Actually, I was asking you to specify who you thought that might be and why.
As George Orwell said "good prose" should be "like a window pane." :)
RVSP.
I don't know if anyone has benefit of the covenant, otherwise I'd have said!
In fact I really, really, really wish you hadn't asked me that question because I'm now going to have to give the most boring reply in SZ history and it almost certainly will not be good prose.
**disclaimers - First I haven't seen the 1953 conveyance or any plans. Secondly I'm a bit rusty on covenants as I haven't looked at them for a few years and I really can't be bothered to read up on the subject, which is about as technical and convoluted as the law gets. If someone actually wanted a definitive answer on this I'd recommend they refer it to Counsel (hello MtS!) rather than solicitors anyway, so I'll try and keep the answer brief, but that may mean skirting over some issues**
The original covenantee was The Mayor Aldermen and Burgesses of The County Borough of Southend on Sea (Corporation). Now I'm not sure if there is such a thing as The Mayor Aldermen and Burgesses of The County Borough of Southend on Sea (Corporation) any more, but I suspect this has probably been swallowed up by the Southend Unitary Authority but if there is they could sue the original covenantor, Ernest Neville Selby and others, through privity of contract for breach of the covenant were the land to be used in contrary to the covenant but good luck finding him alive and even if you can track him down he doesn't own the ground any more, so can't give specific performance, leaving damages as the only remedy and what damage has actually been suffered?
Instead, the remedy you'd be after would be an injunction preventing the breach of the covenant. An injunction is an equitable remedy. So you'd need to look at whether the burden and benefit run under equity. Under the rule in Tulk and Moxhay, restrictive covenants can run in equity and bind if: (1) they are restrictive in nature; (2) The coventatee owns the land for whose protection the covenant was made and is capable of benefiting the land; (3) The burden was intended to run; and (4) the purchaser had notice.
Now (4) isn't an issue because it is Registered Land and the covenant appears in the Charges Register and (3) is implied under s79 of the Law of Property Act 1925 but the other two are more problematic. The covenant is couched in a positive manner "to develop the premises" but this might not necessarily be fatal, I'd need to delve into the case law, but I think there are precedents where the court has enforced only the negative part of the covenant eg the bit where it says "and for no other purpose". The big issue here though is (2). I'm not convinced it's a real covenant that is capable of benefiting the land. Again, you'd need someone with more time to delve into the case law (I think the starting point is London CC v Allen, where IIRC a covenant not to build was held not to benefit the Council) but that's a huge red flag in my opinion because if it isn't capable of benefiting the land (and what land is it claiming to benefit?) you've got no-one with the benefit of the covenant to enforce it.
For the benefit to then have run, you need it again to be a real covenant and "touch and concern the land". This then links it to land (but what land?), and who in turn then owns the land that benefits from the covenant?
Even if the council does own the land that benefits from the covenant, it would be a long and expensive battle to get an injunction on the basis that it is probably questionable whether it is a restrictive and not a positive covenant and extremely questionable as to whether it touches and concerns the land or not. I'd have thought you are looking at the very least taking it all the way to the Court of Appeal, particularly when the site is so valuable to someone like Sainsburys who have invested a lot of time and money into the project already. With council budgets having to be slashed due to Labour's profligacy, I can't see the Council embarking on an expensive legal battle to save the club.
I wouldn't therefore be at all confident on relying on it from SUFC's perspective.
Looking at it from the other angle of a prospective developer, I wouldn't advise a purchaser to go ahead without first obtaining restrictive covenant insurance, but assuming this is available (and given that Sainsburys/SJ Berwin have been happy to advance the money, I'd wager that it is, and that restrictive covenant insurance has already been taken out) then I wouldn't have any qualms in letting a client go ahead subject to the insurance offering sufficient cover.
