ON APPEAL FROM UPPER TRIBUNAL
(MR BARTLETT QC, PRESIDENT)
 UKUT 260 (LC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LADY JUSTICE BLACK
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Hampstead Garden Suburb Trust Limited
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Mr Tom Weekes (instructed by Lee Bolton Solicitors ) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Laws:
"Hampstead Garden Suburb is an estate in north London of about 800 acres containing over 5000 properties. It was developed, mostly between 1907 and 1938, through the vehicle of the Hampstead Garden Suburb Trust Limited, a predecessor of the present body, on the basis of a formal plan initially prepared by Barry Parker and Sir Raymond Unwin, with Sir Edwin Lutyens as consultant and designer of part of the area, and then carried on by J C S Soutar. Soutar was the Trust architect, in succession to Unwin, from 1915 to 1951. The Suburb represents the implementation of the social and architectural concept of its founder, Dame Henrietta Barnett. One of the guiding principles was that the interests of individual property owners should be subservient to the interests of the wider community. Sir Nikolaus Pevsner described the Suburb as 'The aesthetically most satisfactory and socially most successful of all C20 garden Suburbs' (The Buildings of England: London 4: North 1951]".
" Under section 9(1) of the 1967 Act application could be made to the High Court for approval of a scheme of a management in an area occupied under tenancies held from one landlord where the Minister for Housing and Local Government had given his certificate that
'in order to maintain adequate standards of appearance and amenity and regulate redevelopment in the area in the event of the tenants acquiring a landlord's interest in their house...it is in the general interest that the landlord should retain powers of management in respect of the house'.
And under subsection (3) the Minister in considering whether to grant a certificate and the High Court in considering whether to approve a scheme were required to have regard
'primarily to the benefit rightly to result from the scheme to the area as a whole...and the extent to which it is reasonable to impose, for the benefit of the area, obligations on tenants so acquiring their freeholds; but regard may also be had to the past development and present character of the area and to architectural or historical considerations to neighbouring areas and to the circumstances generally.'"
"On 7 July 1970 the Minister granted a certificate that 'for the purpose of ensuring the maintenance and preservation' of the Suburb the Trust should have in respect of enfranchised properties powers of management under a scheme of management. An order of the High Court of 17 January 1974, amended by an order of 17 February 1983, approved the scheme "
"no alteration shall be made to the external appearance of any building for the time being standing on the property."
"without the consent as aforesaid no alteration shall be made to the external appearance of any building for the time being standing on an enfranchised property."
Thus plainly the restriction is expressed in the same words in the two documents. I should add that the scheme also provides that consent is not to be unreasonably withheld.
"24. In 1984 Hampstead Garden Suburb was designated a conversation area, and the council as local planning authority has made an Article 4 direction, the effect of which is to give the council control over almost all external works to properties in the Suburb and new building works. In 1994 the Trust and the council produced joint Design Guidance giving advice on any building works, alterations to existing properties and works to trees that might be proposed in the Suburb. It stated that the Trust and the Council would judge any application in the light of the guidance that it gave. The section of the document headed 'Extensions' says:
'Extensions will permanently alter the appearance and character of a property. The low overall density of development on the Suburb means that in many cases some extensions can be allowed without harm to the individual house or its neighbourhood. Rear ground floor extensions may be acceptable, but the impact on neighbouring properties will be carefully assessed. Front extensions are most unlikely to prove acceptable. Side extensions may close up the gaps between properties, creating continuous 'terracing' which destroys the open character of the layout and the carefully designed views between buildings.'
25. The document then set out six points, which, it said, The Trust and the Council would consider when assessing whether to accept a proposed extension. Of particular relevance to the present case is point 4:
' Will the extensions be visible from the road or another public viewpoint and, in particular, will they encroach upon spaces between buildings, closing out distant views?
In general, any extensions should be to the rear of the property. We normally resist extensions that would intrude upon well established views, for example two-storey side extensions or extensions above existing garages.'
26. Then this was said:
'These points serve as guidelines, but it should be borne in mind that all proposals are assessed on their individual merits and that there may be cases where extensions are considered unacceptable, even though they may appear to conform with these guidelines.'"
"(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 Upper 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 Upper 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."
"The case for the Trust is that the restriction secures to it, as the body with the function of protecting the character and amenities of the area, a practical benefit of substantial advantage in enabling it to prevent the proposed extension. The extension, it is said, would be out of keeping with the design of the principal part of the house and with that of houses in the area; it would significantly reduce views of trees and bushes and the rear gardens beyond; and it would constitute a precedent for other such extensions in the vicinity which collectively would have a severely adverse effect. For these reasons ground (aa), it is said, is not made out. Alternatively, Mr Tom Weekes for the Trust argues, even if the benefit secured is not a substantial advantage, the Trust would nevertheless suffer some disadvantage through the modification: money would not be an adequate compensation for this disadvantage, since the interests of the Trust is in protecting the interests of the neighbourhood; and accordingly the second requirement under subsection 1A will not have been established. Moreover the disadvantage that the Trust would suffer would also constitute injury for the purposes of ground (c), which consequently would not have been made out. "
The purpose of the restriction imposed by the transfer and under the scheme of management is to ensure the preservation of the amenities of the suburb." (Paragraph 16 of the judgment)
The President directed himself that if the proposal had no adverse effects on those amenities the section 84(1C) ground would be made out.
"38. The particular character of Ingram Avenue, Mr Velluet said, was not only shaped by the prevailing neo-Georgian architectural character of the individual houses but also by the generous spacing of the property that allowed views to be gained, through the spaces between the individual houses and above the garages, of the trees in the open green areas beyond the houses and the gardens to the rear -- Hampstead Golf Club to the north and east and the remaining part of Turner's Wood to the south and west. This feature reflected a fundamental objective of the creators of the Garden Suburb.
39. Mr Velluet said that he considered that the scale proportion and design of the proposed extension, in addition to seriously compromising the view through to the trees on the land to the rear of the property, would seriously challenge the important pre-eminence of the existing house when viewed from the street and the ancillary and subordinate character of the single-storey garage to the side."
"...that the proposal was expressly designed to harmonise with his [that is Mr Pask's] own redesign of the house "
and its effect on the view from the pavement would be very modest. The President concluded as follows:
"41. While I recognise the care and skill that Mr Pask has brought to bear in an effort to make acceptable in design terms the first floor extension that his clients wish to have, I prefer the assessment of Mr Velluet. That assessment accords with the strongly expressed view of the CAAC. It is clear that the design concept, applied to the great majority of the houses in Ingram Avenue, is that the garage, being single-storey and flat-roofed (and thus utilitarian in appearance, as Mr Pask put it) and set well back from the facade, should be seen only as a minor addition to the house, recessive and unobtrusive. Here the front of the garage has already been brought forward from its original position. The proposal to add a first floor, having a hipped roof set behind a parapet, with one of the gables being angled away from the house, would be contrary to the design concept both in terms of its physical features and the impact that these would have on the relationship of garage and house.
42. I accept that the degree to which views of greenery to the rear of the house would be reduced is small. The principal feature to be seen is the large oak tree and this can be seen above the roof of the house itself as well as through the garage gap. . However, the raising of the garage roof would in my view inevitably reduce the sense of openness, and it would compound the purely architectural effect of the extension in making the garage less subordinate to the house. The contribution that the house makes to the character of the area would in consequence be adversely affected. . These are essentially the effects about which the Design Guidance is concerned and which underlie the policy that such extensions should normally be resisted. In my view the Trust was justified in concluding that the proposal would be contrary to the policy and should not be granted consent."
"The tribunal could not, on the evidence before it, have concluded that the applicants had failed to satisfy the tribunal that 'the proposed development does not secure to the Trust a practical benefit of substantial advantage'. The tribunal should have concluded and could only reasonably have concluded on the evidence before it that the proposed modification did not harm the character of the area and (insofar as precedent was relevant at all) did not constitute an undesirable precedent for the area."
"There is no reasonable prospect of success on any of the grounds advanced. As far as Mr Velluet is concerned, his evidence on the effect of the extension was based on the house in its existing state and I placed reliance on his evidence on this basis. His views in this respect were not dependent on whether the house was in its original state or altered, and no suggestion that they were was advanced by counsel in closing. If they had been I would have dealt with them in this way. It was the case for the applicants that the recent alterations to the façade of the house were an improvement, and the Trust did not dissent from that."
"For the applicants Mr Swart and his witness Mr Burroughs placed reliance on the history of the planning applications in two respects. The first point was a narrow one. They said that the CAAC advice on the 2010 application shows that it had reversed the view that it had earlier expressed on the 2007 application that 'the scheme conflicts with all guidance on two storey extensions'. I am quite unable to accept this. The 2010 application was made to renew an earlier permission that was just about to expire, and an officer had said that renewal ought to be entirely routine. It is in my view improbable that the 'No objection' [I interpolate that was the CAAC's comment on the 2010 application] reflected an unexplained reversal of the trenchantly expressed advice of 2007 rather than a recognition that the application was for the renewal of an extant permission in respect of which no new material considerations arose."
"45...Applications for similar developments have not so far been made, she [that is the witness, Mrs Blackburn] thought because it was known that the Trust, applying the policy, would refuse them. If the present proposal was permitted through modification of the restriction, she had little doubt that further applications would be made, and she instanced two houses in Ingram Avenue, currently in the hands of a developer, for which such proposals could well be made. On this issue I prefer the views of Mrs Blackburn, who impressed me with her knowledge of the suburb and the evident integrity and balance that she brought to her assessments."
"If and insofar as the tribunal could have concluded that there was some (rather than substantial) advantage to the Trust, the Tribunal was wrong to conclude the Trust was a 'guardian of the public interest' (or if so) that the application failed because money would not constitute an adequate compensation for the disadvantage. The Tribunal's approach distorted the intended statutory effect of section 84(1) and (1A)...making it near impossible for an application to succeed where there is (i) a Scheme of Management and effectively fettering the discretion of the Tribunal in such cases."
"The members said that money would not be an adequate compensation to the corporation for the discharge of the covenant. I think that must be right. If the covenant is of value to the corporation for the protection of the public interest in the preservation of the amenities, it is difficult to see how a money payment could be adequate compensation."
Lord Justice Toulson:
Lady Justice Black:
Order: Appeal dismissed