B e f o r e :
|RE MARTIN AND ANOTHER'S APPLICATION|
37. (1) A local planning authority may, with the approval of the Minister, enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement; and any such agreement may contain such incidental and consequential provisions (including provisions of a financial character) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.
(2) An agreement made under this section with any person interested in land may be enforced by the local planning authority against persons deriving title under that person in respect of that land, as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land.
(3) Nothing in this section or in any agreement made thereunder shall be construed --
(a) as restricting the exercise, in relation to land which is the subject of any such agreement, of any powers exercisable by any Minister or authority under this Act so long as those powers are exercised in accordance with the provisions of the development plan, or in accordance with any directions which may have been given by the Minister as to the provisions to be included in such a plan, or
(b) as requiring the exercise of any such powers otherwise than as mentioned in the preceding paragraph.
(4) The power of a local planning authority to make agreements under this section may be exercised also --
(a) in relation to land in a county district, by the council of that district;
(b) in relation to land in the area of a joint planning board, by the council of the county or county borough in which the land is situated,
and references in this section to a local planning authority shall be construed accordingly.
The section has now been replaced by section 52 of the 1971 Act with modifications which are not material.
The Owner has made application for Planning Permission . . . for the erection of two dwellings on the said land hatched pink and hatched pink and blue and concurring with the opinion of the Corporation that it would be inappropriate by reason of the excessive density of buildings which might thereby ensue for the Corporation to grant such Planning Permission whilst the Planning Permission . . . granted by the Corporation on the fourteenth day of October one thousand nine hundred and sixty five for the erection of two dwellings on the said land . . . remains exercisable the Owner has requested the Corporation to enter into this Agreement.
The operative part of the agreement provided as follows:
NOW THEREFORE it is hereby agreed by and between the parties hereto in pursuance of Section 37 of the Town and Country Planning Act 1962 that the said land hatched blue shall not be used for any purpose other than as a private open space and that accordingly no building, structure or erection (other than fencing a summer house or garden shed if the owner shall so require) shall be placed thereon.
The land hatched blue is the L-shaped land and accordingly includes plot 3.
12 It is my view that, while this development has aroused concern, to allow it to proceed would not put in jeopardy the visual environment of the area. Even though the proposed dwelling and its site will be smaller than its neighbours I am satisfied that careful and sensitive handling of its appearance and siting at detailed stage should ensure a satisfactory and compatible design. This I consider to be of importance because there is no doubt that the area has distinctive qualities that arise from the siting, scale and well-considered details of these houses and their gardens. The question of the possible cramped appearance of the site and the effect of the development on its neighbours I consider is of equal importance.
13 The houses opposite the site are smaller, narrower and are sited above the road with open-front gardens so that they are more open to view. Whereas the houses on the appeal-site side of the road are set below road level with shallow but mature gardens enclosed by dense hedges to their front. They are less open to view and are almost without exception broad-fronted houses that nearly fill the widths of their sites and they present an almost continuous but varied facade that follows the sweep of the road. To fill a gap in this development with a house that follows a similar pattern of height and building-line is, in my view, acceptable even though it may be marginally smaller. The retention and protection of the trees that front the site play an important part in this consideration and I am imposing a condition to that effect. If care is taken I see no reason why they should be harmed so that they can continue to provide privacy to the site and at the same time enhance the environment of the street
. . .
(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete; or
(aa) 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 so impede such user; or . . .
(c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction . . .
The section 37 Agreement was freely entered into by the owners of the land in 1967 and in the intervening years there has been no change in circumstances which would cause the local planning authority to change its view that it is in the interests of the amenities and the environment of the area that this piece of land remains undeveloped.
The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.
The electronic text of this judgment was provided by Estates Gazette, whose assistance is gratefully acknowledged.