Restrictive covenant — Discharge or modification — Planning agreement — Law of Property Act 1925 section 84(1) — Town and Country Planning Act 1990 section 106 — Whether restrictions in 1990 planning agreement obsolete
The applicants were the freehold owners of an
18-hole golf course in the green belt. In October 1990, in connection with the
grant of planning permission for extensions and alterations to the clubhouse,
they entered into an agreement under section 106 of the Town and Country Planning
Act 1990 with Rochford District Council, the respondent objectors. The
agreement restricted the use of the dining room and mixed lounge, provided in
the extension built in 1990, by non-members to no more than two days per week
and no more than 52
allow the use of the extension by the general public on three days per week.
They relied on obsoleteness.
106 agreement was imposed in order to implement planning policy, and, since it
was imposed, planning policy had changed to the extent that it would no longer
justify the restriction, the restriction might well be obsolete; but where
planning policy had not changed in a way that removed the justification for the
restriction, any claim that the restriction had become obsolete was almost
certain to fail. In the present application, while there had been a change in
planning policy, the effect of the policies remained much the same as before.
The restriction was manifestly not obsolete.
No cases are referred to
in this report.
Lynne Van Houten appeared for the applicants with
leave of the tribunal; Martin Goodman, solicitor to Rochford District Council,
represented the objectors.
Giving his decision, MR GEORGE BARTLETT QC, president, said: The applicants in
this case are the freehold owners of land on which Ballards Gore Golf Club,
Canewdon, is situated. The golf course extends to 116 acres within an area
shown as green belt in the Rochford District local plan. There has been a golf
course on the site for approaching 20 years. It started as a nine-hole course
and was extended to 18 holes in the early 1980s. In 1986 planning permission
was granted by the respondent council for an extension to the clubhouse and
provision of residential accommodation for staff of the club. Additional
proposals for extensions and alterations to the clubhouse were contained within
an application made in 1988 (ref ROC/281/88). The applicants were advised by
the council that planning permission would be unlikely to be forthcoming unless
they were prepared to enter into a legal agreement under the provisions of
section 106 of the Town and Country Planning Act 1990 and section 33 of the
Local Government (Miscellaneous Provisions) Act 1982. Subsequently, such an
agreement was signed on 4 October 1990 and contained the following
restrictions:
Notwithstanding the provisions of the Town and
Country Planning General Development Order 1988 (or any Order revoking and re‑enacting
that Order) the said clubhouse known as Ballards Gore Gold Club Apton Hall Road
Canewdon Essex shall not be enlarged altered or extended without the prior
consent in writing of the Council.
The extension permitted on the said land under
planning application number ROC/281/88 referred to in the Second Schedule
hereto shall not be used or occupied for any purpose save to provide
entertainment and billiard facilities ancillary to the main use of the existing
building as a golf clubhouse except that the dining room and mixed lounge shown
edged green on the plan may be used for properly organised functions for
non-members, such functions to be limited to no more than two days in any one
week and not to exceed fifty two days per annum and all such functions to be
properly recorded in a function book which will be kept at Ballards Gore Golf
Club and be available to the Council at any time for inspection.
The extension built under the permission that was
subsequently granted contains a dining room and mixed lounge. The applicants
now seek the modification, under section 84 of the Law of Property Act 1925, of
the restriction on the use of the extension so as to allow use of the dining
room and mixed lounge by the general public on Fridays, Saturdays and Sundays.
The council object to the proposed modification.
The applicants were represented at the hearing by
Mrs
statement. She gave no professional qualification. I gave her leave at the hearing
to represent the applicants only because to have refused would have involved an
adjournment inconveniencing the objector, and giving rise to additional costs.
Mrs Van Houten called no evidence, but simply addressed me on the basis of the
statement that had accompanied the application, and a summary of this case is
in a statement agreed between her and the objectors. The summary of her case
was as follows:
4.2 The applicants argue that the use of the
clubhouse has been operated in accordance with the agreement, but that the
council has not taken any steps to investigate whether the requirements are
being adhered to.
4.3 The applicants argue that two new golf
courses have been allowed in the green belt within the district, which both
have facilities which are used by non-members of the golf clubs, rendering
Ballards Gore at a disadvantage.
4.4 It is argued by the applicants that the
proposed use will not affect the openness of the green belt nor the purposes
for including land within it.
4.5 It is argued by the applicants that the
proposed limited use by the general public will not significantly intensify the
current use of the site, and that the site will continue to be primarily a golf
course.
4.6 The applicants argue that national guidance
has been revised in recent years to seek a somewhat more lenient attitude
towards development in the green belt subject to certain specific criteria
being satisfied.
4.7 The applicants argue that the criteria
referred to above are satisfied and that additional limited use of existing
facilities will not harm the green belt or the reasons for including land
within it.
Thus her case consisted of asserted facts and
opinion, unsupported by any evidence, and argument. Appendices to the statement
accompanying the application included extracts from PPG 2 (on green belt), and
she put in during the hearing a planning permission (7 April 1987) for a golf
course at Queen’s Park Avenue, Billericay, an approval of details (1 July 1992)
under an outline planning permission for a new clubhouse at Burstead Golf Club,
Billericay, and an appeal decision (30 January 1990) granting planning
permission for a golf course and the conversion of a farm building to form a
clubhouse at Walfords Farm, Rayleigh. Her point on these was that they contained
no restriction of the sort that is the subject of the present application.
In answer to me, she said that she thought that
the purpose of the council, in imposing the restrictions in the agreement, was
to restrict the use of the clubhouse in order to implement their planning
policy. She referred in this respect to policies GB1, LT4 and LT7 in the
Rochford District Local Plan 1988. The 1988 plan had since been replaced by the
first review, adopted in 1995. Policy had not changed — indeed, LT7 had been
made more tight, although that policy related to new, rather than to existing, golf
course facilities. What had changed since the date of the agreement was that
other golf clubhouses had been constructed without restrictions on their use.
Evidence for the objecting council was given by
Mr
council, by whom he has been employed, primarily in development control
casework, for the last 16 years. He said that the clubhouse extension had been
permitted and the agreement entered into against the background of policies
contained in the Essex structure plan and Rochford District local plan. Policy
S9 in the structure plan provided that:
Within the green belt permission will not be
given, except in very special circumstances, for the… extension of existing
buildings (other than reasonable extensions to existing dwellings), or for…
small-scale facilities for outdoor participatory sport and recreation…
In the local plan, policy GB1 reiterated much of
S9, and policy LT7, encouraging proposals for further golf courses, included:
When considering the establishment or extension
of clubhouses in association with the above uses policy LT4 will be taken into
account…
Policy LT4, which encouraged proposals for indoor
and outdoor sports clubs, provided that regard would be had to:
(i) the likely noise and disturbance resulting
from the activities;
(ii) the need to limit the use of the building
and site in the interest of residential amenity;
(iii) the likely volume of traffic that would be
generated;
and other factors.
The agreement was proposed by the council to
control the type of activities in the clubhouse in order to make acceptable the
proposed extension of a clubhouse in the green belt. The reason that the
restrictions were contained in a section 106 agreement rather than imposed by condition
was to make them stronger — to give the council a more direct measure of
control (through injunctive proceedings) than they would have had if they had
to rely on their enforcement powers under the 1990 Act.
Since 1990, section 54A had been added to the Town
and Country Planning Act 1990, and this, by requiring that a determination
under the Planning Act must be made in accordance with the development plan
unless a material consideration indicates otherwise, more emphasis was now
given to the development plan. Planning policy considerations in relation to
the clubhouse use remained broadly the same as when the restriction had been
imposed, and thus the restriction could not be said to be obsolete.
A request to vary the restriction had been put to
the council in 1997 and the matter was reported to the planning services
committee on 27 November 1997. The committee decided that the proposed change
in the use of the clubhouse would represent an intensification of the activity
on the site, contrary to green-belt policies, and the modification was not
therefore considered to be acceptable.
On Mrs Van Houten’s assertion that since the date
of the agreement planning permissions had been granted for other golf
clubhouses without any restrictions as to use, Mr Barnes said that the two
Billericay permissions related to land in a different local authority area, in
which planning policy was not the same as in Rochford; and that the permission
granted on appeal for the conversion of a farm building to a clubhouse at Walfords
Farm, Rayleigh, was not implemented, but a later permission granted by the
council for such conversion was implemented and this contained a condition
restricting the use of the restaurant to members on the day of play.
The sole ground on which modification of the
restriction is sought by the applicants is obsoleteness. In my judgment, where
a restriction under a section 106 agreement was imposed in order to implement
planning policy and since it was imposed planning policy has changed to the
extent that it would no longer justify the restriction, the restriction may
well be obsolete; but where planning policy has not changed or has not changed
in a way that removes justification for the restriction, any claim that the
restriction has become obsolete is almost certain to fail. Here, while there
has been a change in planning policy, the effect of the policies remain much
the same as before. The evidence does not suggest that the council have ceased
to impose similar restrictions when granting planning permission for similar
developments. Also, on the evidence, while it is unlikely that the council have
sought to view the function book (as they are entitled to under the agreement),
this does not suggest to me that they are unconcerned about enforcing the restriction.
Were there to be breaches of the covenant (and Mrs Van Houten said that there
had been none) the council might well expect to be alerted to them in other
ways than the inspection of the function book.
Mrs Van Houten contended that the proposed use
would not affect the openness of the green belt or the purposes of including
the land within it. Whether it would do so, however, is a matter of planning
judgment. The view of the council is now, as it was in 1990, that the use would
be contrary to green-belt policy, and there is no evidence before me to suggest
that this view is wrong.
In my judgment, the restriction is manifestly not
obsolete, and the application therefore fails.
I heard submissions on costs. The applicants will
pay the objectors’ costs, such costs to be agreed and if not so agreed to be
the subject of detailed assessment on the standard basis by the Registrar of
the Lands Tribunal in accordance with r 44.4 and r 44.7 of the Civil Procedure
Rules. The procedure laid down in r 52 of the Lands Tribunal Rules 1996 will
apply to such detailed assessment.
Application refused.
