Paper Street, Yaxham
Decision Maker: Cabinet
Decision status: Recommendations Approved
Is Key decision?: No
Is subject to call in?: Yes
To consider how to regularise a breach of a restrictive covenant that had arisen on land transferred from Breckland Council to Yaxham Parish Council.
That the Yaxham Parish Council request be deferred to investigate whether part of the land could be used for amenity use. Delegated authority then be given to the relevant Portfolio Holder to:
1) remove the restrictive covenant imposed restricting use of this land as ‘Allotment use only’ in the Transfer dated 24 October 2011;
2) a further restrictive covenant be imposed to restrict this land as allotment or agricultural use, and subject to the above investigation part of the land being used as amenity use;
3) impose a further restrictive covenant not to sell the land without first obtaining authorisation from Breckland District Council;
4) do so at nil consideration.
Reasons for the decision:
To release the existing restrictive covenant and replace it with a further covenant would allow the Parish Council to retain the land and to take further advice on how to remove the tenant to allow the land to be used in the future for allotments for the local residents. A further covenant could be imposed to protect the Councils financial interests, in the event that the Parish Council did decide at any time to sell the land, which would prevent the Parish Council from disposing of the land without the Council’s consent.
The Parish Council were not in a position to give the Council £3,000 to release the restrictive covenant, as a consequence of which the Parish Council are in breach of the restrictive covenant.
If the land were to be transferred back to Breckland Council at nil cost the Parish Council would no longer be in breach of the restrictive covenant and the Council would have control over the land. Breckland District Council would then need to consider whether to seek Counsel’s opinion in relation to the Agricultural Tenancy.
The Council could
choose if it so wished not to do anything and to allow the
situation to remain as is in the interim, to allow the Parish
Council to explore in further detail the options available to them
to end the agricultural tenancy.
Alternative options considered:
- To release the restrictive covenant allowing the land to be used for allotment purposes only and replace it with one which would allow the land to be used for the purposes of either agriculture or allotments waiving any fee subject to the Parish Council agreeing to pay Breckland Council’s legal fees and adding a further restrictive covenant to prevent the Parish Council from selling the land without first obtaining the authority of Breckland District Council.
- To release the restrictive covenant and replace it with a covenant allowing it to be used for agricultural purposes only subject to the payment of £3,000.
- To ask the Parish Council to transfer the land back to the District Council at nil cost given that it is in breach of the existing restrictive covenant.
- Do nothing.
Report author: Kirsty Mallett
Publication date: 15/01/2015
Date of decision: 13/01/2015
Decided at meeting: 13/01/2015 - Cabinet
Effective from: 23/01/2015