England and Wales Lands Tribunal

[2000] EWLands LP_37_99 (16 June 2000)

LP/37/99

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT - prohibition against building in excess of 2 metres in height - application to discharge - whether some proposed user in the absence of development requiring discharge -whether objector will be injured by discharge - application dismissed - Law of Property Act 1925, s 84 (1)(aa) and (c)

IN THE MATTER of an APPLICATION under

SECTION 84 OF The LAW of PROPERTY ACT 1925

BY ANTHONY RONALD PEACOCK

LESLEY SUSAN BARTOLOMEO Applicants

RE: The Cottage, Poland Lane, Odiham, Hampshire

Before: P H CLARKE FRICS

Sitting in public at 48/49 Chancery Lane, London WC2 1JR on 8 May 2000

The following cases are referred to in the decision:-

Re Bass Ltd (1973) 26 P & CR 156

Re Lloyds Bank Ltd (1976) 35 P & CR 128

Re Glevum Estates (Western Counties) (LP/53/72)

Re British Railways Board (LP/14/72)

Re Martin (1989) 57 P & CR 119

Re Hornsby (1969) 20 P & CR 495

Ridley v. Taylor [1965] 1 WLR 611

Anthony Peacock in person for both applicants

Peter Ingram in person


 


DECISION OF THE LANDS TRIBUNAL

1. This is an application under section 84 of the Law of Property Act 1925 by Anthony Ronald Peacock and Lesley Susan Bartolomeo ("the applicants") for an order discharging a restrictive covenant affecting freehold land at The Cottage, Poland Lane, Odiham, Hampshire ("the application land"). The sole objector, Peter David Ingram, is the owner of an adjoining house, Wheelwrights, Poland Lane.
2. Mr Peacock appeared in person for the applicants. He called John Alexander Ash FRICS of Carson and Co, surveyors of Camberley, Surrey and put in affidavits by Ronald Watts and Michael and Helen Collier. Mr Ingram appeared in person

Facts

3. The parties have prepared a brief statement of agreed facts and from this statement and the evidence I find the following facts.
4. About one mile to the north of the town of Odiham is a small group of dwellings at a cross-roads on the edge of Odiham Common. This settlement is known as Whitehall and contains attractive old houses and cottages in pleasant countryside. Poland Land runs approximately north-west to south-east to join Odiham Road at the cross-roads. A short distance to the west of the cross-roads and on the south side of Poland Lane stands The Cottage, an attractive two-storey detached cottage, probably built in the early 19th century with later additions. At the rear and to the side of the cottage is a garden which comprises the application land which has an area of 0.367 acre and is mainly lawn with a few trees. The only buildings on it are a former stable, of basic construction and now in need of repair, and the new garages which I refer to below. There is no physical boundary between the small area of land surrounding the cottage and the application land, which forms the rear garden. The cottage and the application land are contiguous and comprise one property.
5. A short distance to the east of The Cottage, and separated from this property by Wheelwrights Cottage, stand a house and large rear garden, Wheelwrights, owned by Mr Ingram, the objector to this application. This property is also on the south side of Poland Lane. Wheelwrights Cottage, which separates The Cottage and Wheelwrights, is on a narrow deep plot of land and Mr Ingram's property is close to the application land.
6. In September 1998 the applicants purchased the freehold of the The Cottage, including the application land, subject to a restrictive covenant ("the restriction") contained in a conveyance of the application land dated 19 January 1982 between Mr Ingram (vendor), Nationwide Building Society and Michael and Helen Collier (purchasers). Under this restriction the purchasers, and those deriving title under them, covenanted that they :

"will not erect or permit to be erected any structure of any type on the land hereby conveyed in excess of two metres in height."

7. This is the restriction which the applicants seek to discharge. Mr Ingram retains the benefit of the restriction.
8. On 5 January 1999 conditional planning permission was granted by Hart District Council for the "demolition of existing garage and replacement, with improved access and parking" and "two-storey extension to cottage" at The Cottage, Poland Lane. On 29 April 1999 the Council accepted as an amendment to this planning permission the revised development shown on drawing number 99-104-05, allowing two new barn style garages to be built attached to the existing store.
9. The two storey extension to The Cottage will not extend on to the application land and will not be in breach of the restriction. The revised layout of the garages has been built. It extends onto the application land and is in breach of the restriction.
10. On 15 November 1999 the applicants applied to this Tribunal for an order discharging the restriction in its entirety over the whole of the application land. The application is made under section 84(1)(aa) and (c) of the Law of Property Act 1925. Mr Ingram objected to this application on 3 January 2000. His objection is admitted.

DECISION

11. I have inspected the application land and the surrounding area.
12. An application under section 84 (1)(aa) must satisfy several conditions. These are usually expressed in the form of questions, all of which must be answered affirmatively if the application is to succeed (Re Bass).
13. The first two questions are whether there is some proposed user of the application land which is a reasonable user and which is impeded by the restriction? The application is for the discharge of the restriction over the whole of the application land. Planning permission has been granted for the building of garages (now built) which it is agreed extend onto the application land and are in breach of the restriction. The evidence of Mr Ash is that the new garage extension encroaches on the application land by 6 metres. The application states that a discharge of the restriction "in its entirety" is sought, "the affect (sic) of this will be to remove this restriction over the property and so allow completion of the renovations and extensions already started." Mr Peacock told me that he has no proposals to build on the application land, other than the garages, but it would be easier to remove the restriction now. When the applicants bought The Cottage they were unaware of the restriction. He may wish to build an extension or a conservatory on the application land.
14. The applicants are not seeking modification or a partial discharge of the restriction to allow the retention of the garages but are seeking the complete discharge of the restriction to allow possible future building on the application land. Their application under paragraph (aa) immediately runs into difficulties. If the application had been for the modification or discharge of the restriction to allow the retention of the garages I would have found that this to be a reasonable user of the application land which is impeded by the restriction. This user affects only a very small part of that land. I cannot make such a finding where the proposed user of the whole of the application land is unknown. The facts of this case are similar to those in Re Lloyds Bank Ltd.
15. In that case the application land was part of the curtilage of a bungalow, most of which was subject to a restriction which prevented the erection of any house or permanent building. The bungalow had been built on frontage land, which was not subject to the restriction, but encroached onto the rear land which was subject to the restriction. This breach was not noticed until the current application was made, many years later. The application to this Tribunal was for the discharge of the restriction to enable a house to be built, but the applicants had no precise project in mind and had not obtained planning permission. The member (J D Russell-Davis FRICS) said (page 130)..-

"Under paragraph (aa), in the absence of a specific proposal for the development of the [application land], it cannot be said that the continued existence of the restrictions would impede some reasonable user of the [application land] for public or private purposes. In this connection I cannot do better than to quote from "Restrictive Covenants Affecting Freehold Land" by Preston and Newsom (5th ed.), which, in discussing the change brought about by the 1969 Act, says at p.207:

'The substitution of "some" reasonable user for "the" reasonable user makes a fundamental change. All that an applicant now has to show, so far as this part of the legislation is concerned, is that he has a definite project, that it is a reasonable one and that the unmodified restriction impedes it. There can be few applicants who would fail to do that...'

In the present case the applicants have failed to show a definite, or, indeed, any project. This point was forcibly adumbrated in the Lands Tribunal decision in Re Glevum Estates (Western Counties) Application, per the learned President.

'Perhaps I should add that as a general proposition any applicant seeking to rely upon that paragraph [(aa)] should be armed not only with the planning permission but also with detailed plans of a kind which could be incorporated in an order. What the applicants are in effect asking for is a blank cheque, which I should not have been disposed to grant in any event.'

I adopt that decision."

16. In Re British Railways Board the Tribunal (J. R. Laird FRICS) said that, when an application is made under paragraph (aa), it will be difficult for the Tribunal to decide that some reasonable user of the Land is impeded unless the applicant has shown with some certainty what he actually proposes should be done with the land (see Preston and Newsom, "Restrictive Covenants Affecting Freehold Land" (9th edition) paragraph 15-04).
17. In this current application, and in the context of an application to discharge the restriction in its entirety over the whole of the land, there is no proposed user of the application land which is impeded by the restriction. If application had been made to modify the restriction to allow the retention of the garages then this would have satisfied the first questions under paragraph (aa). This is, however, not the application before me and leave was not sought to amend the application. Mr Peacock made it clear at the hearing that he is seeking the complete discharge of the restriction to remove this fetter on possible future building on the land. The application under paragraph (aa) fails at the outset and it is unnecessary for me to deal with the other requirements of this paragraph.
18. I turn now to the application under section 84(1)(c). To succeed the applicants must show that the proposed discharge of the restriction will not injure Mr Ingram. Mr Peacock said that this is an isolated restriction, not part of a scheme of covenants, and its discharge will not injure Mr Ingram. Any development of the application land would require planning permission. Mr Ingram can therefore rely on the local authority to protect his position. This was supported by the evidence of Mr Ash. He said that the local planning authority would strongly resist any development which resulted in an intensification or alteration which was out of character with the existing buildings in Poland Lane. No substantial new development would be permitted on the application land. The only development likely to be granted planning permission would be replacement, renovation or extension of the existing dwelling. Additional development divorced form the cottage, which would significantly impair the view from Mr Ingram's windows, would not be permitted. The existing enlargement of the garages does not significantly impair the view from Wheelwrights or substantially diminish the limited benefit received by Mr Ingram from the restriction.
19. It is important to note that the emphasis in paragraph (c) is on the discharge of the restriction. The question is whether the discharge of the restriction over the whole of the application land will injure Mr Ingram? He has a valuable property right. He can veto any building on the application land above two metres in height. He can protect his adjoining house and garden from any development in breach of this restriction. Mr Peacock said that he would still be protected by planning control and Mr Ash said that unwelcome development would not be permitted on the application land.
20. I cannot agree that the removal of Mr Ingram's power to prevent building on the application land in excess of two metres in height, leaving him solely the protection of planning control, will not injure him. The control of development under a restrictive covenant and the control of development by the grant of planning permission are two different regimes, two systems of control, each with a separate existence (Re Martin). It is a truism that planning control is usually much less severe than control by restrictive covenant. Under planning control Mr Ingram would have little or no say in the grant of planning permission by the local authority, compared to his absolute right to veto any development on the application land in breach of the restriction. In Re Hornsby the Tribunal (J.S.Daniel QC) pointed out (at page 502) that, on an estate in Wimbledon, the restrictions:-

"...are in my view still of great advantage to those persons entitled to their benefit. Vigilant insistence on the covenants has preserved the character and amenity of the estate to a standard which planning control would lamentably have failed to achieve..."

21. In Ridley v Taylor Russell LJ said (page 622) ..-

"My own view of paragraph (c) is that it is, so to speak, a long stop against vexatious objections to extended user, ...The view expressed by the late Mr W.A. Jolly in his work on Restrictive Covenants Affecting Land (2nd ed, p.120) was that paragraph (c) was intended by its reference to injury to modify the extent to which, in its ordinary jurisdiction, the Court would grant injunctions. In that jurisdiction injunctions would be granted even if the plaintiff could not be personally interested in enforcement save out of a sense of duty or moral obligation to others; under paragraph (c) the objection must be related to his own proprietary interest. Both this passage in Jolly and the corresponding passage in Preston and Newsom suggest that paragraph (c) may be designed to cover the case of the, proprietorially speaking, frivolous objection. For my part I would subscribe to that view."

22. Following that statement, I look at Mr Ingram's objection and ask: is it, proprietorially speaking, frivolous? is it vexatious? (see Preston and Newsom, "Restrictive Covenants Affecting Freehold Land" (9th ed.), (12-68)). I have no hesitation in answering both questions in the negative. Mr Ingram imposed the restriction on the application land in 1982 to protect his adjoining house and garden. He is justified in objecting to the complete removal of this protection. He would be injured by the discharge of the restriction. He would not have the same degree of protection under planning control administered by a remote and anonymous local authority. He would be injured by the discharge of the restriction. The application fails under section 84(1)(c).
23. This application fails on both grounds. I have no jurisdiction to grant the application and it is refused. I would add that, even if I had found that I had jurisdiction, I would have exercised my discretion against the applicants and refused the application.
24. Mr Ingram asked me to order the removal of the garages which have been built in breach of the restriction. This Tribunal has no power to make such an order. This is a matter for the courts. It leaves, however, an unsatisfactory position with regard to those garages. The applicants have three courses of action open to them: to remove the offending garages on the application land, to seek Mr Ingram's agreement to their retention, to make a further application to this Tribunal for the modification of the restriction to permit their retention.
25. This decision so far concludes my determination of the substantive issues in this case. It will take effect as a decision when the question of costs is decided and at that point, but not before, the provisions relating to the right of appeal will come into operation. The parties are invited to make submissions as to the costs of this application and a letter accompanying this decision sets out the procedure for submissions in writing.

DATED

(Signed: P H Clarke)

ADDENDUM

26. I have received written representations on costs. Mr Ingram seeks his costs in the sum of £890 but without any proof of financial loss or disbursements. The applicants dispute the amounts of the two items for loss of wages.
27. This application has failed and Mr Ingram must receive his costs. The amounts claimed are, however, excessive and exceed the costs recoverable by a litigant in person. I assess the costs payable to Mr Ingram in the lump sum of £150. I order the applicants to pay Mr Ingram's costs in the sum of £150.

DATED

(Signed: P H Clarke)