Upper Saxondale Parish Council
Notices & Consultations

Covenant over church at Upper Saxondale

When David Wilson Homes (DWH) transferred the church building to the Radcliffe Christian Fellowship (the Wellspring Church) in 1999, they imposed (in the 3rd schedule of the transfer deed) a restrictive covenant that the building should only be used for ‘religious purposes or for other non-profit-making community purposes’. This covenant was stated, in clause 3 of the transfer deed, to be for the benefit of ‘each and every part of the Estate’. The Estate was defined as the land comprised in DWH’s relevant title at Upper Saxondale, so would include land on which houses have been built/converted.

We understand from DWH and from Bingham Scouts that DWH are intending to release or modify this covenant so that the Scouts’ use of the property will not be a breach of the covenant. Typically a covenant like this could only be released with the consent of those with the benefit of the covenant. However clause 7a of the transfer deed gives DWH the right to ‘release, vary or modify any of the restrictions… in the 3rd schedule’.

On the face of it therefore DWH have the right to release or modify the covenant. However it might be possible to argue that clause 7a should be construed to mean that DWH just had the right to include different covenants in future transfers of other parts of the Estate, and not the right to alter the covenants in this particular transfer, the transfer of the church. It’s a very complex legal point, but if that argument was successful it would mean that the consent of all the other owners of the Estate would be necessary to validly release or modify the covenant.

In practice if DWH modifies the covenant and the Scouts go ahead, on the above argument the owners of other property on the Estate could allege that the Scouts are in breach of covenant on the basis that the covenant had not been validly modified because those owners had not consented. Those owners could then sue the Scouts, which would mean potentially lengthy and expensive litigation with of course no guarantee of success given the complex legal position.

Just to add that covenants are entirely separate from planning permission, even if you have planning permission you still have to comply with any covenants.

USPC
11th December 2023

Upper Saxondale Church: Summary FROM USPC

The church building is owned by the Rock Church. The Rock Church has agreed to transfer it to Bingham Scouts. DWH has a right of pre-emption but it seems that they may not exercise this in which case the transfer will go ahead. The Scouts need planning permission for the change of use, which of course they have applied for, and we have objected to. We have said that we are prepared to discuss with the Rock Church and DWH other possible uses for the building and we have also suggested to DWH that the Scouts have provided no evidence of their ability to maintain the building.

Nevertheless, we cannot stop the Rock Church transferring the building to the Scouts and we cannot force DWH to exercise their right of pre-emption to stop that transfer. In any event even if we can persuade the Rock Church and DWH to change their minds, the PC is not currently in a position to afford the cost of maintaining the building.

As part of the entirely separate transfer to the PC of the remaining land that DWH owns at Upper Saxondale they will pay a sum of money to the PC, but this is calculated to fund the ongoing cost of maintenance of that land and would not provide any funding to maintain the church.

Assuming that the planning application goes to planning committee, representatives of the PC will attend and if permitted will address the committee to reinforce our objection. 

You can contact the Parish Council by emailing parishclerk@uppersaxondale.com.

USPC
10th October 2023

Former Catalyst Church Planning Application

A planning application was submitted to Rushcliffe Borough Council (RBC) by The Rock Church & The 1st Bingham Scouts for change of use of the former Catalyst Church. The Upper Saxondale Parish Council (USPC) was asked by RBC for their views on this application. At the USPC meeting held on 18th September 2023, residents were able to share their views on the planning application. Taking all views into consideration, the USPC has resolved to object to the change of use. The USPC response has been submitted to RBC who will make the final decision on the planning application. You can read USPC’s full response here.

Residents can view and also comment on the application via RBC’s planning portal https://planningon-line.rushcliffe.gov.uk/online-applications, search for application 23/01605/FUL.

October 2023