."

	    What then happens to such rights when land is appropriated for planning purposes?  Section 237 of the Town and Country Planning Act 1990 says only that certain things which might be the subject of such rights are authorised.  Section 237 says that 

	"the erection, construction or carrying out or maintenance of any building or work on land which has been appropriated by a local authority for planning purposes, whether done by the local authority or by a person deriving title under them, is authorised by virtue of this section if it is done in accordance with planning permission, notwithstanding that it involves (a) interference with an interest or right to which this section applies, or (b) a breach of the restrictions in user of land arising by virtue of a contract."

	    Compensation is then given by subsection (4) as follows:

		"In respect of any interference or breach in pursuance of subsection (1), compensation --

			(a) shall be payable under section 63 or 68 of the Lands Causes Consolidation Act or under section 7 or 10 of the Compulsory Purchase Act 1965; and

			(b) shall be assessed in the same manner and subject to the same rules as in the case of other compensation under those sections in respect of injurious affection --

			(i)	where the compensation is to be estimated in connection with a purchase under those Acts; or

			(ii)	the injury arises from the execution of works on land acquired under those Acts."

	    Mr Hill-Smith at one stage submitted that this might justify the assessment of compensation under section 7, even although no land was taken from the claimant.  The two cases, (i) and (ii) in subparagraph (b) of subsection (4), which are the different cases for the application of section 7 or of section 10, make clear in my judgment that that is an impossible construction of the section.  Where no land is taken, compensation is only for injurious affection arising from the execution of works in accordance with section 10.  To put the matter beyond doubt, section 245(4)(a) gives a special definition to that phrase quite inconsistent with its including use.  Section 245(4) says that, in construing the Compulsory Purchase Act in relation to any of the provisions of this Part, 

	"(a) references to the execution of the works shall be construed as including references to any erection, construction or carrying out of building or works authorised by section 237."

	    Mr Hill-Smith, however, adopts by way of argument Professor Scammel's view as to the proper construction of section 237.  At page 192 of his work Professor Scammel, first, gives an explanation as to why the section was necessary at all:

		"The significant feature of this section is that it permits a breach of covenant or interference with an easement or profit or grant either by the local authority .... or by a person deriving title under them who may, of course, be a private person or body.  Apart from this extension of immunity, the section would not appear to have been necessary since, so far as the local authority is concerned, the breach by them in carrying out the planning purposes would be permitted under the general principles of law referred to above."

I would comment, firstly, that such provision was probably not necessary, even for persons deriving title for the reasons he himself gives at page 191, where he says:

		"If the public body chooses (assuming it otherwise has power so to choose) to carry out the statutory purpose through the instrumentality of a private individual or company to whom it grants a licence or lease for this purpose, then the licensee or lessee will be entitled to shelter under the umbrella of statutory immunity which is conferred upon the public body.  But if a licence or lease is granted to enable the licensee or lessee to pursue purposes which are not within the statutory purposes, then such a licensee or lessee is outside the shelter of the umbrella."

Secondly, even if that were in part the explanation as to the introduction of this section into the Act, the provision does, in fact, deal with the situation of the local authority and so must be taken to have a purpose in respect of the Acts of the local authority.  Thirdly, I would note that the person who it is proposed should use the stadium in the present case is the second defendant who derives title from the local authority and, on Professor Scammel's argument, immunity of the second defendant must be limited to the precise immunity granted by the section.
	    Professor Scammel then deals with the problem with which I am confronted as to the scope of section 237 as follows:

		"The scope of the breaches permitted by section 237 of the Town and Country Planning Act 1990

		The same question arises under this section as arose under the general law in the case of non-compliance by public bodies of restrictive covenants adversely affecting their land, namely does the permitted non-compliance extend not only to the carrying out of works on the land but also to a use of the land which is prohibited by the covenant.  In this connection, it is the case that the words of section 237(1) do not, in terms, specifically refer to the 'use' of land following the works of construction or, indeed, to the mere change of use without works of construction.  There is no authority specifically turning upon the construction of this section but, for the following four reasons, it is considered that there is little doubt but that the use of land in breach of covenant is permitted by the section.  The reasons are as follows:

		(1)  The word 'maintenance' is included in the list of activities authorised by the subsection and, as has already been seen above, in Fletcher v Birkenhead Corpn, this word was latched on to by members of the Court of Appeal, in construing a section of a different Act but which is in pari materia with the present section, to justify their unanimous conclusion that the section (in that case) extended to compensation in respect of the use of works as well as their construction.  It has to be admitted, however, that the strength of this argument is reduced when regard is had to sections 238 and 239 of the 1990 Act since these sections show that when this part of the Act intends to authorise the use of land for a particular purpose then it authorises the land to 'be used' for such purpose.  Whilst, however, no such words appear in section 237, this section alone of the group of three referred to, can claim to be in pari materia with the sections of the Acts which were construed in the Fletcher and other cases referred to above and it is considered that this explains the language used and its consequential meaning."

	    I would comment on that first reason as follows.  I have already attempted to explain how in Fletcher the phrase differs from that in section 237 and why operation of the works to fill the reservoir was held to be part of the maintenance.  I think that, in construing section 237, the contrast with sections 238 and 239 (and I would add the avoidance of the use of the word "development" which goes beyond mere works) support the opposite construction.
	    The Professor goes on with a second point:

		"(2)  The activities referred to in the section are permitted notwithstanding that carrying them out 'involves' a breach of covenant.  In the Shorter Oxford Dictionary the word 'involve' comprehends 'To include, to contain, imply; esp to contain implicitly'.  The argument therefore is that since the works of erection or construction pursuant to planning permission 'imply' the post-construction use thereof, the erection or construction of the works 'involves' a breach of covenant which includes such subsequent use."

This argument, if I have understood it correctly, is in my judgment misconceived.  The problem is the definition of "work".  It may be authorised, even if it necessarily involves (in the sense of implying) a breach of a covenant against use.  But that does not mean that the subsequent use is thereby authorised by an authorisation of the work.
	    His third point is this:

		"(3)  If, after construction, the works constructed could not be used without fear of an injunction, the whole purpose of sections 226 (acquisition of land for planning purposes), 232 (appropriation of land for planning purposes) and 237 of the Act would be nullified and, in the absence of clear words producing this result, section 237 must be construed to avoid that result."

I think that this reverses the usual mode of construction of the statute which must, on my analysis, involve the appropriation of third party rights without compensation and (even if I were wrong about that) with only restricted compensation.  The degree to which the purpose of the Act would be nullified is in any case doubtful.  The local authority can avoid the problem by the purchase of the dominant tenant and would be empowered to do so if it thought it necessary for planning purposes.  Availability of that power, or the possibility of application to the Lands Tribunal under section 84 of the Law of Property Act 1925 would, of course, be a basis upon which agreement for the release of a restrictive covenant might well be negotiated.  Impeding a "public purpose" is specifically a ground for modification of a covenant under section 84(1)(aa). 
	    Professor Scammel's fourth point is this:

		"(4)  The 'planning purposes' referred to in section 226(1) of the Act (as so designated -- rather than defined -- by section 246(1)(a), include any 'development' and also the use of land for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated.  Either of these purposes may involve nothing more than a material change of use of land.  An interpretation of section 237 which would confer immunity in respect of some planning purposes (construction) but not others (use and change of use) would not be consistent with the generality of the reference to planning purposes in the section."

In my judgment it is precisely the contrast between the use of the word "development" in those sections and its avoidance in the description of what is authorised in section 237 that leads to the opposite conclusion.  Indeed, it is to be noted that section 246, as the interpretation section, gives in subsection (3) an extended meaning to "use" in sections 238, 239 and 241, but in spite of reference to section 237 in subsection (2) gives no such extended meaning to "works" in section 237 in order to reverse the effect of section 245(4)(a), to which I have already referred.
	    Mr Hill-Smith also referred me to a number of cases where it has been assumed that section 237 would have the results asserted by Professor Scammel, and for this reason those wishing to avoid that result have sought to attack the decision rather than the effect of section 237 -- that is to say the decision to appropriate rather than the effect of the appropriation.  I do not think I can draw more from these cases than that I should not lightly reject the arguments based on Professor Scammel's persuasive work.  Nor do I.  I have considered carefully the reasoning of Dyson J in In Re City of London, ex parte Master Governors and Commonality of the Mystery of the Barbers of London [1996] 2 EGLR 128.  He there decided that section 237 does not cease to apply once the original purpose for which the authority required the land has been achieved.  It is available to authorise further works for which planning permission is duly granted.  He categorised this as a wider interpretation of the section and said at page 129:

		"There is nothing surprising about the wider interpretation.  The statutory objective which underlies section 237 of the 1990 Act is that, provided that work is done in accordance with planning permission, and subject to payment of compensation, a local authority should be permitted to develop their land in the manner in which they, acting bona fide, consider will best serve the public interest.  To that end, it is recognised that a local authority should be permitted to interfere with third party rights.  A balance has to be struck between giving local authorities freedom to develop land held for planning purposes, and the need to protect the interests of third parties whose rights are interfered with by local authority development.  Section 237(1) is the result of that balancing exercise.  Parliament has decided to give local authorities the right to develop their land and  to interfere with third party rights, but on the basis that work is done in accordance with planning permission (with the protection inherent in the planning process), but third parties affected are entitled to compensation under section 237(4)."

I agree with all of that.  The question, however, is in what way the balance has been struck in regard to development consisting of use of the works in non-compliance with covenant, as opposed to construction.  In that case the works proposed would have interfered with the right of light, and compensation would indeed have been available.  Dyson J made clear in dealing with the submission based on Tate and Lyle v Greater London Council [1983] AC 509, that it is the words of the section which led him to the conclusion which he reached.  Likewise I have attempted to construe the words of the section as they apply to the particular issue raised before me.
	    For these reasons I construe section 237 as not authorising use in contravention of the restrictive covenants as I have construed them in this case.  Since what I have called the "Kirby principle" is, in my judgment, to be limited to the specific powers in the Act, I do not think that such authority can be relied upon to give powers to override the covenant in order to carry out what is not authorised by the powers.  I accept, of course, that the power of compulsory purchase in section 226 of the Town and Country Planning Act is in the widest terms for securing development which would therefore include use.  The effect of section 237, however, is in my judgment to set limits upon the exercise of such powers where they involve interference with third party rights.  I would therefore make the declarations sought in paragraphs 1 and 2 of the amended originating summons.  
	    Having thus given judgment, although at such length, only on a small part of that which has been raised by this originating summons, I had better invite counsel to indicate to me how they would wish the outstanding matter still to be dealt with?

(Counsel addressed the court)

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