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
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the extension by the general public on three days per week. They relied on
obsoleteness.
Where a restriction under a section 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.
decision
This was the hearing of an application to the Lands Tribunal by
David and Jeffrey Caton for the modification of a planning agreement.
tribunal.
represented the objectors.
MR GEORGE BARTLETT QC: 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
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
Van Houten, who had prepared the application and an accompanying 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
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
chief assistant in the development control section of the 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
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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
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.
