Restrictive covenants — Application under Law of Property Act 1925, section 84(1)(a), (aa), (b) and (c) — Whether restriction obsolete — Whether objectors enjoyed practical benefits of substantial value or advantage — Whether tribunal’s discretion can be exercised in absence of planning permission — Failure to provide agreed statement of facts
The
application land was part of the garden of a large detached house. A conveyance
dated July 24 1953 of, inter alia, the application land contained a
covenant prohibiting any building or erection on the land. The applicants
applied to the tribunal to discharge the covenant so as to permit the erection
of a detached two-storey dwelling-house. At the hearing they were given leave
to amend their application to modify the covenant to permit the erection of a
bungalow. Their application was under section 84(1)(a), (aa), (b)
and (c) of the Law of Property Act 1925; the objectors were owners of
several adjoining properties. The applicants had not applied for planning
permission for the erection of the bungalow. At the hearing the member was
informed that the experts had been instructed not to agree the agreed statement
of facts.
the character of the property and the neighbourhood such that the restriction
was now obsolete for the purposes of section 84(1)(a) of the 1925 Act.
For the purposes of section 84 (1) (aa), the proposed use of the land
was a reasonable user impeded by the restriction, and the restriction did not
secure practical benefits of substantial value or advantage to the objectors.
There was no injury to the objectors’ properties for the purposes of section
84(1)(c). The application therefore succeeded on paras (a), (aa),
and (c) and no compensation was awarded to the objectors. It did not
succeed under para (b). The expert witnesses were under an obligation to
agree material facts, and the failure to agree was a matter to be taken into
account in the award of costs. The objectors were ordered to pay half the applicants’
costs.
The following
cases are referred to in this report.
Bowden’s
Application, Re (1983) 47 P&CR 455; [1983] JPL
819, LT
Bradley
Clare Estate’s Application, Re (1988) 55 P&CR
126, LT
Chapman’s
Application, Re (1981) 42 P&CR 114; [1981] JPL
520, LT
Gilbert v Spoor [1983] Ch 27; [1982] 3 WLR 183; [1982] 2 All ER 576;
(1982) 44 P&CR 239, CA
Dransfield’s
Application, Re (1975) 31 P&CR 192; [1975] JPL
539, LT
Gaffney’s
Application, Re (1974) 35 P&CR 440; [1975] JPL
159, LT
Henderson’s
Conveyance, Re [1940] Ch 835
Ling’s
Application, Re (1955) 7 P&CR 233; [1956] JPL
380, LT
Truman,
Hanbury, Buxton & Co Ltd’s Application, Re
[1956] 1 QB 261; [1955] 3 WLR 704; [1955] 3 All ER 559; (1955) 7 P&CR 348;
[1955] EGD 169; 166 EG 564, CA
Suzanne Ornsby
(instructed by Horwood Patterson, of Leicester) appeared for the applicants,
Frank Edward and Sarah Jane Nichol; Nicholas George (instructed by Harvey
Ingram Owston, of Leicester) appeared for the objectors.
Giving his
decision, MR PH CLARKE said: This is an application under section 84 of
the Law of Property Act 1925 by Dr FE and Mrs SJ Nichol (‘the applicants’) for
an order modifying a restrictive covenant affecting freehold land at the rear
of 27 Elms Road, Stoneygate, Leicester (‘the application land’), to permit the
erection of
Sackville Gardens.
Suzanne
Ornsby, of counsel, appeared for the applicants and called Simon Spencer frics, senior partner of Spencer Birch,
chartered surveyors, of Nottingham. Nicholas George, of counsel, appeared for
the objectors and called John MS Whitehead CBE DL, William M Simpson FRICS, a
partner in Snow & Astill, chartered surveyors, of Leicester, and G Wyatt, A
D Crofton, G Jewell and P Day, objectors.
Facts
When I
inquired at the start of the hearing as to a statement of agreed facts I was
told that the expert witness for the objectors had been instructed not to agree
such a statement. I did not pursue the matter but, if this is true, I would say
that it is improper for an expert witness to be given or to accept instructions
not to agree facts. This is a matter which the parties may wish to refer to in
their representations on costs. The absence of a statement of agreed facts
increases the length of a hearing and the time taken to prepare the decision.
Every hearing should be accompanied by a comprehensive statement of agreed
facts and an agreed bundle of documents. It is the responsibility of the
solicitors to the parties to ensure that these documents are prepared before
the hearing.
From the
evidence I find the following facts:
1. The
application land is in the Stoneygate district of Leicester, about two miles
south of the city centre. Stoneygate was the principal residential suburb of
Leicester in the 19th century and comprised mainly large houses set in
extensive grounds. Development from about 1880 to 1940 resulted in four
distinct areas: large houses set in their grounds, medium-sized houses in large
gardens, inter-war suburban villas and tightly built-up streets of mainly
terraced houses. Later post-war development included the conversion of large
houses to student accommodation for the two universities in Leicester, the
construction of purpose-built halls of residence, the provision of nursing
homes, (purpose-built or converted houses), the building of modern high density
residential estates and infill or backland development.
2. Elms Road
is in Stoneygate and runs in a north to south direction from Knighton Road to
Knighton Church Road. It is a wide road for most of its length, with a mix of
housing, nursing homes and student halls of residence.
3. The
application land is situated on the west side of Elms Road at the rear of no
27, a large detached house and garden, which is now empty but was part of Clare
Hall, a hall of residence of the University of Leicester. The application land
was formerly part of the garden of no 27. The application land is an irregular
shaped plot with an area of about 1,725 sq yds. It is bounded on the east by
the gardens of 27 to 31 Elms Road, on the south and west by the gardens of 22
to 28 Sackville Close (including the objectors’ houses at nos 24, 26 and 28)
and to the north by a part made-up access road to Elms Road and the site of a
new house under construction on land at the rear of 25 Elms Road (now Harley
Grange Nursing Home). Access to the application land is along the access road
referred to above, which joins Elms Road between nos 25 and 27. The western
boundary of the application land and the rear gardens of the objectors’ houses
is part-post and wire fence and part brick wall. There are trees, bushes and
shrubs along this boundary. The site is mainly rough grass with several mounds
of earth. There are two derelict builders’ huts on the land. It has an
unsightly appearance. It was formerly a garden and orchard, but the fruit trees
have now been grubbed-up.
4. By a
conveyance of the application land dated July 24 1953 between Isalene Whitehead
(vendor) (I) and Charles Viccars Goddard (purchaser) (2), the purchaser
covenanted to observe and perform the restrictions and stipulations in the
second schedule to the conveyance. The benefit of this covenant was enforceable
by the vendor and her personal representatives and successors in title,
assignees of the benefit and the owners and occupiers of any part of the
vendor’s adjacent or adjoining property, which was then a T-shaped parcel of
land now comprising 25 Elms Road, the land at the rear of no 25, the access
road to Elms Road and 16-28 Sackville Gardens. The purchaser of the application
land was the owner of 27 Elms Road, which immediately adjoins the land to the
east, and which then included the property which is now 29 Elms Road.
5. Para 1 of
the second schedule to the above conveyance prohibits any building or erection
on the application land except the existing shed and triangular building and a
green-house. This is the restriction which the applicants seek to modify (‘the
restriction’).
6. In about
1957, 25 Elms Road (including the rear land) was sold to the University of
Leicester.
7. In or about
1957 the land at the rear of the application land and at the rear of 25 Elms
Road, known as the Ratcliffe House Estate and later developed by the building
of 16 to 28 Sackville Gardens, was sold for development.
8. In or about
1957 the University of Leicester purchased 27 Elms Road (including the
application land).
9. In or about
1990 the University of Leicester sold 25 and 27 Elms Road (including the
application land and the land at the rear of no 25).
10. In or
about 1992 the applicants acquired the land at the rear of 25 Elms Road.
11. By a
transfer dated April 27 1994 the applicants acquired the application land.
12. On
February 7 1995 the applicants applied to this tribunal for an order
discharging the restriction to allow the erection of a good quality detached
two-storey dwelling-house containing four or five bedrooms. The application was
amended at the hearing to the modification of the restriction to permit the
erection of a detached bungalow and garage (‘the proposed bungalow’), subject
to conditions regulating height, siting, overlooking and landscaping. The
proposed bungalow comprises: lobby and hall, living room, dining room, study,
kitchen/breakfast room, family room, laundry room, four bedrooms, two bathrooms
and cloakroom. The application was made under section 84(1)(a), (aa)
and (c) of the Law of Property Act 1925 (as amended) (‘the 1925 Act’),
and amended at the hearing to include section 84(1)(b).
13. Objections
have been made by the following residents of Sackville Gardens: Mr and Mrs G
Wyatt (20), Mr and Mrs A Crofton (24), Dr GJ Jewell (27) and Mr P Day (28). All
objections are admitted.
14. The
following planning permissions and refusals are relevant:
|
December |
outline |
|
March |
conditional |
|
June |
conditional |
|
October |
planning |
|
November |
conditional |
|
February |
conditional |
|
February |
conditional |
|
March |
conditional |
|
|
double |
|
July |
conditional |
15. Planning
permission has not been granted (or applied for) for the proposed bungalow on
the application land.
16. In a
letter to the applicants’ solicitors dated January 27 1995 from the Director of
Environment and Development of Leicester City Council he indicated that he
‘would have no objection in principle, to the building of a 2-storey house’ on
the application land:
This is
subject to normal development control criteria (relating to design, garden
size, overlooking etc) being met. It may also depend on how the other half of
the site is developed; … approval may not be given for more than two dwellings
on the whole site. This may necessitate an agreement not to proceed with the
extant planning permission (91/1779) for two houses on the northern part of the
site if the southern part is developed.
The foregoing
advice is in any event without prejudice to my final recommendation or any
decision of the Planning Committee in respect of any formal applications for
development of the site.
17. The
application land is within a primarily residential area as defined in the
Knighton-Stoneygate local plan. Policy H6 in the written statement to the City
of Leicester Local Plan is relevant and is as follows:
Within the
Primarily Residential Areas defined on the Proposals Map, planning permission
will normally be granted for development for residential purposes (Class C3
uses) except where:
(a) A plot is too small to accommodate a
dwelling satisfactorily;
(b) It would be likely to prove detrimental to
the amenities of occupiers of nearby properties by reason of substantial loss
of privacy or light;
(c) The proposed access to the site or car
parking arrangements are unsatisfactory;
(d) The proposed design of the development is
unsatisfactory;
(e) It would result in the loss of garages,
parking space, social, community or recreational facilities for which there is
a need in the area;
(f) It would result in the loss of trees or land
of high amenity or ecological value;
(g) Development would be likely to prejudice the
possible comprehensive development of a larger area;
(h) Infill development or extensions would
prevent proper maintenance of a building or the adjoining properties;
(i) It would be unacceptably close to an
existing or proposed employment area falling within Classes B2-B8 of the Town
and Country Planning (Use Classes) Order 1987, or any other use which would be
detrimental to residential amenities.
There are a
number of small plots of land within the existing housing areas which could be
suitable for residential development, and which, in total, could make a significant
contribution to housing needs in the area. The above conditions are designed to
ensure, however, that development does not take place in unsuitable locations.
18. The
application land is within the Stoneygate Conservation Area.
19. The agreed
values of the objectors’ houses in Sackville Gardens are:
|
20 (Wyatt) |
£150,000 |
|
24 (Crofton) |
£120,000 |
|
26 (Jewell) |
£155,000 |
|
28 (Day) |
£127,500 |
Decision
I inspected
the application land and the surrounding area on a dry day at the beginning of
October. The trees were in almost full leaf I also viewed the application land
from the objectors’ houses and gardens.
This
application is made under section 84(1)(a), (aa), (b) and
(c) of the 1925 Act. The originating application omitted para (b)
but leave was requested to add it and I give leave for this amendment. I now
consider each of the four grounds.
Section
84(1)(a)
The question
here is whether by reason of material changes in the character of the property
or the neighbourhood the restriction ought to be deemed obsolete? In this
application this question can be divided into three parts:
(i) Have there
been material changes in the character of the application land since the
restriction was imposed in July 1953?
(ii) Have
there been material changes in the neighbourhood since that date?
(iii) If there
have been such changes, ought the restriction to be deemed obsolete?
I look first
at changes in the character of the application land. Mr Spencer, for the
applicants, put in evidence two Ordnance Survey maps showing the land and the
surrounding area in 1953 and at the present time respectively. When the
restriction was imposed in 1953 the land formed part of a larger parcel of land
enjoyed with a detached house, 25 Elms Road. The application land was garden or
orchard. It was sold to the owner of 27 Elms Road and became part of that
property. Today the application land is separate from no 27 and access to it is
along the new connecting road to Elms Road. The orchard has been grubbed up and
the application land has the unsightly appearance of a building plot waiting
for development to begin. I am satisfied that there have been material changes
in the character of the application land since July 1953.
The second
question relates to material changes in the neighbourhood. What is the
neighbourhood? Miss Ornsby, for the applicants, submitted that it is either the
area immediately surrounding the application land or a larger area bounded by a
circle with a radius of 650 ft from the land and by Carisbrooke and Ratcliffe
Roads. She said that, whatever area is taken, however, material changes have
occurred within it. Mr George, for the objectors, took a narrow view of the
neighbourhood and said that it related solely to the area in close proximity to
the application land and the objectors’ houses. The extent of the neighbourhood
is a question of fact. I find on the evidence and particularly my inspection,
that the neighbourhood is the wider area bounded by Ratcliffe Road, Carisbrooke
Road, Knighton Church Road and the properties on the eastern side of Elms Road.
Mr Spencer
listed the changes which have occurred in this neighbourhood since 1953. They
are:
(i) the conversion of large houses to student
accommodation;
(ii) the construction of purpose-built halls of
residence;
(iii) the construction of residential estates on
former open land, including Sackville Gardens, Carisbrooke Gardens, and along
Carisbrooke Avenue and at Parklands, Ratcliffe Road;
(iv) infill and backland development on large
plots, eg at nos 25, 28, 29, 30 and 33 Elms Road.
Mr Simpson,
for the objectors, did not analyse the changes in the neighbourhood, but said
that he has lived in the area for the past 16 years and is of the opinion that
it has retained its residential character, albeit with greater density of
housing.
Miss Ornsby
invited me to accept the evidence of Mr Spencer and find that the character of
the neighbourhood had materially changed since 1953. Mr George conceded that
there is now greater density of residential use in the neighbourhood, but
submitted that there has not been any change of use from residential and no
change in the character of that residential use.
I find that
the character of the neighbourhood has materially changed since July 1953. I
agree with Miss Ornsby that this conclusion holds good whether the
neighbourhood is defined narrowly or widely. If one looks at the area
immediately surrounding the application land then the following material
changes have occurred:
(i) 25 Elms
Road, the house for the benefit of which the restriction was imposed, became a
hall of residence and was then demolished and replaced by Harley Grange Nursing
Home;
(ii) the land
at the rear of no 25 has been severed and a new house is nearing completion on
the land, connected to Elms Road by a new access road which also serves the
application land;
(iii) 27 Elms
Road ceased to be a house and became part of Clare Hall, a hall of residence of
the University of Leicester, and is now vacant;
(iv) 29 Elms
Road was built in the grounds of no 27;
(v) Sackville
Gardens, including the objectors’ houses, has been built on the former open
land (the Ratcliffe House Estate), which was originally part of 25 Elms Road,
at the rear of the application land.
Looking at the
neighbourhood in a wider perspective, I accept Mr Spencer’s evidence that four
broad changes have occurred. Stoneygate is still an attractive residential area
and has retained a predominantly residential use, but its character has
changed, particularly close to the application land, by the growth of halls of
residence and by greater density of development. I should perhaps make the
point that the construction of Sackville Gardens, including the objectors’
houses, has had a particular impact on the character of the area immediately
surrounding the application land.
I find that
there have been material changes in the character of the application land and
the neighbourhood since the restriction was imposed in July 1953. This leads to
the third and crucial question: ought therefore the restriction to be deemed
obsolete?
The meaning of
‘obsolete’ was considered by Romer LJ in Re Truman, Hanbury, Buxton & Co
Ltd’s Application [1956] 1 QB 261. He said at pp271-272 that ‘ the meaning
of the term ‘obsolete’ may very well vary according to the subject-matter to
which it is applied’. When applied to restrictive covenants ‘it may 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 section 84(1) (a)’. Later he said (at p272): ‘If
serious injury would result to the opponents and others if the covenant was
discharged … I cannot see how … the covenant can be described as obsolete,
because the object of the covenant is still capable of fulfilment, and the
covenant still affords a real protection to those who are entitled to enforce
it’.
The test is
therefore whether the restriction can still serve its original purpose? This
begs the further question: what was the original purpose? I heard evidence on
this point from Mr JMS Whitehead.
Mr Whitehead
said that his father purchased 25 Elms Road in 1927, then 27 Elms Road in 1936
and the Ratcliffe House Estate in 1939. He later sold no 27 but kept half the
garden for a tennis court, orchard, stables and stables yard. Mr Whitehead’s
father died in 1946. Mr Whitehead acted on behalf of his mother when she sold
part of the garden of no 27 (the application land) to the owner of that house
in July 1953 and imposed the restriction (which is the subject of this
application) on the land. The purpose was to protect the Ratcliffe House
Estate, which was then owned by trustees. The application land was sold at a
reduced price to reflect the restriction. The purpose of the restriction was to
preserve the ambience of the locality so that the building plots in Sackville
Gardens would be large and with desirable views.
Mr Whitehead
said that his father commenced work on the development of the Ratcliffe House
Estate in 1939 by instructing an architect, demolishing Ratcliffe House and
building a road on the land (now Sackville Gardens). When the land was sold for
development in or about 1957, the intention of the restriction was achieved
because the price obtained was a substantial sum.
Mr Whitehead
concluded that the reasons for the imposition of the restriction on the
application land were:
(i) to protect 25 Elms Road;
(ii) to maintain the price on the sale of the
rear land, the Ratcliffe House Estate, for development;
(iii) to
protect the purchasers of the houses built on the Ratcliffe House Estate
(Sackville Gardens) from overdevelopment.
I am not
wholly persuaded by Mr Whitehead’s evidence as to the three-fold purpose of the
restriction. I can accept reason (i). I think this was the main, perhaps the
only, reason for the restriction, and allied to a lower price as garden land.
Reason (ii) may be correct. With regard to reason (iii), I am doubtful whether
the restriction was imposed to protect the future purchasers of houses to be
built on the Ratcliffe House Estate. In my view, the restriction was imposed to
reflect the low price on the sale of the application land as garden land, to
protect the amenity of no 25 (then owned by Mrs Whitehead, the vendor) and,
possibly, to increase the price on the subsequent sale of the Ratcliffe House
Estate. I do not think that Mrs Whitehead, or her solicitors, had the later
owners of houses in Sackville Gardens in mind as beneficiaries of the
restriction (in the way they now oppose the modification), although I accept
that they have the benefit in law as subsequent purchasers of part of the
Ratcliffe House Estate.
Can these
purposes still be served by the restriction? Miss Ornsby submitted that the
restriction is now obsolete with regard to the protection of the enjoyment and
amenity of 25 Elms Road. I agree. The house which was no 25 when the
restriction was imposed has been demolished and replaced with Harley Grange
Nursing Home. The land at the rear is the site of a new house. The original
purpose of the restriction cannot be served in this respect. With regard to the
second purpose, the maintenance of the price on the sale of the Ratcliffe House
Estate, I agree with Miss Ornsby that this purpose has also been fulfilled and
the restriction is obsolete in this respect.
If I am right
therefore, that the original purpose of the restriction was two-fold only, then
it follows that the restriction is obsolete. I will, however, consider the
third reason, because it will be seen that, even if I accept it as one of the
original purposes of the restriction, it cannot now be fulfilled and the
restriction is still obsolete.
Miss Ornsby
submitted that, assuming that one of the purposes of the restriction was to
protect the owners of houses in Sackville Gardens from overdevelopment, then
the restriction is obsolete for two reasons. First, the houses in Sackville
Gardens were in fact erected at a higher density than envisaged in 1953 and the
building of one bungalow on the application land would not constitute
overdevelopment in that it would be at a lower density than Sackville Gardens.
Second, that the proposed modification of the restriction would not constitute
overdevelopment and, in so far as it now prohibits development which does not
constitute overdevelopment, it is no longer fulfilling any purpose. Miss Ornsby
referred to Re Ling’s Application (1955) 7 P&CR 233 which she said
established the principle that a restriction should be modified if the
restrictions necessary to preserve the character of the neighbourhood when
imposed were far more stringent than required at the time when modification is
sought. She said that, in order to maintain the character of the area, it is no
longer necessary to have a blanket rejection of all development on the
application land. The proposed bungalow would not adversely affect the amenity
of adjoining land. The restriction is unnecessarily severe in relation to
permitted surrounding development. Thus, it is now obsolete and should be
modified. She also referred to Re Bradley Clare Estate’s Application
(1988) 55 P&CR 126.
Mr George
submitted that the original purpose of the restriction is not exhausted because
it can still properly be served by preventing development at the rear of the
objectors’ houses. He referred to Re Henderson’s Conveyance [1940] Ch
835 and particularly part of the judgment of Farwell J at p845, where he said:
This is
purely a question between two private owners, one of whom desires to erect a
house on a particular portion of his property, and the other of whom desires to
keep that which he has long enjoyed and that for which presumably he paid when
he acquired his house and grounds, namely, the benefit of having at the bottom
of his garden an open space, a space which, so long as the covenant remains,
will be always an open space, and one which, being an open space, will not have
upon it a dwelling or dwellings from which his garden can be overlooked.
I accept Miss
Ornsby’s submissions on this point. Even if the protection of future owners of
unbuilt houses in Sackville Gardens was an original purpose of the restriction,
then I am still satisfied that it is obsolete. That protective purpose cannot
be served because the proposed bungalow will not injure those with the benefit,
by over development or, as I shall explain later in this decision, by obstructing
a view. In Truman Romer LJ found that the covenant in that case was
still capable of fulfilment because it still afforded ‘a real protection to
those who are entitled to enforce it’ (p272). It follows therefore that, if
the restriction does not afford protection, by not stopping overdevelopment
because the proposed bungalow would not constitute such development, or by not
stopping the obstruction of a view, because the bungalow would not obstruct the
view, then it is not serving its original purpose and is obsolete.
I distinguish
the decision in Re Henderson on three grounds. First, in Henderson
there was no evidence on any changes in the property or neighbourhood. Second,
the applicant required the discharge or modification of the covenant to enable
him to site his proposed house on a particular part of his land (burdened with
the covenant), although his other land was free from any restriction. As
Farwell J said, the question was whether this personal benefit is sufficient
‘to justify him in asking that the benefit under the covenant which the
appellant has long enjoyed shall be taken away from him’ (p846). Third, the
proposed house in Henderson would have caused overlooking of the house
and garden with the benefit of the covenant; that is not the position with the
proposed bungalow in this application.
I am satisfied
that, by reason of material changes in the property and neighbourhood, the
restriction can no longer fulfil its original purpose and is obsolete. The
application succeeds under section 84(1)(a).
Section
84(1)(aa)
The issues
under this ground can be expressed in the form of three questions. There is no
issue between the parties as to whether the restriction is contrary to the
public interest.
The first
question is whether the proposed user of the application land for the erection
of a bungalow and garage is a reasonable user of the land which is impeded by
the restriction? The parties are agreed that the proposed bungalow is a
reasonable user of the land and clearly it is impeded by the restriction. I
should, however, add that I do not accept Miss Ornsby’s submission that it is a
corollary of a finding of reasonable user that planning permission must
necessarily be assumed to be granted for that use.
I proceed to
the second question. This is whether the restriction, in impeding the proposed
user of the application land, secures practical benefits to the objectors which
are of substantial value or advantage to them?
Miss Ornsby
submitted that the evidence clearly shows that the view from the rear of the
objectors’ houses will not be adversely affected by the proposed bungalow. The
height will be only 18 ft, there are mature trees along the rear boundary of
the objectors’ gardens and the application land and landscaping is proposed on
that land to further screen the proposed building. Miss Ornsby referred to Re
Dransfield’s Application (1975) 31 P&CR 192 (view from the objectors’
house not a substantial practical benefit: ‘… in the summer months the new
house would scarcely be visible at all …’ (p192)) and Re Gaffney’s
Application (1974) 35 P&CR 440 (a case with similar facts). In both
cases the application succeeded. She said that Mr Simpson conceded that the
modification of the restriction would have only a marginal effect on the value
of the objectors’ houses, up to a maximum of 10 %. Clearly therefore the
benefit derived from the absence of the bungalow cannot be substantial.
Mr George said
that it is established law that a view can be a practical benefit: Gilbert
v Spoor [1983] Ch 27. It is a question of fact and degree for the
tribunal as to whether a view exists and the extent to which the proposed
bungalow will interfere with it. Mr George submitted that a further benefit is
that the restriction was in part taken to keep the application land free from
development. This, in itself, is a substantial practical benefit to the
objectors. The objectors gave evidence, to the effect that they regarded the
view from the rear of their properties and the existence of an orchard at the
rear of their gardens as benefits attaching to their houses. They understood
when they bought their houses that the application land could not be developed
due to the restriction. The benefits claimed to be secured to the objectors by
the restriction are: (1) the view from the rear rooms and gardens over the
application land; (2) the maintenance of open land at the rear of their
gardens. It was not claimed that the restriction prevented overlooking from the
proposed bungalow or that this property would produce noise and disturbance. I
now deal with each of the alleged benefits.
I accept that
a view can be a practical benefit. I viewed the application land from each of
the objectors’ houses and gardens and my decision on this issue must rest
largely on this inspection. It is a matter of impression.
I am satisfied
that Mr Wyatt at 20 Sackville Gardens obtains no benefits from the restriction
due to the position of his house immediately to the rear of 25 Elms Road, a
short distance to the north of the application land. The view from Mr Wyatt’s
house and garden has been greatly affected by the house now nearing completion
on the land at the rear of 25 Elms Road but this is unconnected with this
application. I am satisfied that the proposed bungalow will not be seen, or at
most not seen to any extent, from Mr Wyatt’s property.
The houses of
the other objectors share a common boundary with the application land (the rear
boundary of the gardens and the western boundary of the land). From my
inspection I am satisfied that the proposed bungalow will hardly be seen, if at
all in the summer, from the houses or the gardens, except at the very rear of
the gardens of 27 and 28 Sackville Gardens. In my opinion, the objectors have
greatly exaggerated the effect of the bungalow on the rear view from their
houses and gardens. Although I note that the original application envisaged the
erection of a two-storey house on the application land and this would clearly
be far more intrusive.
The
restriction can only secure a substantial practical benefit to the objectors if
it prevents a substantial deterioration in the view they enjoy over the
application land. I do not think that this test is satisfied. l am not
persuaded that the proposed bungalow will materially affect the rear view from
the objectors’ properties. Accordingly, I find the restriction does not secure
a substantial practical benefit in terms of view.
The second
benefit claimed by the objectors is that the keeping of the application land
free from development by the restriction is a substantial practical benefit in
itself. Miss Ornsby counted this argument on two grounds. First, that the
purpose of the restriction was not to prevent development in itself but, on the
evidence of Mr Whitehead, it was to prevent overdevelopment and this
would not arise by the erection of one bungalow. Second, if it is right that
the restriction itself can constitute a substantial practical benefit, then it
follows that no application can ever succeed under section 84(1)(aa). Mr
George’s submissions on this point represent a circular argument.
I agree with
Miss Ornsby, at least on her second ground of rebuttal. I cannot see how the
mere existence of the restriction can itself be a substantial benefit,
otherwise, as Miss Ornbsby says, every application under section 84(1)(aa)
is bound to fail. The benefit to be considered under this ground must be the
effect of the restriction on the objector and his land. Does the consequence of
the restriction to the objector provide a benefit to him? Applying that test to
this application, I am satisfied that the consequence of the restriction, that
is to say the prevention of the erection of the proposed bungalow, is not a
substantial practical benefit to the objectors. The view is not safeguarded
because it would not be impaired by the bungalow. Overlooking would not be
prevented because this cannot arise out of the construction of the bungalow and
it is not suggested that the occupation and use of the bungalow would produce
unreasonable noise or disturbance, which would be prevented by the restriction.
I am satisfied
that the restriction, in impeding the user of the application land for the
erection of the proposed bungalow, does not secure practical benefits which are
of substantial value or advantage to the objectors.
I can now
proceed to my third question, which is whether money will be an adequate
compensation for the loss or disadvantage (if any) which the objectors will
suffer from the modification of the restriction and, if so, what amounts should
be awarded? The objectors, through the evidence of Mr Simpson, have claimed
compensation of between 5 and 10% of the agreed values of their houses.
Miss Ornsby
accepted that loss of a view can be compensated by a monetary award, but
submitted that, in this case, the damage is too small to be quantified. The
effect of the bungalow would be negligible
figures are flawed. The true comparison of values is between the value of the
house with the existing view and with the view it will have after the
construction of the bungalow. Mr Spencer expressed the opinion that the
bungalow would not cause any diminution in value of the objectors’ houses.
I agree that
money will be adequate compensation for loss of a view and that therefore the
requirement of section 84(1A) as to compensation is satisfied in this respect.
Compensation is, however, not necessarily payable in every case and I am of the
opinion that it is not appropriate in this application. I have found that the
restriction is obsolete and I will find later that the objectors will not be
injured by its modification. It must follow therefore that the restriction does
not add to the value of their houses because it is obsolete and its
modification would not reduce the value because this will not cause injury. I
am satisfied that Mr Simpson’s figures are wrong and that no diminution in
value will arise solely as the result of the modification of the restriction.
If the application had succeeded only under section 84(1)(aa) then
modest amounts of compensation might be appropriate for any insubstantial loss
or damage due to the modification of the restriction. The applicants’ success
under section 84(1)(a) and (c), however, necessarily rules out
any compensation payments as being inconsistent with success on those grounds.
The
application succeeds under section 84(1)(aa).
Section
84(1)(b)
I give leave
for this ground to be added to the original application but it must fail on the
facts. Seven houses in Sackville Gardens have the benefit of the restriction.
Objections have been made by four owners; objections were not made by the
owners of nos 16, 18 and 22. Miss Ornsby invited me to find that these owners
have agreed, by implication, to the modification of the restriction. Even if I
accept this argument the application must fail on this ground because, it seems
to me, that all those with the benefit of the restriction must consent to its
modification. This is clearly not the position here and the application fails
under section 84(1)(b).
Section
84(1)(c)
To succeed on
this ground the applicants must show that the proposed modification of the
restriction will not injure the objectors.
Miss Ornsby
submitted that the objectors will not be injured by the proposed modification
due to the existing screening of the application land from the objectors’
houses and the existing view of 27 Elms Road, which is larger and more
intrusive than the proposed bungalow will be. She referred to Re Chapman’s
Application (1981) 42 P&CR 114 and Re Bowden’s Application
(1983) 47 P&CR 455. The bungalow will not materially affect the character
of the surrounding area. It cannot set a precedent for further development.
Mr George said
that injury is not simply a question of compensation. It must be determined by
reference to the purpose for which the restriction was imposed, which, in
accordance with the evidence of Mr Whitehead, was to prevent overdevelopment to
the detriment of the houses in Sackville Gardens. He said that the reference to
27 Elms Road is a false point because this property was in existence when the
restriction was imposed.
As I said
earlier in this decision, I am satisfied that the proposed bungalow will hardly
be seen, if at all in the summer, from the objectors’ houses and gardens and it
follows therefore that they will not be injured by the modification of the
restriction to permit the erection of the bungalow. Furthermore, I have found
that the mere prevention of development on the application land is not, in
itself, a benefit and it follows that the modification to allow that
development will not injure the objectors The application succeeds under section
84(1)(c).
Discretion
I have found
that the requirements of section 84(1)(a), (aa) and (c) of
the 1925 Act are satisfied and I therefore have jurisdiction to modify the
restriction. I must now consider whether, in the exercise of that jurisdiction
and of my discretion, I should do so. I am particularly required by section
84(1B), when exercising my discretion, to take into account the planning
position, the period at which and the context in which the restriction was
imposed and any other material circumstances.
This is an
unusual case because planning permission has not been granted for the proposed
bungalow. The explanation I was given for this absence of planning permission
was that Dr Nichol did not wish to upset the objectors further by applying for
such permission before he had obtained a modification of the restriction.
Although I think that this application should have been accompanied by planning
permission for the proposed bungalow, I do not think that lack of permission is
necessarily fatal due to the late amendment of the application to provide for
the modification of the restriction to permit the construction of a particular
building governed by conditions. Further, I am satisfied on the evidence, that
planning permission is likely to be granted for the construction of a bungalow
within the scope of the modification now sought.
I have already
considered the period and context of the imposition of the restriction and
concluded that the purpose of the restriction has been fulfilled and is now obsolete.
I must however
deal with certain allegations made by the objectors against Dr Nichol which
arose from time to time during the hearing. It is not for me to make a judgment
on their accuracy, except in so far as it might influence my discretion. I can
understand the concern felt by the objectors about the changes taking place at
the rear of their houses, but I would make the following comments.
First,
parliament has given an owner of land burdened with a restrictive covenant the
right to apply to the Lands Tribunal to have that covenant discharged or
modified. It is for the tribunal to decide whether the applicant has satisfied
one or more of the requirements of section 84(1) of the 1925 Act. I do not
think that any criticism can be attached to the applicants for making this
application. Second, much of the development at the rear of the objectors’
houses is not connected to this application and has arisen after various grants
of planning permission for backland development by the local authority. Third,
the removal of the trees from the application land by Yellowhammer Ltd was not,
as far as I am aware (and it was certainly not proved), on the instructions of
Dr Nichol. This is not a case where I should exercise my discretion against an
applicant because he has proceeded with development in flagrant breach of a
restrictive covenant. It appears that Dr Nichol stopped all activity on the
land when he became aware of the restriction and the strength of the
objections.
Having
considered all these matters I am satisfied that I should exercise my
discretion to order the modification of the restriction. If I refuse the
application the land will remain an unsightly vacant plot of land. It is
unlikely that it will ever revert to the garden and orchard, occupied with the
adjoining house, which the objectors remember from past years.
Order
During the
hearing the application was amended to provide for the modification of the
restriction to permit the erection of a bungalow and garage, subject to
conditions which were agreed by Mr George. One of these related to landscaping
and in the following terms: ‘the western boundary of the said land to be
landscaped with a mixture of deciduous and evergreen trees’. This imposes a
positive obligation on the owner. In my view, I do not have the power to impose
such an obligation on the land. Section 84(1C) of the 1925 Act provides that:
It is hereby
declared that the power conferred by this section to modify a restriction
includes power to add such further provisions restricting the user of or the
building on the land affected as appear to the Lands Tribunal to be reasonable
in view of the relaxation of the existing provisions, and as may be accepted by
the applicant; and the Lands Tribunal may accordingly refuse to modify a restriction
without some such addition.
This
subsection gives the tribunal power to add provisions ‘restricting the
user of or the building on the land’, but this does not
the proposed landscaping condition (condition (v)) to provide for the
preservation of the existing trees and bushes along the western and south
western boundaries of the application land, and this decision can, at this
stage, be only an interim decision.
I propose that
para 1 of the second schedule to the conveyance of the application land dated
July 24 1953 shall be modified to read as follows:
1. That no
building or erection shall at any time hereafter be built or erected on the
property hereby conveyed or any part thereof save and except one detached
bungalow and detached garage subject to the following conditions
(i) no part
of the bungalow shall exceed a height of 18 feet (5.5 metres) at its highest
point
(ii) the
gross floor area of the bungalow shall not exceed 2,900 square feet (176 square
metres)
(iii) no
point on the western elevation of the bungalow shall be less than 45 feet (13.7
metres) from the western boundary of the property
(iv) any
windows in the western elevation of the bungalow shall not be above ground
floor level
(v) no
existing trees, shrubs, bushes or hedges along the western and south western
boundaries of the property shall be topped lopped uprooted felled wilfully
damaged or removed
(vi) no point
on the western elevation of the garage shall be less than 20 feet (6.10 metres)
from the western boundary of the property
(vii) no part
of the garage shall exceed a height of 15 feet (4.6 metres) at its highest
point
This can only
be an interim decision in the absence of acceptance by the applicants of varied
condition (v) above. The applicants are invited to inform the registrar within
four weeks of this interim decision that they accept this condition. The
original positive obligation regarding landscaping was, however, agreed by the
objectors, and, in view of the proposed change of wording, I should give them
the opportunity to make representations on revised condition (v) before I issue
my final decision.
Accordingly,
this decision is an interim decision, dependent only on the form of condition
(v) of the proposed modification to the restriction. The parties are invited to
agree or make submissions on this matter as referred to above and also now to
make representations as to costs based on this interim decision. A letter
accompanies this decision as to the procedure for the making of submissions in
writing. I will, in due course, issue a final decision incorporating orders as
to the form of the modification of the restriction and as to costs. Rights of
appeal under section 3(4) of the Lands Tribunal Act 1949 and Rules of the
Supreme Court, Ord 61 will not accrue until the date of the final and completed
decision.
Addendum
The applicants
accept condition (v) referred to above but suggest the addition of a proviso to
allow topping, lopping, etc, where this is required to deal with disease or
dangerous condition. The objectors have not made submissions on this matter. I
accept the applicants’ proposed amendment to condition (v). Accordingly, I order
that para 1 of the second schedule to the conveyance of the application land
dated July 24 1953 shall be modified to read as follows:
That no
building or erection shall at any time hereafter be built or erected on the
property hereby conveyed or any part thereof save and except one detached
bungalow and detached garage subject to the following conditions:
(i) no part
of the bungalow shall exceed a height of 18 feet (5.5 metres) at its highest
point
(ii) the
gross floor area of the bungalow shall not exceed 2,900 square feet (269.41
square metres)
(iii) no
point on the western elevation of the bungalow shall be less than 45 feet (13.7
metres) from the western boundary of the property
(iv) any
windows in the western elevation of the bungalow shall not be above ground
floor level
(v) no
existing trees shrubs bushes or hedges along the western and south western
boundaries of the property shall be topped lopped uprooted felled wilfully
damaged or removed unless such topping lopping uprooting felling or removal is
required on the written advice of an aboriculturist where the tree shrub bush
or hedge has become diseased or dangerous
(vi) no point
on the western elevation of the garage shall be less than 20 feet (6.10 metres)
from the western boundary of the property
(vii) no part
of the garage shall exceed a height of 15 feet (4.6 metres) at its highest
point
The metric
conversion figure of 176 m2 in condition (ii) as set out earlier in
this decision, given by the applicants and agreed by the objectors, is incorrect
and should be 269.41 m2. The correct figure is included in revised
condition (ii) set out above.
I have
received written submissions on costs. The applicants ask for their costs on an
indemnity basis or, at least, on the High Court scale. The objectors seek their
costs on the High Court scale.
I have
considered these submissions. The current practice of the Lands Tribunal as to
costs in section 84 applications is set out in Preston and Newsom, Restrictive
Covenants (8th ed) para 16-11. The relevant parts of this para are as
follows:
The practice
in respect of cases which go to a substantive hearing appears to have settled
down along the following lines: …
2. An
applicant who wins and does not have to pay any compensation may well recover
some or all of his costs from the objectors or there may be no order as to
costs. The more closely the case is analogous to hostile litigation, the
greater is the chance that costs will follow the event.
3… . If a
sealed offer exceeds the sum awarded this may influence the decision on costs …
A similar
statement appears in Scamell Land Covenants at p485. The former practice
of this tribunal, not normally to award costs against an objector unless the
objection was frivolous or vexatious (Practice Note of May 27 1954), referred
to by the parties, was superseded in the late 1970s by the practice of treating
each case on its merits and the 1954 note was revoked by Practice Direction of
March 24 1982. The current Practice Direction on costs (8/1997), which took
effect on January 1 1997, does not refer specifically to costs in section 84
applications but confirms the general principle that ‘in general orders for
costs are made by the tribunal in the exercise of its discretion in accordance
with the principles applied in the High Court and County Court’.
In my view,
this is a case where the applicants should recover part of their costs. I do
not think that they should recover all their costs nor should they recover them
on an indemnity basis. The main reasons why they should not recover all their
costs are: late amendment of the application at the hearing, from one to
discharge the restriction to allow the erection of a two-storey house (which I
would have refused) to one seeking a conditional modification to permit the
erection of a bungalow and to the lack of planning permission for the proposed
bungalow. By a letter dated September 24 1996 marked ‘without prejudice save as
to costs’ the applicants offered ‘to settle the matter’ with a total payment to
the objectors of £5,000, each party paying their own costs. This offer was not
accepted. I have taken it into account, but it does not persuade me to give the
applicants the whole of their costs.
I have also
taken into account the submissions of the parties regarding the agreement of facts.
I refer to this at the beginning of my decision. From the submissions and
evidence I cannot find that the failure to agree facts was solely the fault of
one party. My conclusion is that the objectors and their advisers were mainly
to blame for the non-agreement of facts. I cannot accept the statement by the
objectors’ solicitors in their submissions on costs that ‘the expert witness of
the Objectors was not under any obligation to agree facts with the Applicants
expert witness’. Both witnesses were under an obligation to agree material
facts. These were largely uncontentious but they were numerous (19 paragraphs
and five pages in this decision). I draw attention to Practice Direction 5/1997
(Expert Evidence) para 4:
Disclosure
and exchange of experts reports will usually be only a first step. Thereafter,
the Tribunal will normally require experts of like discipline to meet and reach
agreement as to facts, to agree any relevant plans, photographs etc,
and to define those facts upon which they are unable to agree and the issues
remaining unresolved between them. It has been known occasionally for retained
experts to be instructed not to agree; such instructions are to be deprecated.
The Tribunal will regard failure to cooperate in reaching agreement as to the
facts and issues as incompatible with the expert’s duty to the Tribunal.
A similar
obligation was contained in the previous Practice Direction on Expert Evidence
(November 8 1988).
In the
exercise of my discretion as to costs, and taking into account the matters set
out above, I have decided that the objectors should pay half the applicants’
costs. Accordingly, I order that the objectors shall be jointly and severally
liable to pay half the applicants’ costs, such costs, if not agreed, to be
taxed by the Registrar of the Lands Tribunal on the High Court standard basis.
