Tuesday, 23 February 2016

Breaking Covenants

The Ministerial Decision of 15 February about breaking or abrogating a covenant is now receiving attention in the media.

La Motte Street School - former, St. Helier: Validation and Abrogation of Covenants (Jersey) Law 201-

To validate the use of land formerly known as the La Motte Street School and to abrogate certain restrictive covenants attaching to that land, and for connected purposes.

The preamble to the proposition states:

“There were 2 existing covenants contained within the contract by which the Public of the Island acquired the former La Motte Street School from the Parish of St. Helier on 25th September 1964. The covenants in effect require that the buildings and site on which they stand should be used in perpetuity for the religious instruction and education of infants and primary school aged children. The effect of abrogation would mean that the Public of the Island would be able to use, sell or lease the former La Motte Street School free from those covenants.”

It cites two clauses relating to the purpose of the school, and notes:

“The above-mentioned clauses of 1840 and 1926 respectively are no longer relevant to the provision of an education service in the Island. That has been reflected in previous decisions to cease operating a school from the site, and to exclude the property from the “Education (Jersey) Law 1999” as a “provided school”. Due to the passage of time and the passing of the original covenanters, the clauses are no longer considered to be enforceable.”

The principal argument is that the people who put in place the covenants are long since dead, so the covenants cannot be enforced legally.

Why is this small item important? I think it sets an important precedents which strengthen the way for the Council of Ministers to abrogate other restrictive covenants on the basis that the situations have changed. 

In particular, two spring to mind:

The Bellozane Covenant and the Sewage Charge
When the Bellozanne site was sold by the Parish of St Helier to the Public of the Island, a covenant was included, stipulating how waste should be received. The legal advice to the Committee is that it is implicit in this obligation to accept the refuse free of charge. The Committee has made preliminary investigations into the options for resolving this situation, and will negotiate with the Parish of St Helier to find a satisfactory way forward. This may incur some costs which cannot be quantified in advance of discussions with the Parish

But as Bailliwick Express reported:

"The 1952 sale of the Bellozanne site by the Parish of St Helier to the States included a clause that the States could never charge St Helier residents for waste disposal. But now, with a £10 million user-pays waste charge forming part of the plan to fill the £145 million deficit expected by 2019, TTS want to set that clause aside to get the charge set up.”

And in 2013, Simon Crowcroft, the Constable, made the position very clear:

“Just to put this one firmly to bed, the fact that the incinerator has moved to La Collette does not affect the covenant one jot. The Parish of St. Helier is still entitled, under the terms of the covenant, to deposit its refuse up at Bellozanne and it would have to be removed, processed by the people operating the incinerator, so the covenant is in very good fettle. It is not something that I have any control over either. It is a matter for the Parish Assembly and it has not been raised with me recently but if the Council of Ministers is anxious to have the covenant removed so that it can start charging for waste disposal, then it needs to come along to the Parish Assembly as, indeed, some Ministers are going to come to the Parish Assembly to ask us to allow a substation to be built on Parish land.”

The People’s Park Covenant
While the “People’s Park” is on the radar as a new hospital site, there is also a covenant on part of that site, as mentioned by Christian May:

“The land that comprises People's Park was gifted to the Parish of St Helier for the enjoyment of the residents and Islanders and is protected by legal covenant which can be found in the Jersey Archive. This is a protection that both Mary Ayling-Phillip and I have sought to apply in the past and remains very much in force. It would take a full Parish Assembly vote or a forced change in legislation by the States Assembly to remove it.”

Covenants and Housing
The report from 2009 “Achieving Affordable Housing as a Proportion of Private Housing Development” noted that:

“Covenants can be attached to a property to bind the property in perpetuity in respect of the discount at which it must be sold on.”

This was to prevent owners from property whose purchase was supported by the States selling it off at a profit, which sadly happened frequently in the past. And it noted:

“Jersey law does allow covenants in perpetuity”, quoting the law:

“Perpetual servitudes and restrictive covenants may be created in or over land which is described as le fonds serviant in favour of other land which is termed le fonds dominant.”

“Where … the purchaser and vendor … create new restrictive covenants or servitudes, the parties will … covenant specifically for themselves and their respective heirs, and if the covenants are intended to bind the land in perpetuity they will be à fin d’héritage.”

And in conclusion...

Why not use the school site as a centre for young people, for the Jersey Youth Service, when it would surely still be fulfilling an educational remit?


James said...

You should know that the BBC were reporting this morning that they had checked and that there are no restrictive covenants relating to Peoples' Park. Who is right?

TonyTheProf said...

As I understand it the covenant only covers part of the park, not the whole.