UPPER TRIBUNAL (LANDS CHAMBER)
UPPER TRIBUNAL (LANDS CHAMBER)
UT Neutral citation number: [2014] UKUT 0139 (LC)
UTLC Case Number: LP/04/2013
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT –discharge – obsolescence – changes in character of property or neighbourhood – application refused – Law of Property Act 1925, section 84(1), ground (a)
IN THE MATTER OF AN APPLICATION UNDER
SECTION 84 OF THE LAW OF PROPERTY ACT 1925
BETWEEN:
GEORGINA LEANDER SWINDELLS
and
MARJORIE EUNICE GREEN Applicant
Objector
RE: 1A RECTORY GARDENS, SHEFFIELD S21 1TB
Before: Judge Edward Cousins
Sitting; at Sheffield Combined Court Centre
on
18 February 2014
Mrs Lorna Rainey, lay representative, and friend, for the Applicant
Mr Amit Gupta, of Counsel, instructed by Band, Hatton and Button, Solicitors, for the Objector
© CROWN COPYRIGHT 2014
The following case is referred to in this decision.
Jack Shaw and Doris Shaw, Re The Larches, 309 Crewe Road, Willaston, Nantwich, Cheshire, CW5 6NP (LP/71/2007).
DECISION
THE APPLICATION
1. By an application in Form LPA (“the Application”) dated 10th March 2013 the Applicant, Ms Georgina Leander Swindells (“the Applicant”) has applied to the Tribunal for the discharge or modification of a Restrictive Covenant (“the Restriction”) affecting a parcel of land lying to the west of High Street, Killamarsh, Sheffield (otherwise referred to as the land lying to the rear of 34 High Street, Killamarsh) (“the Burdened Land”). On 8th February 2011 the Applicant was registered as freehold proprietor of the Burdened Land at HM Land Registry under title number DY321334, as shown edged red on the title plan.
2. Note 1 in the Charges Register of the title contains the following entry:
“(19.04.2000) a transfer of the land in this title dated 22 October 1999 made between (1) Robert Owen Green Marjorie Eunice Green (2) Richard Lee Fowler and Elizabeth Anne Fowler contains restrictive covenants”.
3. The terms of the Restriction as contained in the transfer dated 22nd October 1999 (“the October 1999 Transfer”) are as follows:
“The Transferees to the intend that this covenant shall be binding on the property and every part thereof into whosoever hands the same may come hereby for themselves and their successors in title jointly and severally covenant for the benefit of the remainder of the land comprised in 34 High Street Killamarsh (shown edged in blue on the said plan) and every part thereof:
(a)….
(b) To use the property hereby transferred only as a means of access from Rectory Gardens to the site of the former St Giles Church of England Primary School Killamarsh (shown edged in green on the said plan) for the purpose of renovating the former school building fronting to the High Street and thereafter using the same as a single private dwelling house with the usual outbuildings appurtenant thereto”
4. The objector to the Application is Mrs Marjorie Eunice Green (“the Objector”). She is the current freehold owner of 34 High Street, Killamarsh, aforesaid, (“the Benefited Land”) which she formerly owned jointly with her husband Mr Robert Owen Green, now deceased. The Benefited Land remains unregistered.
THE BACKGROUND
5. The land immediately abutting the Burdened Land to its south is the former St Giles Church of England Primary School (“the Former School”). The Former School became redundant to the needs of the Church some decades ago, and was purchased by Mr Richard Lee Fowler and Mrs Elizabeth Fowler. On 9th August 1999 the whole of the land comprising the Former School was registered on a first registration under title number DY311855. Formerly the Burdened Land had formed part of the garden of the Objector’s land its western end. However, at the time of purchase of the Former School by Mr and Mrs Fowler there was no vehicular access from Rectory Gardens to the north, although there is a pedestrian access from the High Street. Thus, in order to facilitate vehicular access from Rectory Gardens to the Former School by means of an accessway (“the Accessway”), the Burdened Land was transferred by the October 1999 Transfer from Mr Robert Owen Green and the Objector to Mr and Mrs Fowler. This provided an essential link between the Former School and Rectory Gardens. The Restriction was imposed by Mr Green and the Objector at that stage in order to control noise and disturbance and preserve privacy for the Benefited Land.
6. By a transfer of part dated 26th November 2010 (“the November 2010 Transfer”) made between made (1) Elizabeth Anne Goodlad, Eric Goodlad and Gwenyth Margaret Goodlad (“the Goodlads”), and (2) the Applicant, two parcels of land were transferred to the Applicant, described respectively as 1a Rectory Gardens, Killamarsh, and land lying to the west of the High Street, Killamarsh. These parcels are shown edged red and coloured brown on the plan attached to the November 2010 Transfer. 1a Rectory Gardens comprises the eastern part of the Former School and was removed from title number DY311855 and given title number DY456760, and it is shown edged red on the title plan. The other parcel of land forming part of DY456760 is the Accessway which was removed from title number DY313708. The Goodlads continue to remain the freehold proprietors of the bulk of the land comprised in title number DY313708 since registration on 5 August 2004.
7. The land transferred by the November 2010 Transfer was thereafter registered in the name of the Applicant at HM Land Registry on 8th February 2011 under title number DY456760. Note 6 of the Charges Register of the title states that the land transferred is subject to the rights granted by the November 2010 Transfer. This is a reference to a right of way at all times and for all purposes to and from any part of the Retained Land (as defined) with or without vehicles over such part of the Shared Access (as defined) within the curtilage of the land transferred. The Retained Land is that retained by the Goodlads, i.e. the land now comprised in title number DY311855 shown edged red on the title plan, and lying to the west of the land transferred to the Applicant under title number DY456760, as shown edged in green on that plan. The Shared Access is a reference to the land coloured brown on the transfer plan to the November 2010 Transfer falling within the curtilage of the Applicant’s land.
8. In summary, the Burdened Land provides the link between the two parcels of land registered in favour of the Applicant, but which is subject to the Restriction made on transfer to the Applicant by the Objector and her then husband (now deceased).
THE ISSUES
9. There are essentially 3 issues to be determined. These are whether:
(1) There have been changes in the character of the properties (particularly the Objector’s property);
(2) There have been any changes in the neighbourhood; and
(3) There are any other material circumstances to take into account so as to render the Restriction obsolete.
THE CASE FOR THE APPLICANT
10. The Applicant contends that the Restriction inhibits the Former School building from being renovated into more than one dwelling-house. The Applicant therefore applies to discharge or modify the Restriction as she wishes to construct up to five residential units together with car parking on Burdened Land.
11. The basis of the relief sought by the Applicant is contained in section 84(1)(a) of the Law of the Property Act 1925 (“the 1925 Act”), which provides as follows:
“The Upper Tribunal shall….. have power from time to time, on the application of any person interested in any freehold land affected by an restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied –
(a) That by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete..”.
12. In her Statement of Case annexed to the Application the Applicant makes the following submissions in support of her Application:-
(1) There has been a change of circumstances in that there it has been change in ownership since 2010, and there has been a “split” in the title deeds leaving the canteen area of the Former School without planning permission. The Restriction denies her the ability to obtain planning consent to improve or renovate the area.
(2) There is a national housing shortage, and that a small development of five residential units would add to the opportunities for housing in the area which could focus on quality individual housing for elderly persons, and providing choice.
(3) The Applicant also makes reference to the NEDDC area housing strategy which identifies that it is a priority area with a growing elderly population, as an ex-mining village suffering deprivation.
(4) There is affordability as housing prices are very low, and there is a requirement for supported housing both in the private sector and the public sector.
(5) The Applicant also contends that given the nature of the intention of the proposed development it is not anticipated that there would be a vast increase in the noise level following the redevelopment of the site.
(6) The Restriction should be lifted to improve the aesthetic appearance of the area, and to enable a planning consent to be sought and obtained as further renovation to the Former School is at present unviable.
THE CASE FOR THE OBJECTOR
13. The Objector says that she was a party to the original sale of the Burdened Land and imposed the terms of the restriction for specific reasons. It is contended that these reasons remain as relevant today as they did when they were imposed. These reasons were to abate, minimise and control the noise levels and disturbance over the Burdened Land, and further to preserve the privacy of those living and visiting the Objector’s land. It is further contended that the Objector did not want to be overlooked by the members of more than one household, and that position still remains. She is an elderly lady and suffers from ill health. The Restriction therefore still continues to benefit and protect her personally, as well as protecting the Benefited Land from over-development, for the reasons set out below.
Character of the Property
14. The character of the land itself has not changed, or materially changed. Any references in changes to other parcels of land are not relevant to this ground. Accordingly, it is contended that this ground is not therefore available to the Applicant.
Changes in the neighbourhood
15. It is contended that the Application’s fundamental premise is not that the neighbourhood surrounding the Former School has changed, but that the Applicant intents to effect a change. Accordingly, it is said that this ground is not open to the Applicant.
16. Further, and in any event, whilst the extent and nature of the term “neighbourhood” is one of fact and degree, the Objector submits that:
(1) The neighbourhood of the Former School has not changed or has not changed materially (either recently or in the relevant past);
(2) The only change or substantial change is to the change in use of the Former School and its sub-division, and the subsequent building works effected to it;
(3) The changes to the Former School have not changed or changed materially the neighbourhood;
(4) Accordingly the only change is to the Former School, rather than the neighbourhood.
17. Thus it is asserted that the Applicant has failed to substantiate the first and second Issues.
Other material circumstances
18. The Objector contends that the Tribunal should construe other material circumstances, particularly where the primary (or a substantial) purpose of discharge of the Restriction appears to be for economic reasons.
19. The Objector’s primary contention is that the reasons given for discharge, whether individually or collectively, are not (a) material or sufficiently material, and in any event (b) do not merit discharge or variation. The detailed points in support of this contention are set out in the Objector’s Grounds of Objection (paragraphs 28 to 32)
Obsolescence
20. In any event, even if one or more of the above grounds is satisfied, it is contended by the Objector that the Tribunal must be satisfied that the change has rendered the Restriction (in particular clause (b)) obsolete. It is asserted that the Applicant has failed to substantiate how and why the Restriction is obsolete. In any event, the Objector contends that the restriction is not obsolete and that it still retains its full purpose, or alternatively a material and/or substantial part of its purpose. In this respect, the Objector submits that the continuing purpose of the Restriction is self-evident.
21. Furthermore, the Objector contends that the purpose of the Restriction is to regulate:
(1) the use of the land;
(2) the use of the Former School; and
(3) Impliedly, the ethos of the surrounding buildings.
22. In summary, the Objector as the original covenantor and still remaining in occupation of the Benefiting Land wishes to retain the status quo continued peaceful enjoyment of the benefit. She does not wish her privacy and quiet enjoyment to be disturbed in order that the Applicant can make financial gain from use of the Burdened Land. She therefore contends that the Restriction is not, and cannot, be deemed to be obsolete.
THE LEGAL POSITION
23. The well-established test to be applied when considering the provisions of Section 84(1)(a) of the 1925 Act has been summarised in the case of Re The Larches, 309 Crewe Road, Willaston, Nantwich, Cheshire, CW5 6NP . In paragraph 29 Mr Francis FRICS states as follows:
“The test by which it is to be judged whether a “restriction ought to be deemed obsolete” appears form the Court of Appeal decision in Re Truman, Hanbury, Buston & Co Ltd’s Application [1956] 1 QB 261. In issue in that case were estate covenants as to user. At 271-2 Romer LJ, with whom Evershed MR and Birkett LJ agreed, said this:
“It seems to me that the meaning of the term “obsolete” may very well vary according to the subject matter to which it is applied. Many things have some value, even though they are out of date in kind or in form – for example, motor cars or bicycles, or things of that kind – but here were are concerned with its application to restrictive covenants as to user, and these covenants are imposed when a building estate is laid out, as was the case here of this estate in 1898, for the purpose of preserving the character of the estate as a residential area for the mutual benefit of all those who build houses on the estate or subsequently buy them.
It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what is intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word “obsolete” is used in connection with section 84(1)(a).”
Truman’s case concerned, as I say, estate covenants, whereas the present application relates to restrictions imposed for the benefit of a particular property. The test of obsoleteness is nevertheless the same, and the question that requires to be answered is whether the purpose for which the restrictions were imposed can no longer be served”.
THE EVIDENCE IN THE CASE
24. The evidence in the case was twofold, namely evidence of fact, and expert evidence. The factual evidence was of short compass.
Evidence of fact
25. The evidence relied upon by the Applicant was restricted in its breadth by virtue of two rulings I made during the course of the hearing. First, I found that the Applicant could not rely upon her architect, Mr Cooper, as an expert in the case. Secondly, I found that there was no agreement made between the parties at an earlier stage whereby the Objector had agreed with the Applicant to “lift” the Restriction.
26. The Applicant and Mrs Rainey provided witness statements, and the Applicant gave evidence. They sought to assert that there have been material changes in the neighbourhood and that the covenant was therefore obsolete. There was also a general reliance by them on the fact that the Former School had deteriorated, and the housing needs in the area have changed, and reliance was placed upon the National Housing Strategy. The Applicant did agree in cross-examination that the National Housing Strategy did not directly refer to the area of Killamarsh and it was said that the Restriction should be discharged because of “socio-economic reasons”.
27. Mr Cooper was also called, but his evidence was limited to factual evidence only as I had already ruled that his status was not that of an expert in the case and therefore he could give no expert evidence, as such. He provided some further factual evidence which had no real bearing on the matters in hand, such as on the planning position. Mrs Goodlad also gave evidence on behalf of the Applicant in which she made reference to crime and vandalism in the neighbourhood and that windows to the Former School were being broken. She said that she had tried to negotiate a settlement with the Objector on several occasions as to the lifting of the Restriction, and on one occasion an offer of £5000 was made.
28. In so far as the Objector was concerned, her evidence was agreed and it was unnecessary for her to attend the hearing. Her son Mr John Green gave evidence. He rejected the suggestion that there had been an agreement as to the discharge of the Restriction. As he said in cross-examination, “he would not be here [i.e. in court] had there been any such agreement.
The Crapper and Haigh Expert Report
29. The parties instructed a single joint expert, Mr John Francis, who produced his report dated 4 October 2013 (“the Report”). This concludes that:
(1) The character of the Objector’s Land and the neighbourhood in 1999, and now, are generally the same (paragraph 5.2.1);
(2) There has been no material change in the neighbourhood (paragraph 5.3.1);
(3) The Restriction still serves it original purpose (paragraph 5.5.1);
(4) The Restriction cannot be described as obsolete on either parties’ version of events (paragraph 5.6.3); and
(5) If the Restriction was modified or discharged the compensation due to the Objector should be £10,000.
30. The circumstances giving to rise to the instruction of a single joint expert are as follows in a letter dated 7th August 2013 Mr Malcolm Thomas (a partner in the firm of Solicitors instructed by the Objector) wrote to the Applicant setting out various matters relating to the Application, and noting the fact that the Tribunal required expert evidence to be filed and served by 19th September 2013. It was indicated in this letter that it was possible for both parties separately to instruct individual experts to provide reports, but the suggestion was made that the parties jointly instruct a single joint expert in which case the costs would be borne equally between the two parties. The letter then goes on to say if either party disagreed with the joint expert “… it is sometimes open to that party to produce further expert evidence from an alternative expert”. It was also indicated that the Objector was happy to proceed by way of a single joint expert. Confirmation was then sought as to whether the Applicant would be willing to agree to instruct a single joint expert and that the cost would be borne equally. Subsequently the identity of the single joint expert was confirmed, namely Mr Francis, in an e-mail from the Objector’s Solicitor sent on 30th August 2013.
31. Under cover of an e-mail dated 3rd September 2013 Mr Thomas then sent a draft letter of instruction to the expert and sought any comments from the Applicant and Mrs Rainey. In her response on 3rd September 2013 Mrs Rainey confirmed that the Applicant was happy with the contents of the letter of instruction to be sent to the expert and was happy for it to be sent in its current form.
32. Mr Francis produced the Report on 4th October 2014, a summary of which I have set out in paragraph 29, above. On 8th October 2013 Mr Thomas sent an e-mail to the Applicant and Mrs Rainey referring to the conclusions of the Report and stating that it seemed on the basis of the expert evidence there was no reasonable prospect of the Applicant’s case, or any part of it, succeeding as the Restriction was not obsolete. The Applicant was then invited to withdraw her application under Part 20 of the Tribunal Procedural (Upper Tribunal) (Lands Chamber) Rules 2010 (“the 2010 Rules”), and pay the Objector’s legal costs. It was also stated that unless a response was made within 7 days confirming the same, instructions would be taken as to whether or not to apply to strike out the Applicant’s case under Rule 8 of the 2010 Rules. A detailed response was then made by the Applicant in a letter dated 9th October 2013 setting out the reasons why she considered the Applicant was incorrect in certain respect in the Report.
PRELIMARY ISSUES
The evidence of Mr Andrew Cooper
33. In the event the Objector did not seek to strike out the Applicant’s case, and the matter thereafter proceeded to trial, and in December 2013 there was an exchange of witness statements of factual evidence upon which the parties intended to rely. One such proposed witness was Mr Andrew Cooper of A & D Architects, the Applicant’s architect, who provided a letter dated 29th August 2013 in which he made reference to planning policy issues and land use. In an e-mail dated 30th January 2014 from the Objector’s Solicitors to the Applicant it was stated that if she wished to rely upon Mr Cooper as an expert at trial. It was indicated to her that no permission had been granted for expert evidence to be adduced from anyone other than Mr Francis and that this did not prevent Mr Cooper from giving ordinary “factual evidence”, but objection might be made to the evidence being produced by him which strayed outside the factual. It was also stated that if the Applicant wished to call Mr Cooper to give expert evidence then she would need to apply to the Tribunal before the hearing, and in that event an objection to such application would be made, given the existence of the Report from the single joint expert.
34. In an e-mail from Mrs Rainey sent on 15th January 2014 to the Tribunal, and the Solicitors for the Objector, it was stated that guidance was sought as to whether or not Mr Cooper could be called at trial to give evidence regarding the Application. It was stated that Mr Cooper would like to add to his original statement with regard the local housing needs and requirements, and to give evidence based on his knowledge as a long standing architect within the region. It was stated that evidence would be provided as to the “other circumstances” which would prevent the covenant from being deemed obsolete.
35. In its response made on 5th February 2014 the Tribunal stated that Applicant could seek to add to Mr Cooper’s evidence so as to address the issues specified by the Applicant, and if leave was necessary under the Rules, then leave would be granted to amend his witness statement to this effect. However, it was stated that the amended witness statement should be served by close business on Friday 7th February 2014 upon the Tribunal and the Objector’s Solicitor so as to enable the latter to be able to make any objection to this course of action. Leave was given to the Objector to file any witness statement in response by close of business on 12th February 2014. Duly, a supplemental witness statement from Mr Cooper dated 7th February 2014 was then provided to the Tribunal and the Objector. In this Mr Cooper provided a number of opinions on the question of obsolescence.
36. However, although leave was granted by the Tribunal to amend Mr Cooper’s original witness statement, it is to be noted that no leave was granted as such at that stage by the Tribunal for any further expert evidence to be adduced at trial, and if such an application had been formally made it would have been opposed by the Objector, as stated by her Solicitors. It was therefore necessary to deal at trial with a preliminary issue as to whether or not the supplemental witness statement produced by Mr Cooper could be adduced as expert evidence during the trial. I heard submissions from Mrs Rainey, and Counsel for the Objector on this issue. I was also referred to a letter dated 10th February 2014 from the Objector’s Solicitors to the Tribunal in which a number of points were made.
37. A ruling on the issue was then made in the following terms:-
(1) No formal application for further directions for the filing for any further expert evidence was ever made by the Applicant. Permission was given to provide a supplementary statement from Mr Cooper directed to the points sought by the Applicant, but Mr Cooper was never accorded the status of an expert in the case.
(2) Mr Francis was jointly instructed by both parties, prior agreement having been given for that course of action to occur. He then provided an expert’s report, as instructed. It would seem that the Applicant then became dissatisfied with the conclusions reached by Mr Francis, and thereafter sought to rely upon Mr Cooper as her architect to address issues which she considered should be put before the Tribunal.
(3) His supplemental statement dated 7th February 2014 contains the opinions of Mr Cooper amplifying various points he had made in his earlier letter relating perceived changes of circumstances that had made the covenant (in his opinion) obsolete. This document can in no way be described as satisfying the necessary test in relation to the production of expert evidence. His role was not impartial in that he was retained as the Applicant’s architect looking after the interests of his client.
(4) Mr Cooper failed to address relevant factors relating to the test of obsolescence, but instead referred to “Housing Land Crisis” and new “Planning Duties” and the financial crisis of 2008. These matters are, in my judgment, irrelevant to issues at hand.
In such circumstances I ruled that the Applicant could not rely upon the evidence of Mr Cooper save in so far as such evidence related to issues of fact in the case.
The alleged agreement of 11 April 2013
38. A second preliminary issue which required to be addressed prior to the commencement of the evidence in the case related to an alleged agreement said to have been entered into between the Applicant, Mrs Rainey, Mr John Green (the Objector’s son), and his sister, Catherine on 11th April 2013. This said to have taken place at the Former School.
39. In her undated witness statement it is contended by Mrs Rainey and the Applicant that Mrs Rainey asked Mr John Green whether the family would support the Application to have the restriction “lifted”, and he is said to have informed both Mrs Rainey and the Applicant that this would be the case. Apparently this meeting had been established in order for Mr Green to view the proposed plans for conversion of 1a Rectory Gardens, but at that stage there were only initial drawings as the Applicant had not applied for planning permission. The Applicant similarly contends that the question posed by Mrs Rainey as to whether or not the Application to the Lands Chamber would be supported, and Mr Green apparently asserted that the Green family was supportive of this.
40. Mrs Rainey then sent an e-mail to Mr John Green and the Applicant dated 22nd April 2013 in which reference is made to this meeting, and in which it stated that “…we hope that your mum understands that Gina wants to proceed with as little upset for her as possible and it is great to hear that you can all move forward in a way that is positive for both parties.” Reference is then made to the attachment to the e-mail which was the completed application form to the Lands Chamber, and Mrs Rainey then sought a response so that the paperwork could be completed. In his response dated 29th April 2013, Mr John Green merely asserts that he has applied to the Lands Chamber for an extension of time so that he could consider the matter further. He also made reference to the fact that he had sent to the Lands Chamber an authorisation from the Objector to act on her behalf due to age and ill-health. In a further e-mail dated 21st May 2013 from Mrs Rainey to Mr John Green, Mrs Rainey asks whether or not the family “…will have made a decision on whether to go ahead with lifting the covenant.” Following this an email was sent on 10th June 2013 from the Objector’s Solicitor to which was attached a letter and a Notice of Objection.
41. For his part Mr John Green in his witness statement dated 19th December 2013 agrees that he and his sister Catherine met with Mrs Rainey and the Applicant. However, he contends that the discussions that took place were somewhat one sided in that the Applicant and Mrs Rainy were saying how nice it would be when the development was completed, and how much it would improve the area and the value of the Objector’s house. Mr Green states that the only discussion that he can recall in respect of the Restriction was that they did not think they could do anything further until the Covenant was lifted. He said that he felt as though he and his sister had been talked to rather than having any discussion, and they were quite eager to leave and did leave quite quickly.
42. It is on this basis that it as suggested by Mrs Rainey that an agreement was reached between Mr John Green, on behalf of the Objector, and the Applicant to the effect that they undertook to “lift” the Restriction so that the development of 1a Rectory Gardens could proceed.
43. I made an oral ruling to the effect that there was absolutely no credible evidence in support of any such agreement having taken place for the following reasons – there is nothing in writing to support that contention, and it only appears to have surfaced in the witness statements of the Applicant and Mrs Rainey. In other words it has never been a pleaded issue in the case. Clearly the perceptions of the various persons present at the meeting are at variance. What seems to have occurred that there may well have been a short conversation about the terms of the Restriction. However, it is clear, in my judgment, that at no stage did Mr John Green or his sister gave any indication that they would agree to the “lifting” of the Restriction, and if they had so verbally agreed there would be some evidence in writing to this effect. There is absolutely nothing to support this contention, and I so find.
THE DECISION
44. Having regard to the various issues of fact and law, to which I have referred above, and I have come to the conclusion that the application is wholly without merit and must be dismissed. The evidence supports the Objector’s case that the Restriction still serves its purpose and can in no sense be described as obsolete. My reasons as follows:
(1) I am satisfied that the findings made by Mr Francis in the Crapper and Haigh Report are a true and accurate reflection of the circumstances. I indorse his conclusions, namely that the character of the Objector’s land and the neighbourhood in 1999, and now, are generally the same; there has been no material change in the neighbourhood; the Restriction still serves its original purpose; and the Restriction cannot be describe as obsolete.
(2) Subsequently the Applicant has disagreed with the findings of the jointly instructed expert. At that stage she should have made a formal application to instruct her own expert evidence to be adduced in the case. She did not do so, but attempted to rely upon her architect, Mr Cooper, to provide opinion evidence which he was not qualified to do.
(3) This being so, in my judgment the findings of Mr Francis stand as being conclusive of the circumstances.
(4) Further, in my judgment the reasons for the imposition of the Restriction remain as relevant today as they did when imposed in 1999. The Applicant has failed to persuade me to the contrary.
(5) In such circumstances this is an end to the matter and the Application for the discharge or modification of the Restriction has not, in my judgment, been made out.
45. Accordingly, I dismiss the Application.
Dated: 25 March 2014
Judge Edward Cousins