England and Wales Lands Tribunal

You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Diggens & Ors, Re [2000] EWLands LP_25_2000 (20 November 2000)
URL: http://www.bailii.org/ew/cases/EWLands/2000/LP_25_2000.html
Cite as: [2000] EWLands LP_25_2000, [2000] 3 EGLR 87

[New search] [Printable RTF version] [Help]

[2000] EWLands LP_25_2000 (20 November 2000)

LP/27/1999

LP/25/2000

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANTS – restriction to 1 house per plot – application to modify to allow residential development in rear gardens – whether practical benefits of substantial value or advantage secured to objectors – whether injury to objectors – related application to modify restriction relating to approval of plans – both applications dismissed – Law of Property Act 1925, section 84(1)(aa)(1A)(1B)

IN THE MATTER of APPLICATIONS under SECTION 84(1) of the

LAW OF PROPERTY ACT 1925

BY RODNEY IAN DIGGENS

MARGARET HAZEL KING

ROBERT HENRY COX

GEORGETTE ALBINE COX

Re: 37, 39 and 41 Seymour Road

St Albans, Hertfordshire

Tribunal Member: P H Clarke FRICS

Sitting at 48/9 Chancery Lane, London WC2

on 23 & 24 October 2000

The following cases are referred to in this decision:

Re Bass Ltd (1973) 26 P & CR 156

Bell v Norman C Ashton Ltd (1956) 7 P & CR 359

Re Bromor Properties Ltd (1995) 70 P & CR 569

Re Tarhale Ltd (1990) 60 P & CR 368

Re Snaith & Dolding (1995) 71 P & CR 104

Re Martin (1988) 57 P & CR 119

Gilbert v Spoor [1983] 1 Ch 27

Re Sheehy (1991) 63 P & CR 95

Re Chandler (1958) 9 P & CR 512

Re Stevens (1962) 14 P & CR 59

Re Banks (1976) 33 P & CR 138

Re Gossip (1972) 25 P & CR 215

Re North (1998) 75 P & CR 117

Re Saviker (No.2) (1973) 26 P & CR 441

Stannard v Issa [1987] AC 175

Re Henderson's Conveyance [1940] Ch 835

Re Williams (1988) 55 P & CR 400

Re Ghey & Galton [1957] 2 QB 650

Re Farmiloe (1983) 48 P & CR 317

Re Henman (1972) 23 P & CR 102

McMorris v Brown [1999] 1 AC 142

Ridley v Taylor [1965] 1 WLR 611

Mr Gary Webber of counsel instructed by Taylor Walton, solicitors of Luton, for the applicants.

Mr Edward Cousins of counsel instructed by Dawson & Co, solicitors of London WC2, for the principal objectors.

Mrs Anne Kalocza, an objector, in person.

The other objectors did not appear and were not represented.

DECISION OF THE LANDS TRIBUNAL

These are two applications under section 84 of the Law of Property Act 1925 by the owners of three houses for an order modifying restrictive covenants to allow residential development in their rear gardens. The objectors are owners of nearby houses with the benefit of the covenants.

Mr Gary Webber of counsel appeared for the applicants and called Mr John E G Lowe FRICS, a partner in Kirkby & Diamond, chartered surveyors and land agents, with offices at St Albans, Luton and Milton Keynes; and Mr Gil Briffa Dip Arch RIBA, a partner in Briffa Phillips, architects of St Albans.

Mr Edward Cousins of counsel appeared for the principal objectors and called Mr Barrington C Sworn FRICS, sole principal of Sworn and Co, chartered surveyors of Chiswick W4; Mrs Jeanette Grenby; Dr Trevor Hilary Grenby; Mr David Raymond Privett; Mrs Barbara Louise Hearn; Dr John Michael Hempenstall; Mr Nicholas Michael Sirman Jones; and Mrs Elaine Mandy Blencowe.

Mrs Anne Kaloczi, an objector, gave evidence on her own behalf. The other objectors did not appear and were not represented at the hearing.

FACTS

On the evidence I find the following facts.

These applications concern land forming part of the rear gardens of 37, 39 and 41 Seymour Road, St Albans ("the application land"). Seymour Road is in a residential area to the north of the city centre. It runs in a north-westerly direction from Sandridge Road to Beech Road. The even numbers are on the north side and the odd numbers on the south side. The houses in Seymour Road were mainly built in the inter-war period and are detached and semi-detached. Many of the houses have long rear gardens, particularly on the south side, including the applicants' and the principal objectors' houses. At the south-eastern end of the road, near the junction with Sandridge Road, Fontmell Close joins Seymour Road on the south (or odd numbers. side) and runs parallel to that road behind nos. 1 to 35 Seymour Road. Fontmell Close is a cul-de-sac developed in the 1970s and has 50 houses, detached, semi-detached and terraced. The plots are smaller than those in Seymour Road. Bridle Close is a small cul-de-sac off Fontmell Close. Fontmell Close ends at the south-western boundary of the rear garden of 37 Seymour Road, part of the application land. Behind the houses in Seymour Road are two schools, Heathlands School, behind the application land and the principal objectors' houses, and Spencer Junior School to the north-east. Sheppards Close is a residential cul-de-sac off Beech Road, to the west of Seymour Road.

The application land comprises parts of the rear gardens of 37, 39 and 41 Seymour Road and is an approximately oblong plot bounded on the north-east by the remaining parts of the rear gardens of nos.37-41 (nearest the houses); on the south-east by 49 and 50 Fontmell Close and the footpath and carriageway of that road; at the rear, or south-west, by Heathlands School; and on the north-west by the rear gardens of 43 and 45 Seymour Road. 37, 39 and 41 Seymour Road are detached houses. The gardens forming the application land are now mature, with lawns, trees and bushes and are generally attractive in appearance. The principal objectors own 45, 47 and 49 Seymour Road, detached or semi-detached houses, immediately adjoining or close to the north-western boundary of the application land. The rear garden of no.45 extends to the rear of the shortened garden of no.43 so that it shares a common boundary with the application land. The rear garden of no.49 extends behind the shorter garden of no.51.

By conveyances dated 20 September 1923 Earl Spencer conveyed the plots now known as 37, 39 and 41 Seymour Road (including the application land) to John Dickens (37), Charles Osman (39) and Charles Cox (41). Each conveyance provided that:-

"…the Purchaser for himself his heirs and assigns owners or occupiers for the time being of the land hereby conveyed and to the intent that the burden of this covenant shall run with the land hereby conveyed and the benefit thereof with the adjoining land of the Vendor as such Tenant for Life as aforesaid but so as not to impose any personal obligation on the Purchaser after he shall have parted with the possession of the said land hereby covenants with the Vendor to observe and perform the stipulations and restrictions mentioned in the First Schedule hereto"

The First Schedule contains the two restrictions which are the subject of these applications:-

"2. Not more than one detached or semi detached house shall be erected on the said land such house to be of not less pre-war value than £350.00 to be estimated according to the actual price of materials and labour employed in the erection thereof exclusive of boundary walls or fences and no such house or building shall project beyond the 20 feet building line shown on the said Plan

4. No house shall be erected on the said land until the plans thereof have been submitted to and approved by the Vendor's Agents and their fee of 10s 6d for such approval paid by the Purchaser"

I will refer to the first of these covenants (no.2) as "the density restriction" and to the second (no.4) as "the plans restriction". The applicants are the successors in title of the above purchasers. The objectors are the successors in title of the adjoining land formerly owned by Earl Spencer.

Some of the objectors commenced proceedings in the High Court regarding the enforceability of the restrictions. By an order of the Chancery Division made on 14 July 1998 it was declared that:

(1) the plaintiffs (Dr Grenby, Mr and Mrs Hearn and Dr and Mrs Hempenstall) are entitled to enforce the restrictions against the defendants (Litchfield Developments Limited and the applicants in this current application);

(2) the restrictions prohibit the erection of additional houses on the application land.

It was ordered that the defendants shall be at liberty to apply to the Lands Tribunal under section 84 of the Law of Property Act 1925.

By a deed dated 22 July 1974 between (1) Earl Spencer and others and (2) H J Brosnan Limited, Earl Spencer released (to the extent that he had power to do so) to Brosnan and their successors in title the covenants in the conveyances dated 20 September 1923 to permit the erection of 15 houses in addition to the existing houses and to forego his right to approve the plans. This release related to land which now forms part of Fontmell Close.

On 1 July 1998 Briffa Phillips submitted on behalf of Lichfield Developments Limited an application for planning permission for the erection of five houses on the application land. This application was refused by St Albans City and District Council on 11 August 1998 on grounds of overdevelopment. On appeal an inspector appointed by the Secretary of State for the Environment, Transport and the Regions granted conditional planning permission for the erection of four four-bedroom houses and one three-bedroom house. The letter granting permission was undated but is believed to have been issued in or about February 1999. The permitted development comprises the extension of Fontmell Close onto the application land and the erection of three houses on the north side (plots 3-5) and two houses on the south side (plots 1 and 2).

The current development plan comprises the Hertfordshire County Structure Plan 1998 and the St Albans District Local Plan Review 1994. In the former, Policies 1, 6 and 7 identify St Albans as a location for development and regeneration. Proposals should be consistent with sustainable development. Policy 9 requires local plans to make provision for a net increase in dwellings. In the Local Plan, Policy 2 provides for the concentration of development in St Albans. Proposals should not detract from the essential character of the settlement. Policy 4 contains a general presumption in favour of housing development in St Albans. Policy 69 details general design and layout requirements, including the need to take into account the scale and character of the surrounding area. Policy 70 states that the design of new housing development should also meet certain objectives, including design and layout, privacy and amenity space.

Other planning decisions relating to the development of the application land are as follows. On 7 April 1977 planning permission was refused for the erection of one chalet bungalow. In May 1996 the Planning Sub-committee of St Albans Council recommended the grant of planning permission for the erection of six detached houses subject to a planning agreement relating to traffic calming works. This agreement was not completed and the application was withdrawn. On 28 April 1998 planning permission was refused for the erection of five four-bedroom houses.

On 2 August 1999 the applicants applied to this Tribunal under section 84(1)(aa) and (c) of the Law of Property Act 1925 ("the 1925 Act") for the discharge or modification of the density restriction to permit the building of five houses on the application land. The application was later amended to provide solely for the modification of the restriction. 65 objections were made by the owners of adjoining houses with the benefit of the restriction. Six objections were later withdrawn. All objections are admitted. 10 objectors were represented by Mr Cousins at the hearing (Dr and Mrs Grenby, Mr and Mrs Hearn, Dr and Mrs Hempenstall, Mr and Mrs Jones and Mr and Mrs Henning-Brodersen). A further objector, Mrs Kalocza, gave evidence on her own behalf.

The applicants submitted a second application, to discharge or modify the plans restriction. The question arose whether this application was necessary or whether the original application (to discharge or modify the density restriction) could be amended to include this further restriction. The objectors contended that the Lands Tribunal has no power to make such an amendment. The matter was heard by the President and by a decision dated 21 July 2000 he determined that this Tribunal has no power to permit the amendment of an application by adding to it a restriction not previously included. The applicants therefore made a further application to the Tribunal dated 21 July 2000 under section 84(1)(a), (aa) and (c) of the 1925 Act to discharge or modify the plans restriction in conjunction with the proposed development of the application land. Two objections were made and both objectors later agreed to the modification of this restriction. The application to modify the plans restriction is linked to, and dependent on, the application to modify the density restriction.

I inspected the application land, Fontmell Close and Seymour Road on 20 October 2000 accompanied by representatives of the parties. I viewed the application land from the rear gardens of 45, 47 and 49 Seymour Road and from inside nos. 45 and 47. Trees and bushes were in almost full leaf at the time of my inspection.

DENSITY RESTRICTION

The proposed modification is as follows:-

"2. Not more than one detached house or semi-detached house shall be erected on the said land such house to be of not less pre-war value than £350 to be estimated according to the actual price of materials and labour employed in the erection thereof exclusive of boundary wall or fences and no such houses or building shall project beyond the 20 feet building line shown on the said Plan SAVE that further houses may be built upon the said land if the following conditions are complied with:

(1) That the said houses are built pursuant to the planning permission granted on appeal by Philip Ware BSc DipTp MRTPI, Planning Inspector, in planning application no.5/981237 and in accordance with the conditions imposed by the said inspector.

(2) That the window shown in the flank wall of the house on Plot 2 on the plan entitled "Ground Floor Layout Proposal" (revision B, dated 26 May 1998, forming part of the planning application) shall not be inserted.

(2A) No new windows or other openings shall be inserted and no existing openings shall be enlarged in the ground floor of the west flank walls of the houses on Plots 2 and 3 (shown on the plan entitled External Elevations dated 24 June 1998, forming part of the aforesaid planning application) without the written consent of the freehold owner(s) of 45 Seymour Road".

The words to effect the modification are in italics.

Section 84(1)(aa) of the 1925 Act

The requirements of paragraph (aa) of subsection (1) of section 84 of the 1925 Act can be expressed as a series of questions (see Re Bass Ltd at pages 157-8). The parties agree that the proposed user of the of the application land for the erection of five houses is a reasonable user of the land which is impeded by this restriction. The applicants do not maintain that the impeding of this user by the restriction is contrary to the public interest. This leaves two questions for my consideration. The first is whether the restriction in impeding the proposed user of the application land for the erection of five houses secures practical benefits to the objectors which are of substantial value or advantage to them? If not, the second question is, whether money will be an adequate compensation for the modification of the restriction and, if so, what amounts should be awarded?

I look now at the first question, the benefits (if any) secured by the restriction.

Applicants' case

Evidence

Mr Lowe referred to the proposed development of the application land and its relationship with 43 and 45 Seymour Road. The latter has a rear garden of 62 metres, part of which (35 metres) is behind the shorter garden of no.43. Plot 3 in the proposed development will be 25 metres distant but on the other side of the neighbouring garden. Plot 2 will be over 50 metres from the house. The existing houses on the opposite side of the Seymour Road are closer to nos. 43 and 45 than the proposed houses. No minimum garden size is included in the Local Plan. St Albans Council permit new housing to have as little as 10 metres provided there is a minimum "back to back" distance of 27 metres. The proposed development satisfies this policy. The rear elevation of 45 Seymour Road will be 52 metres (170 feet) from plot 2 compared to the existing houses which back onto the Fontmell Close houses which are only on average 47 metres (154 feet) from the latter.

Plot 2 will only be partly seen from 45 Seymour Road and then only at certain times of the year. It will be visible from the lower part of the garden. The new houses will not restrict sunlight to the existing houses. There may be some shadowing in the gardens but no more than would be caused by neighbouring trees. The developers of the proposed houses are expected to carry out screening or planting along the boundaries to ensure privacy. The owner of 41 Seymour Road could erect a two metre fence along his boundary without planning permission.

The saleability of 45 Seymour Road will not be affected by the proposed development. Demand is strong in St Albans, particularly for older properties. No.45 is a modern in-fill property and the saleability and appeal of this property is uncertain, whether or not the proposed development takes place. Adverse perception of a development can be greater than actual impact. Housing pressure in St Albans has resulted in infilling and backland development becoming commonplace. There has been a trend in recent years against houses with large gardens and most new estates have small gardens. Backland development in houses with large gardens is now viable. This has resulted in a more economic use of land and less pressure on the green belt. Owners of houses with large gardens can sell off part to reduce maintenance and still remain in occupation. The proposed development will not adversely affect or reduce the value of adjoining properties. The building of Fontmell Close has permanently changed the area. The addition of a further five houses is insignificant.

The forward facing windows of plot 2 will not directly overlook the garden of no.45. The new boundary fence and shrubbery will restrict overlooking from the ground floor windows and only oblique views will be possible from the bedroom windows, rooms infrequently occupied. The position is similar for plot 3. There will be no loss of privacy to 45-49 Seymour Road. At the present the occupiers of these houses can see into each other's gardens.

The gardens of nos.45-49 are now affected by shadowing from their own trees and those on the boundary with the school. The existing trees in no.41 cast shadows over no. 45. The shadowing effect of plot 2 will be different but there will be little difference in the overall effect. There will be no shadowing to the gardens of nos.47 and 49. Plot 3 will not cause shadowing to 45-49 Seymour Road.

Although the outlook from the gardens of 45-7 Seymour Road will change this should not restrict their use or enjoyment. As to the views from the rear windows of nos.45-49 it is unlikely that the new houses will be seen from the ground floor and only partly from the upper floors.

The density restriction secures no benefits and probably had no bearing on decisions to purchase. As is evident from the development of Fontmell Close, the owners in Seymour Road no doubt considered the restriction to be an obstacle rather than providing practical benefits. In most cases owners will exploit the development potential of their property.

In cross-examination Mr Lowe accepted that the present density of 14 houses per acre will be increased to 25 per acre by the proposed development.

Mr Briffa said that his firm are engaged by Litchfield Developments Ltd, who will carry out the proposed development if these applications are successful. Plots 2 and 3 will not look directly into the garden of 45 Seymour Road. The only window in the flank wall of plot 2 will be at ground floor level and the view will be obstructed by a 2 metres fence on the boundary. There will be a window at ground floor level on the flank wall of plot 3, for a toilet with opaque glass. There will also be a window with opaque glass on the half landing.

Submissions

Mr Webber referred to the poor quality of the objectors' evidence, which contained irrational fears, emotive language and much exaggeration.

There are three main areas of dispute: the privacy of no.45, the outlook from no.45 and to a lesser extent from nos.47 and 49 and shadowing to no.45. He referred to the matters agreed between Mr Lowe and Mr Sworn (see below), to paragraphs 18, 20, 26, 32 and 35 in the inspector's report and conditions 7 and 8 in the planning permission. These all favour the application. The conditions in the planning permission are for the protection of adjoining owners. The change in outlook due to the proposed development will not significantly alter the level of amenity currently enjoyed by residents. There would be no harm to the living conditions of adjoining residents in relation to overlooking and outlook.

Mr Webber referred to the evidence of Mr Lowe and Mr Sworn. Privacy will be protected by the small number of windows in the flank walls of the proposed houses and the planning conditions relating to them. The outlook over the application land from 45 Seymour Road is now limited and oblique and from the other houses virtually non-existent. The proposed development will mainly affect the rear part of the garden of no.45. It is accepted that the absence of the development at the present time is a practical benefit but it is not of substantial value or advantage. There will be no depreciation in value of nearby properties.

Mr Webber said that fear of future development (the thin end of the wedge argument) arises only in respect of the south side of Seymour Road due to the existence of Fontmell Close. The proposed development would set no precedent for the north side of the road nor in respect of development other than the extension of Fontmell Close.

In his reply to Mr Cousins's submissions Mr Webber said that Bell v Norman C Ashton Ltd, in Mr Cousins's view a crucial decision, did not concern an application under section 84 of the 1925 Act. It dealt with the enforcement of covenants under a building scheme. It does not set the scene under section 84 where contractual rights may be departed from in appropriate circumstances. Mr Webber accepted that the grant of planning permission and the requirements of section 84 are not co-terminus, but the planning history of the application land must be taken into account under section 84(1B) and is relevant to the exercise of the Tribunal's discretion.

Decisions of the Lands Tribunal on practical benefits are of limited assistance: it is necessary to look at the facts of each particular case. The decision in Re Bromor Properties Ltd, that covenants are to be upheld to maintain the status quo, does not apply to the current application due to the absence of a building scheme, a material factor in Bromor. The objectors rely on Re Tarhale Ltd to show that the prevention of disturbance during building works can be a practical benefit. This decision can also be distinguished: in Tarhale there was evidence that an "intolerable nuisance" would occur during the works. There is no such evidence here. Any works are bound to cause annoyance. On the "thin end of the wedge" argument the decision in Re Snaith and Golding must be applied with caution. The covenants in Snaith were part of a successful building scheme which would be breached by grant of the application. That is not the position here. There is no building scheme and the density restriction has already been breached by the construction of Fontmell Close.

Objectors' case

Evidence

Mr Sworn said that the restrictions are of enormous benefit to the objectors in preventing the proposed development. The windows in the houses on plots 2 and 3 will look directly into the house and garden of 45 Seymour Road. There will be a complete loss of privacy. Planning conditions 7 and 8 (opaque glazing of windows) are a poor substitute for private rights preventing high density development. The change in the area will be dramatic, with the new houses on plots 2 and 3 looking directly into the gardens of 45-49 Seymour Road. Mr Sworn referred to paragraphs 33 and 34 in the inspector's decision letter (referring to the criteria in Policy 70 in the Local Plan regarding privacy) and said that he disagreed with the inspector's conclusions. He ignored the point, said Mr Sworn, that increased distances between houses will be required when a feature of the area is greater space between buildings, clearly a characteristic of Seymour Road.

The proposed development is to the south-west of 45 Seymour Road and will result in considerable loss of sunlight to the rear garden.

The proposed development will produce a dramatic change in the outlook from 45-49 Seymour Road, in the gardens and from the rear windows. The relaxation of the density restriction will set a precedent and could lead to the further extension of Fontmell Close. The prevention of this development is a substantial practical benefit. The character of Seymour Road would be changed by the proposed high density development. The adverse effects would reduce the values of no.45 by about 7 per cent and nos. 47 and 49 by about 3 percent and 5 percent respectively. The development of Fontmell Close in the 1970s has not resulted in any change in the character of the neighbourhood and had no effect on no.45.

The large number of objectors is material and should be given considerable weight. They would be injured by the proposed development.

Mrs Grenby is co-owner of 45 Seymour Road where she has lived since 1965. She is chairman of a local residents association concerned with these applications.

Mrs Grenby said that, if the proposed development goes ahead, there will only be a fence separating her rear garden from the extension of the carriageway of Fontmell Close. There will inevitably be noise, bustle and disturbance. Wild life in the garden will be affected. The side walls of the new houses will be only one metre from the boundary with no room for screening. Screening by planting in the garden of no.45 would reduce the area of the garden. The new houses will block light and sunshine to her house and garden for much of the day. Windows in the new houses will look into the adjoining gardens with resultant loss of privacy. There will be noise and disturbance during the construction period. The proposed development provides for 22 car spaces, indicating the extra traffic to be generated. This will add to congestion in Seymour Road, particularly at the junction with Fontmell Close and Watsons Avenue.

Many residents of Seymour Road bought their houses because of the long gardens. These are particularly suitable and safe for children. They are well-maintained and should not be sacrificed to bricks and mortar. Many residents have stayed longer than usual due to the seclusion and tranquillity of the gardens. They rely on the restrictions to preserve these amenities and prevent overdevelopment. Apart from the building of Fontmell Close, which does not affect 45 Seymour Road, the area is the same in character as when the restrictions were imposed and is the area they were designed to protect. Mrs Grenby was not aware of the breach of the restriction by the development of Fontmell Close until work was in progress. She did not, however, try to stop it because she was not directly affected. The modification of the density restriction would give a "green light" to other proposals which would alter the character of the area.

The view from the rear windows of no.45 is an unbroken expanse of greenery. The school at the rear of the garden is screened, even in winter. This view represents the principal value of the house. Objections to the proposed development are to preserve the current position and not to obtain money.

Dr Grenby is co-owner of 45 Seymour Road. Before he retired he commuted to London and the return home was a breath of fresh air – literally and metaphorically. Sitting or working in the tranquillity or seclusion of the garden was, and still is, a form of therapy.

The rear garden is long but narrow. In November 1970 Dr Grenby bought the rear part of the garden of no.43. Approaches were made by developers wishing to buy rear portions of back gardens but Dr Grenby was not interested and did not reply. This was the first he heard of what became the Fontmell Close development. He later heard that this road was forced to stop several properties away from his house. He is content for that to be the limit of this road, with a buffer zone protecting his house and garden. The local authority did not consult adjoining residents before granting planning permission for this development. Some time later building works commenced at a distance from no.45. It did not occur to Dr and Mrs Grenby that it would infringe their rights under the restriction. Later the developer extended behind 29-35 Seymour Road. If the owner of no.37 was content to have development up to his boundary, Dr Grenby said that it was not for him to object as they were not affected.

The proposed development is, however, a different situation. No.45 would be seriously affected. The tranquillity of the garden would be shattered, putting an end to privacy and seclusion, cutting out sunlight and spoiling the outlook. Dr Grenby said that he appreciated that the restrictions do not guarantee the outlook from the rear but they do secure the likelihood that matters will remain as they have been since they were imposed. The new development would affect Dr and Mrs Grenby to a substantial degree but can be prevented by enforcement of the density restriction.

There were no proposals for backland development between 1977 and 1995, when Heathfield Homes had various proposals, including the demolition of existing houses in Seymour Road for access. Dr Grenby refused to make his land available and referred to the restrictions. Other developers had proposals in 1996 including an offer of £30,000 for the purchase of part of the rear garden of no.45. Dr Grenby objects in principle to all backland development.

Mr Privett has lived at 49 Fontmell Close since October 1982; he previously lived at no.50 (since September 1974). Mr Privett referred to the proposed extension of Fontmell Close onto the application land. This would be over a triangular area cultivated by him as part of the front garden of 50 Fontmell Close. A residents association has been formed to oppose the extension of Fontmell Close even though members do not have the benefit of the restrictions. This road is now quiet and private, terminating at a row of mature conifer trees. The extension now proposed would be entirely different from the original conception of the road in two phases. Residents suspect that the modification of the restrictions would lead to further development. Mr Privett produced a plan showing how Fontmell Close might be extended to Sheppards Close. The planning system cannot be relied on to discourage extra housing.

Mrs Hearn is co-owner of 47 Seymour Road but now lives with her husband and family at 42 Homewood Road, St Albans. They moved there in 1999 to accommodate their growing family. 47 Seymour Road is now let and is to be sold next summer. If the proposed development proceeds this would adversely affect interest in no.47 and the selling price. A major reason for buying 47 Seymour Road was the large and secluded back garden. They expected this to be protected by the density restriction. When the house was let last year it was clear that the large garden was attractive to families with young children. The loss of the restriction would be detrimental to the house and the character of the area. The web of restrictions on the estate would be undermined. There would be at least a temporary reduction in value if the proposed development goes ahead. Mrs Hearn's objection is not financial but relates to the principle of upholding long standing rights applicable to all owners on the estate.

Dr Hempenstall purchased 49 Seymour Road with his wife in 1988 and they live there with their family. When they bought the house the large and secluded garden appealed to them. Their children need a secure and private playing area. Mrs Hempenstall is a keen gardener. The proposed development will diminish privacy. The attractive open views will be altered. The existing extent of Fontmell Close has no significant effect. They cannot rely on planning control to protect them. The benefit given by the restriction is that it gives them an effective say in limiting overdevelopment near their house. Overriding the restriction will deprive local residents of their ability to decide whether it should be enforced. Residents do not wish to see the proposed development proceed. The enforcement of the restrictions will remove anxiety about possible detrimental effects. The residents' wish to preserve the existing situation should not be nullified even if the developer is willing to pay compensation. The modification of the restriction will set a precedent which may well pave the way for more houses in Seymour Road and Sheppards Close. This will change the character of the area. The building of the proposed houses will cause disruption for a temporary period.

Mr Jones lives with his family at 75 Seymour Road. He is a chartered quantity surveyor and produced in evidence a model showing the proposed development. He purchased no.75 six years ago after a search for a house with a large garden suitable for two young children. He was made aware of the density restriction and felt secure in the knowledge that further development could be prevented. Large gardens are important for children and their enjoyment would be impaired if nearby gardens are used for further backland development, thus destroying the character of the area and the outlook. This development could be an extension of Fontmell Close or the redevelopment of houses in Seymour Road or Sheppards Close. The development of Fontmell Close in 1972-74 had no bearing on no.75 but the proposed development would create a precedent.

Mrs Blencowe is co-owner of 6 Sheppards Close. It is subject to the density restrcition. Her family enjoy their garden and would not want a precedent to be set by the modification of the restriction, leading to further backland development.

Mrs Kaloczi bought 40 Seymour Road with her husband in 1984. They took particular note of the density restriction and believed that it would maintain the character of the estate. Overdevelopment may cause a decline in the native bird population. The restriction is legally binding and should not be broken.

Submissions

Mr Cousins said that the applicants have been unable to show that the application satisfies section 84(1)(aa) of the 1925 Act. The restriction secures substantial practical benefits to the objectors and money would not be adequate compensation for the loss suffered by the modification.

Mr Cousins referred to Bell v Norman C Ashton Ltd (at pages 368-70) and Re Bass Ltd (at pages 157-9). These decisions set the scene. In the former Harman J emphasised sanctity of contract where there had been breach of a density restriction following the grant of planning permission. In Re Bass the Lands Tribunal drew a distinction between the requirements of section 84 and the grant of planning permission. The decision of the Court of Appeal in Re Martin sets out the status of a planning permission in a section 84 application. Even if I find that the applicants satisfy the requirements of this section I am not compelled by the grant of the planning permission to allow the application: see Gilbert v Spoor at page 34E-F and Re Sheehy at page 107.

The practical benefits secured by the density restriction are: the preservation of view, privacy, seclusion and a sense of spaciousness and tranquillity in a semi-rural atmosphere; the maintenance of the "ethos" of the benefited properties, even though there may be no depreciation in value (Re Chandler, Re Stevens); freedom from overlooking and the awareness of proximity (the "concomitants of living" (Re Banks)); freedom from interference by building works (Re Tarhale Ltd); and the avoidance of precedent ("the thin end of the wedge" (Re Snaith and Dolding, Re Sheehy)), particularly in view of past breaches by the construction of Fontmell Close. These benefits are of substantial value or advantage to the objectors.

The evidence of Mrs Grenby is compelling. The decision in Re Gossip, a case with similar facts, is particularly relevant. Re North shows that the benefit of a restriction can be attached to a garden.

Mr Cousins accepted that there is no building scheme here but cited other cases where the application was dismissed notwithstanding the absence of a scheme: see Re Chandler, Re Saviker (No.2).

Mr Cousins referred to the building of 12 houses in Fontmell Close in 1974 in the rear gardens of 29–35 Seymour Road. These gardens were subject to the density restriction which Earl Spencer purported to waive. The other houses in Fontmell Close were built mostly on former open land or on large areas of land behind the houses in Seymour Road that always had modest gardens. The building of Fontmell Close did not impinge on the objectors and their part of the estate. They are entitled to enforce the restrictions affecting 39-41 Seymour Road which are unaffected by any breach of the restrictions.

Decision

The first question under section 84(1)(aa) is whether the density restriction in impeding the proposed user of the application land for the erection of five houses secures to the objectors any practical benefits which are of substantial value or advantage to them (section 84(1A)(a))?

Mr Lowe and Mr Sworn have helpfully agreed certain matters relevant to this question. I refer to specific matters below when I consider the benefits secured by the restriction. They have also agreed the following general and other matters:-

(i) The original Fontmell Close development has not made any real change to the street scene or character of Seymour Road, nor has it had any perceived impact on 45-9 Seymour Road.

(ii) The gardens of 45-9 Seymour Road are currently affected by shadowing from their own trees.

(iii) The rear garden of no.45 is shadowed by the trees in the garden of no.41 and by the tall trees along the boundary with the school.

(iv) The shadowing which will be cast by plot 2 over the rear garden of no.45 will be of a different and more solid nature than that cast by the trees.

Two matters not agreed by Mr Lowe and Mr Sworn are:-

(i) Whether the modification of the restriction to allow the proposed development will result in a dramatic change in the outlook from 45-49 Seymour Road and a complete loss of privacy to their rear gardens?

(ii) Whether the proposed houses will have an adverse impact on the enjoyment or use of 45-49 Seymour Road?

Planning permission has been granted on appeal for the proposed development. Although Mr Webber fairly conceded that the grant of planning permission and the requirements of section 84 are different matters, the grant of the permission and the observations in the inspector's decision letter have inevitably been referred to in support of the application. I must therefore deal initially with the relationship between planning and section 84.

Section 84(1B) of the 1925 Act requires the Tribunal, when considering a case falling within subsection 1(A), "to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permission in the relevant areas." The facts regarding planning are set out in paragraphs 11 to 13 above. It is now well-established that control of development by the grant or refusal of planning permission and control by restrictive covenant are different and that, "while the two regimes impinge upon each other to some extent, they constitute different systems of control and each has, and retains, an independent existence" (per Fox LJ in Re Martin at pages 124-5.) The planning permission for the proposed development is not therefore conclusive. It is:-

"… merely a circumstance which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, destructive of the express statutory jurisdiction conferred by section 84. It is for the Tribunal to make up its own mind whether the requirements of section 84 are satisfied." (per Fox LJ in Re Martin at page 125).

In reaching my decision on this application, therefore, I take into account the grant of planning permission and the policies in the development plan, but I give little or no weight to the observations of the inspector on the effect of the development on nearby houses (see particularly paragraphs 17, 19 and 25-28 of his decision letter). The inspector's conclusions were made in the context of development control, essentially the evaluation of competing interests against a policy background, the development plan. Furthermore, he did not give evidence before me and his conclusions were not therefore open to challenge in cross-examination. The exercise which I have to undertake is quite different. I am concerned with whether the objectors' property rights should be taken away. I have to be satisfied that the requirements of section 84 of the 1925 Act are satisfied. The grant of planning permission is a matter to be taken into account but it is not decisive (per Eveleigh LJ in Gilbert v Spoor at page 34G). In Re Bass Ltd the member (J Stuart Daniel QC) said (page 159):-

"…a planning permission only says, in effect, that a proposal will be allowed; it implies perhaps that such a proposal will not be a bad thing but it does not necessarily imply that it will be positively a good thing and in the public interest, and that failure of the proposal to materialise would be positively bad. Many planning permissions have got through by the skin of their teeth, and I think that the assistance derived from a planning permission at this stage of things is little more than the negative assistance of enabling it to be said that at any rate there was not a refusal."

I have been referred to Bell v Norman C Ashton Ltd. I derive some assistance from this decision. As Mr Cousins said, it sets the scene and emphasises the difference between planning control and section 84. This case concerned a successful application for an injunction to stop building in breach of a density restriction under a building scheme. The defendants pleaded that there had been substantial breaches of the restriction with consequent changes in the character of the neighbourhood and that planning permission had been granted for a higher density than permitted by the restriction. Harman J expressed himself strongly as follows (page 369):-

[The defendants' surveyor] "said that town planning approval had been obtained for houses on this scale of density; modern conditions demand that suburban planning should be on that kind of scale; that is the right density at which suburban people ought to live; and if they do not they are obsolete and they ought to be disregarded as being anti-social persons wanting more room than in a crowded country it is right that they should occupy. I must confess that I was much incensed by this evidence. There does remain in a world full of restrictions and of frustration just a little freedom of contract. I do not see why a man should not contract that he shall have half an acre round him and not four neighbours right on him. I do not see why it is anti-social to wish to have a little longer bit of garden or a little wider bit of frontage. To suggest that because these people live on an estate near others where the density is greater their rights ought to be disregarded by the court and swept away is a proposal which I reject with some indignation."

Against this background of the relationship between planning control and section 84 I consider whether the density restriction secures substantial practical benefits. The meaning of the phrase "practical benefits of substantial value or advantage" in section 84(1A)(a) of the 1925 Act was considered in Gilbert v Spoor. The words were given a wide meaning. Eveleigh LJ said (page 32F):-

"The words of section 84(1A)(a), in my opinion, are used quite generally. The phrase 'any practical benefits of substantial value or advantage to them' is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather of a restriction which secures any practical benefits. The expression 'any practical benefits' is so wide that I would require very compelling considerations before I felt able to limit it in the manner contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the tribunal is required to consider the adverse effects upon a broad basis."

A practical benefit may be non-pecuniary (see Re Bass at page 162 and Re Stevens at page 62). In Re Bass the member said (page 162):-

"I think that the words 'value or advantage' rather emphasise that the benefits are not intended to be assessed in terms of pecuniary value only."

The mere existence of a restriction cannot in itself be a practical benefit otherwise it would be impossible for an application under section 84 to succeed. A practical benefit is secured by a restriction when it flows directly from the observance of that restriction. It is the prevention of the consequences of breach of a restriction which may secure a practical benefit. In Stannard v Issa Lord Oliver posed the question (page 188): does the restriction achieve some practical benefit? The main practical benefits claimed by the objectors in this application are: protection of view (or outlook), privacy, restriction of density, the avoidance of creating a precedent for future development (the thin end of the wedge) and the prevention of nuisance and annoyance from building operations. I consider each in turn.

I look first at the view or outlook from the objectors' houses and gardens. A view can be a benefit of substantial value or advantage (Gilbert v Spoor). The benefit of a view may be attached to the garden of a house (Re North).

Mr Lowe and Mr Sworn have agreed the following matter regarding view or outlook:-

(i) From the rear ground floor windows of 45 Seymour Road partial views of the first floor and roof of plot 3 may be seen across the intervening garden of no.43, dependent on the season and to existing trees and shrubbery remaining.

(ii) From the first floor windows of 45 Seymour Road there will be indirect views across the intervening garden of no.43 towards part of the ground floor and most of the first floor, roof and flank wall of plot 3.

(iii) From the first floor windows of 47 and 49 Seymour Road there will be indirect views of the first floors, flank walls and roofs of plots 2 and 3.

(iv) Plots 2 and 3 will be clearly visible from the rear garden of 45 Seymour Road.

From my inspection I can accept the above agreement. I would add that 47 Seymour Road has a second floor which would also have indirect and somewhat oblique views of plots 2 and 3.

The views from the houses of the new development would be indirect and I doubt whether I would find that the prevention of such indirect views by the restriction would on its own be a substantial benefit. The position is, however, different when the views from the gardens, particularly no.45, are considered. At the present time the gardens of nos.45-49 and other houses to the west have views over the application land (now gardens) which are of lawns, trees and other greenery. The lengths of the gardens emphasise the feeling of space and greenery, particularly away from the houses. It is true that the flank wall of the existing house at 50 Fontmell Close can be partly seen from the some of the gardens but this does not detract from the general characteristic of openness and greenery. The position would change considerably, however, if the proposed houses are built in the gardens of 37-41 Seymour Road. These new houses, particularly plots 2 and 3, would be clearly seen from most parts of the gardens of nos.45-49. Dr and Mrs Grenby would be particularly badly affected. The whole outlook from their rear garden would be changed. From most of their garden they would see the flank walls of plots 2 and 3 very close to their boundary fence. Where they now see gardens and greenery they would see, and be aware of, houses very close to them. There may well be noise from the new houses particularly in the summer. Dr and Mrs Grenby and their neighbours are protected by the restriction from this intrusion and loss of views. Accordingly, I find that the restriction by preventing unsightly views and intrusion secures a practical benefit which is of substantial value or advantage to the owners of 45-49 Seymour Road. Although a condition in the planning permission for the proposed houses requires the submission and approval of a landscaping scheme, I do not think it would be possible to screen or hide the new houses sufficiently to prevent the perception of the intrusion of bricks and mortar into a now open environment.

The second benefit claimed by the objectors is privacy, the prevention of overlooking and proximity. These can be practical benefits. In Re Henderson's Conveyance Farwell J said (page 849):-

"Moreover, I think there is a practical benefit in having a garden which is not overlooked by a house or houses immediately adjoining it."

In Re Gossip the Tribunal considered an application to build two additional dwellings in the gardens of two detached houses, restricted by covenant to a single house per plot. The member (E C Strathon) found that, in addition to the general fear of future development (the thin end of the wedge), the restriction secured practical benefits to the neighbouring objectors by the prevention of overlooking of their gardens. He observed that the screening of one garden by hawthorn was a poor substitute for a covenant. In addition, the building of the proposed two dwellings would have the effect of closing-in the open character of that corner of the estate. In Re Williams application was made to modify a covenant restricting development to one double or two separate or single villas to allow a house to be built in addition to the two houses already on the land. Among the benefits found to be secured by the restriction were the prevention of detriment to amenities, overlooking of windows on the ground and first floors and the sense of spaciousness enjoyed when looking over the application land.

Mr Lowe and Mr Sworn have agreed the following matter on privacy and overlooking:-

(i) There will be no views to or from the ground floor windows of plots 2 and 3 over the garden of 45 Seymour Road, assuming the erection of a 1.8 metre high boundary fence and similar ground levels.

(ii) There will be angled views from the first floor windows of plot 2 and 3 over the rear garden of 45 Seymour Road.

(iii) The occupiers of 45-49 Seymour Road can at present see into each other's gardens adjacent to the rear elevation of their respective properties from the first floor windows.

(iv) The rear part of the garden of 45 Seymour Road is not visible from nos.45 or 49 at ground level due to a deciduous trees but may be visible in winter months.

The drawings approved under the planning permission for the proposed houses show that plot 2 has one fixed window in the west flank wall and plot 3 has two windows in the west flank wall, all facing the adjoining gardens of the objectors, particularly no.45. Condition 7 in the planning permission prevents the insertion of new windows or other openings in the first floor side elevations of the new houses without the consent of the local planning authority. Condition 8 requires the first floor flank wall windows, other than a bedroom window in plot 1, to be in opaque glazing. The suggested modification of this restriction contains two conditions regarding windows in the new houses. The first (2(2)) removes the fixed window from the west flank wall of plot 2. The second (2A) provides that no new windows or other openings shall be inserted or existing windows enlarged in the ground floor of the west flank wall of the houses on plots 2 and 3 without the consent of the owners of 45 Seymour Road.

I find that the degree of actual overlooking from the new houses over the adjoining gardens of the objectors (in the sense of occupiers looking out of their windows) would probably be minimal. However, I do not think that this finding is sufficient to dispose of the objections on grounds of privacy, overlooking and proximity. Privacy refers to being private or secluded. In my view, notwithstanding the limited overlooking from the windows of plots 2 and 3, the mere presence of the new houses would be an invasion of the privacy now enjoyed by the owners of 45-49 Seymour Road (particularly no.45). This privacy is secured by the density restriction. It is true that the gardens of nos.45-49 can each be seen from neighbouring gardens but the characteristics of these gardens are seclusion and a sense of privacy which would, in my view, be greatly impaired by the erection of houses in the nearby gardens of 37-41 Seymour Road. Privacy, lack of overlooking and the absence of proximity of other houses are substantial practical benefits now secured by the restriction. The consequences of the proposed modification in terms of privacy, overlooking and proximity would be detrimental to the objectors.

The third practical benefit claimed by the objectors is a sense of spaciousness or, as it could be called, the maintenance of a low density of housing development. This is achieved by the restriction limiting density to one house per plot where many of the houses have long gardens.

The maintenance of a stipulated density can be a substantial practical benefit. In Re Saviker (No.2) an estate was subject to a scheme of development limiting the density to one house per plot. An application to modify this restriction to permit the erection of a second house on a plot was refused. The benefit of the restriction was solely vested in the developers (Henry Boot Estate Limited) who retained part of the estate. The former President (Sir Michael Rowe QC) said (page 442):-

"Section 84 speaks of 'loss or disadvantage.' Boot made no attempt to prove that the proposed modification would involve them in any appreciable financial loss but they did urge very strongly that to undermine their principle of 'one plot, one house' would be a disadvantage. I agree. That finding can only lead to the dismissal of this application."

In Re Sheehy applications were made to modify restrictions which provided that no future building should be permitted on two plots on an estate. The objectors were the trustees of part of the estate, most of it having been sold with the benefit of the restrictions. The Tribunal (HH Judge Marder QC) dismissed the application saying (page 107):-

"I am satisfied that the present restrictions in preventing the building of houses on the garden land of 9 to 11 Albert Road do secure to the trustees a practical benefit of substantial advantage to them. The development of houses on back garden land would represent a departure from the standards so far maintained by the trustees, and would also weaken the confidence of residents on the estate deriving title from the trustees, in the ability of the trustees to protect their interest by the maintenance of the scheme of covenants."

In Re Chandler application was made to modify convenants which restricted the use of a large house to a single private residence to enable conversion into three dwellings and the building of a house in the grounds. The estate had been developed under a system of covenants not constituting a scheme of development. The application was refused. The member (J P C Done) said (page 517):-

"The objectors are clearly entitled to ask for the enforcement of restrictions calculated to retain the status quo, and any action which would facilitate a change would deprive them of something which they value. In this connection, the injury envisaged in the section is not limited by statute to the effect on market value; it may be related for something entirely personal and, even if a general relaxation of the restrictions would in fact facilitate the sale of properties and enhance market values, if the personal convictions and wishes of the objectors are seen to be sincere and well founded, and their objections not tinged with ulterior motive, to reject them would be injurious within the terms of the section.

I cannot in this case find anything unacceptable in the objectors' evidence. Any change would affect the character of the neighbourhood, they would resent it, and would be injured if it were allowed. It seems to me that the practical benefit which is secured to them is the power left in their hands to scrutinise and if necessary veto any proposals tending to alter the character of the neighbourhood and I do not think the Tribunal's discretion extends to depriving them of that measure of control when objections to a proposal are practically unanimous and appear to be reasonable."

In my view the maintenance of a density of one house per plot in Seymour Road and Sheppards Close is a substantial practical benefit secured to the objectors by the restriction. By enforcing it they can maintain the status quo, maintain the open character of the area provided by the long gardens, prevent intrusive and unsuitable backland development and generally veto any development in breach of the restriction. These are substantial practical benefits which would be lost by the modification of the restriction. These benefits are closely linked to the thin end of the wedge argument, which I now consider.

The objectors say that the modification of the restriction would set an undesirable precedent leading to further intrusive development, either the extension of Fontmell Close or other backland development.

The position adopted by this Tribunal as to the thin end of the wedge argument was explained in Re Snaith and Dolding. The former President (HH Judge Marder QC) said (page 118):-

"The position of the Tribunal is clear. Any application under section 84(1) must be determined upon the facts and merits of the particular case, and the Tribunal is unable to bind itself to a particular course of action in the future in a case which is not before it: see Re Ghey and Galton and Re Farmiloe. It is however legitimate in considering a particular application to have regard to the scheme of covenants as a whole and to assess the importance to the beneficiaries of maintaining the integrity of the scheme. The Tribunal has frequently adopted this approach. See for example Re Henman; Re Saviker (No.2); and Re Sheehy.

Insofar as this application would have the effect if granted of a opening a breach in a carefully maintained and outstandingly successful scheme of development, to grant the application would in my view deprive the objectors of a substantial practical benefit, namely the assurance of the integrity of the building scheme. Furthermore I see the force of the argument that erection of this house could materially alter the context in which possible future applications would be considered."