EWLands LP_13_2002 (3 February 2004)
LANDS TRIBUNAL ACT 1949
RESTRICTIVE COVENANTS – restrictions to single dwellinghouse and against developing part of site – application to discharge or modify the restrictions so as to permit development with additional house, part of which would encroach onto the prohibited area – whether practical benefits of substantial value or advantage secured by restrictions – whether any injury caused – application for modification but not discharge granted – compensation totalling £32,650 awarded – Law of Property Act 1925, s84(1)(aa) (1A) and (c).
IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE
LAW OF PROPERTY ACT 1925
Land adjacent to "Ambleside"
Hampshire S042 7SS
Before: N J Rose FRICS
Sitting in public at Bournemouth Crown and County Court,
Deansleigh Road, Bournemouth, BH7 7DS
on 28 and 29 October 2003
The following case is referred to in this decision:
McMorris v Brown  3 WLR 971
The following additional cases were cited in argument:
Re Bass Ltd's Application (1973) 26 P & CR 156
Re Carter's Application (1973) 25 P & CR 542
Re Forgac's Application (1976) 32 P & CR 464
Re Chapman's Application (1981) 42 P & CR 114
Re Snaith and Dolding's Application (1996) 71 P & CR 104
Re Kennet Properties Ltd's Application  2 EGLR 165
Re Davies' Application  1 EGLR 113
Stockport BC v Alwiyah Developments (1983) 52 P & CR 278
Re Diggens' Application  2 EGLR 163
Re Bromor Properties Ltd's Application (1995) 70 P & CR 569
Re Jillas' Application  23 EG 147
Ridley v Taylor  1 WLR 611
Gibert v Spoor  1 Ch 27 32
Re Page's Application (1995) 71 P & CR 440
Re Hunt's Application (1996) 73 P & CR 126
Re Chandler's Application (1958) 9 P & CR 512
William Webster, instructed by Brook Oliver, solicitors of New Milton, Hants for the applicants.
Neil Vickery, instructed by Scott Bailey, solicitors of Lymington, Hants for the objectors, Mr and Mrs David Barber.
Sara Hargreaves, instructed by Heppenstalls, solicitors of Lymington, Hants for the remaining objectors.
"For the benefit of the vendor and his successors in title owner or owners for the time being of the remainder of the said Brookside Estate which is coloured violet on the said plan and so as to bind the property hereby assured into whosesoever hands the same may come the purchaser hereby covenants with the vendor that the purchaser and the persons deriving title under her will at all times hereafter observe and perform all and singular the restrictions and stipulations contained in the Third Schedule hereto so far as the same affect the property hereby assured …"
"1. No building shall be erected on the said land except one private dwellinghouse with or without a motor house and other outbuildings … and the purchaser shall not erect any such building without first obtaining the written approval of the vendor or his surveyor …
4. … No part of the land that is not built upon shall be used otherwise than as a garden orchard or private pleasure ground …"
"the benefit of the purchaser and her successors in title … so as to bind the remainder of the said Brookside Estate coloured violet on the said plan."
"1. That the vendor will not erect more than three dwellinghouses on the land coloured violet south of the Bowden Smith Road [now known as Brookside Road] such houses to be detached and only one to be on the east side of the property sold.
2. That the vendor will not erect any house or building on the north side of Bowden Smith Road immediately opposite to the dwellinghouse now being sold …
3. That subject to the provisions set out in the last sub-clauses Numbers 1 and 2 the restrictions and stipulations contained in the Third Schedule hereto shall apply to the whole of the Brookside Estate and to every plot of land forming part thereof."
"The vendor hereby covenants with the purchaser to the intent and so as to bind the land coloured yellow on the said plan into whosesoever hands the same may come and to benefit and protect the land hereby conveyed that she the vendor and her successors in title will observe and perform the restrictions and stipulations set out in the Second Schedule hereto."
"No buildings shall be erected on the said land coloured yellow on the plan annexed hereto except two private dwellinghouses with or without a garage and other out-buildings. Each dwellinghouse and garage shall be of conventional design and built of brick or brick faced with stucco or cement rendering and with tiled roofs and shall be not less than one thousand five hundred superficial square feet"
|Approx Frontage (ft)||Approx
|Ambleside (excluding application site)||100||185||1740|
The site areas were agreed. The frontages of Ambleside and the application site were given in evidence by Mr Bevans. I have scaled the depths and the other frontages from the submitted Ordnance Survey plan.
(a) The conserving and the enhancing of the open forest and countryside
(b) Preserving the unique character of the New Forest
(c) Protecting the setting and character of settlements
(d) Providing for housing and employment to meet local needs and to sustain the economy.
|Temporary Disturbance||Thin end of wedge||Permanent loss||Total|
"that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified impede such user;"
"(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either
(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or
(b) is contrary to the public interest;
and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification."
"(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances."
Forest House. The main living rooms do not overlook the proposed new house. There will be a limited view of it from one of the six bedrooms, which is used as a study, a bathroom, landing and separate wc. There will also be a wider vehicular access on the opposite side of the road.
Bayfield. The main living rooms do not overlook the application site. The new building will be visible to a limited extent from the ground floor kitchen, the small bedroom and landing on the first floor and a half landing.
Little Barn. Any interference with the view will be minimal.
Merry Acre. The proposed new house will not be visible.
Wingfield. The application site cannot be seen from the house although it will be partly visible from the front and rear gardens.
Lynton House. There will be a limited view of the new building from the patio/conservatory, above the level of the existing tall hedge, and from the rear garden.
The interference with the existing views from the objectors' properties caused by the proposed development will therefore be limited.
"1. Block and beam construction to ground floor. Floor to be 500mm above existing ground level.
2. Water from roof areas to be taken to deep soakaways 5m from building to building control approval.
3. Driveway to be pervious gravel.
4. Drainage of patio area to a soakaway
5. No additional land raising to be done on site.
6. Air bricks to be fitted with watertight covers."
"The methods proposed in your letter generally appear acceptable with regard to floodproofing and rainwater source control onsite."
"The onus is on the applicants to show that a first relaxation of that covenant would not constitute a real risk as a precedent"
In considering whether the success of the present application would create such a precedent, I consider it necessary to bear in mind that the application site is the only undeveloped piece of land with dimensions that are consistent with those of the existing plots on the estate. Its frontage is greater than of Little Barn or Bayfield and its depth is similar to that of Lynton House, Ambleside, Wingfield and Merry Acre. Very different considerations would arise if, as suggested by Mr Rutland, the proposed development involved the combination of a number of existing plots and their sub-division into a significantly greater number. The resulting character of the estate would then be fundamentally different. If planning permission were granted for such development and an application made to this Tribunal, a favourable decision on the current application would not, in my judgment, serve as a material precedent that would influence the Tribunal's conclusion.
"the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction".
|Merry Acre||£ 300|
|Little Barn||£ 300|
|Merry Acre||£ 2,800|
|Little Barn||£ 2,800|
|Forest House||£ 7,000|
Dated 8 December 2003
N J Rose FRICS
ADDENDUM ON COSTS
"In any application for costs in a contested section 84 case it is important to bear in mind the nature of the proceedings. In such proceedings the applicant is seeking to have removed or reduced rights which were conferred on the objector or his predecessors by force of contract. If an objector successfully resists such an application he will usually be awarded his costs. The converse, that a successful applicant should normally receive his costs, does not, however, apply. An unsuccessful objector may be ordered to pay part or all of the applicant's costs; or there may be no order as to costs; or he may receive part or all of his costs where, although the covenant is ordered to be discharged or modified, compensation is awarded to him. Which of these courses is followed by the Tribunal will depend principally on the nature and degree of the applicant's success and the conduct of the parties. In exercising its power to award costs the Tribunal will always bear in mind the nature of the proceedings, which must ordinarily put an objector in a more favourable position in relation to costs than the unsuccessful party in ordinary civil litigation."
Dated 3 February 2004
N J Rose FRICS