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[2001] EWLands LP_18_2000 (10 May 2001)

LP/18/2000

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – restriction to single storey dwelling – application to remove this limitation – proposed house – applicant the original covenantor – effect of possible refusal of planning permission for bungalow – changes in neighbourhood and property – benefits secured to objector – public interest – whether agreement to modify – injury to objector – application refused – applicant's application to adjourn refused – Law of Property Act 1925, s.84(1)(a)(aa)(b)(c)(1A)(1B).

IN THE MATTER of an APPLICATION under SECTION 84(1) of the

LAW OF PROPERTY ACT 1925

by

ROY STEPHEN FARROW

Re: Land, St Austins Grove,

Sheringham,

Norfolk

Before: P H Clarke FRICS

Sitting at Cromer on 27 February 2001

The following cases are referred to in this decision:-

Re Robinson & O'Connor (1964) 16 P & CR 106

Ridley v Taylor [1965] 1 WLR 611

Jones v Rhys Jones (1974) 30 P & CR 451

Re Rudkin (1964) 16 P & CR 75

Re Wynyates Smith Ltd (1963) 15 P & CR 85

Re Beech (1990) 59 P & CR 502

Re Cartner (1999) (unreported) (LP/19/98)

Cresswell v Proctor [1968] 1 WLR 906

Re Truman, Hanbury, Buxton & Co Ltd [1956] 1 QB 261

Re Girls Day School Trust (1872) (2000) (unreported) (LP/19/99)

Re Abbey Homesteads (Developments) Ltd (1987) 53 P & CR 1

Re Martin (1988) 57 P & CR 119

Re Bass Ltd (1973) 26 P & CR 156

Gilbert v Spoor [1983] 1 Ch 27

Re Chandler (1958) 9 P & CR 512

Re North (1998) 75 P & CR 117

Re Stevens (1962) 14 P & CR 59

Stannard v Issa [1987] AC 175

Re Diggens, King & Cox (2000) (unreported) (LP/27/99 & LP/25/2000)

Re Brierfield (1976) 35 P & CR 124

Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India [1990]

1 Lloyds LR 391

Mr Richard G Hunt, solicitor, Hunt & Co solicitors of Cromer, for the applicant on an application to adjourn

Mr Roy Stephen Farrow, the applicant, in person

Mr Philip Bartle instructed by Hayes & Storr, solicitors of Fakenham, for the objector, Mrs Mary Blois-Brooke.

DECISION OF THE LANDS TRIBUNAL

This is an application under section 84 of the Law of Property Act 1925 by the owner of a building plot to modify a restrictive covenant which limits development to a single storey dwelling and provides for the approval of plans and elevations. The sole objector is the owner of an adjoining house with the benefit of the covenant.

Mr Richard G Hunt, solicitor and partner of Hunt & Co, appeared for the applicant for the purpose of applying for an adjournment. Mr Roy Stephen Farrow, the applicant, appeared in person at the following substantive hearing and gave evidence. He called Mr Samuel Jonathan Lawson Whatley BA, solicitor and partner of Hunt & Co, practising at Sheringham as Walter Smith and Co (Hunt & Co and Walter Smith and Co are now the same firm), and Mr Kenneth John Woodrow FRICS, a director of Woodrows, surveyors and estate agents, with offices in Cromer, Sheringham and North Walsham.

Mr Philip Bartle of counsel appeared for the objector, Mrs Mary Blois-Brooke. He called Mr Trefor Jackson FRICS, a partner of Brown and Co, surveyors and land agents, with offices at Fakenham and elsewhere, and Mrs Blois-Brooke.

FACTS

The parties have prepared a statement of agreed facts and from this statement and the evidence I find the following facts.

The land which is the subject of this application is on the St Austins Estate on the eastern outskirts of Sheringham on the north Norfolk coast. The application land is on the north side of St Austins Grove and was formerly part of the garden of St Austins House. The plot is 57 feet wide and 164 feet deep and has a north to south slope to the frontage to St Austins Grove. At the rear, close to St Austins House and housing in Curtis Lane, is a higher plateau. The land is now vacant and has an unsightly appearance. Some excavation has been undertaken; a caravan is stationed on the land.

Immediately adjoining the application land to the west is St Austins House, a large detached house and garden on the corner of Curtis Lane and St Austins Grove. It was built in 1912, one of the early houses on the St Austins Estate, which was largely developed in the inter-war years as an exclusive estate of "summer homes". The house is sited at the northern, or rear, end of the plot, on a plateau of higher ground with an entrance from Curtis Lane. It has accommodation on ground, first and second floors. The house includes a flat on the first floor, occupied by Mrs Blois-Brooke's daughter and family when they visit this country, and a ground floor annexe for visitors. The eastern flank wall of the house is close to the application land and has windows which overlook the land on all floors. On the boundary between St Austins House and the application land is a close-boarded fence, 1.8 metres in height, and a beech hedge. Mr M S Blois-Brooke bought St Austins House in April 1959 and transferred it to his wife, Mrs Mary Blois-Brooke, in August 1992. Mr Blois-Brooke died in November 1995; Mrs Blois-Brooke continues to live in the house. The parties agree that the open market value of St Austins House is about £200,000.

By a conveyance dated 27 April 1988 Mr Blois-Brooke conveyed the freehold of the application land to Mr Roy Stephen Farrow (the applicant), for a consideration of £35,000. Clause 2 of the conveyance provides that:-

"FOR the benefit and protection of the property retained by the Vendor … known as St Austins House … and each and every part thereof the Purchaser hereby covenants with the Vendor that he and his successors in title will at all times hereafter observe and perform the following covenants and stipulations:-

(a) …

(b) Before erecting any building (which shall be single storey only) on the property hereby conveyed to submit the plans and elevations thereof to the Vendor for his approval.

(c) To use any buildings erected on the said land only as a private dwellinghouse with the usual outbuildings in connection with such use and not so as to cause any nuisance damage or annoyance to the Vendors or their successors in title".

This is the restrictive covenant which Mr Farrow seeks to modify and will be referred to in this decision as "the restriction". Following the transfer of the freehold of St Austins House to Mrs M Blois-Brooke in August 1992, she became the successor in title to Mr Blois-Brooke and it is agreed that she can enforce the restriction. Prior to the sale of the application land to Mr Farrow he said that it was his intention to build a bungalow on the land for his mother. She died before the purchase was completed.

On 23 May 1986, following an application by Mr Blois-Brooke, outline planning permission was granted by North Norfolk District Council for the "erection of one two-bedroom domestic dwelling preferably a bungalow" on the application land.

On 15 May 1989 Mr Farrow applied for planning permission for the erection of a detached bungalow and garage on the application land. On 31 May 1989 Sheringham Town Council objected on the grounds that it would be out of keeping with the surrounding residential properties. On 31 August 1989 the application was recommended for approval but the Development Committee of North Norfolk District Council, noting the objection of the Town Council, deferred a decision. This was to enable the chief planning officer to negotiate a modification to produce a substantial dwelling with accommodation at first floor level. Mr Farrow was invited to submit amended drawings. He withdrew his application on 16 January 1990.

On 18 October 1999 North Norfolk District Council granted conditional planning permission on the application of Mr and Mrs Farrow for the "erection of two-storey dwelling and garage" on the application land ("the proposed house"). Mrs Blois-Brooke objected to this application. The accommodation comprises: entrance hall, cloakroom, sitting room, dining room, family room, kitchen, utility room and pantry on the ground floor, and five bedrooms (one en-suite) and bathroom on the first floor. A detached garage is sited close to the entrance from St Austins Grove. The house is to be located on the raised plateau at the rear of the application land close to St Austins House. One of the conditions attached to this permission prevents the making of additional openings to either side elevation without the prior grant of planning permission. The approved plans show three windows at ground floor level in the west elevation looking towards St Austins House (in the utility room, pantry and family room respectively) and none at first floor level. The parties agree that it will not be possible to overlook St Austins House from these windows. They further agree that the proposed house will be built approximately 1.5 metres below the level of St Austins House and this will result in the top ridge of the house being below the top ridge of St Austins House, approximately on a level with the attic window (second floor) in the east wall of St Austins House.

On 2 February 2000 Mr Farrow applied to this Tribunal under section 84(1)(a),(aa),(b) and (c) of the Law of Property Act 1925 ("the 1925 Act") for the modification of the restriction to provide for the submission to, and approval by, the owner of St Austins House of plans and elevations of any building to be erected on the application land (such approval not be unreasonably withheld) and for the omission from the restriction of the limitation to a single storey building. Mrs Blois-Brooke objected on 14 June 2000. Her objection is admitted. Other objections were made but were not admitted.

INSPECTION

I made an accompanied inspection of the application land, St Austins House and the neighbourhood on 28 February 2000. I viewed the application land from the interior and garden of St Austins House.

ADJOURNMENT

Before the start of the substantive hearing Mr Hunt, on behalf of Mr Farrow, applied for an adjournment of the hearing to a later date. His submissions were brief and unsupported by documentary or other evidence. On the previous day he had informed the Tribunal and the objector's solicitors of his intention to apply for an adjournment. The application was made on two grounds. First, that Mr Hunt suffered an accident to his foot two weeks ago; he saw his doctor yesterday afternoon and has been given an appointment for admission to hospital that morning at 11.00 am. Second, that he intended to instruct counsel to appear on behalf of Mr Farrow; the brief was sent to her home address by special delivery on Friday 23 February; it went astray in the post; this was discovered on Monday 26 February, the day before the hearing; counsel declined to appear on behalf of Mr Farrow.

Mr Bartle, for Mrs Blois-Brooke, strongly opposed the application. He put before me a bundle of correspondence and attendance notes covering the period 16 January to 26 February last, which he said showed that Mr Hunt had not been too ill to attend to his practice but had neglected to prepare his case in this application. Mr Bartle gave me a list of seven documents which he said should have been provided in support of the application and a schedule of costs on an indemnity basis which he would seek if the application is granted.

He said that the proposed modification of the restriction has been active since 1997. This application was made to the Lands Tribunal a year ago. Mrs Blois-Brooke is a widow, aged 76, who strongly opposes the proposal to build a house on the adjoining land. The objector's case is ready, she wishes the application to be decided to remove the worry and cost. It is entirely Mr Hunt's fault that counsel was instructed at such a late stage. He should have checked that the brief had been delivered on the following Saturday, not the Monday. There is no evidence to support Mr Hunt's application on medical grounds.

I should balance the positions of the parties. The application was made by Mr Farrow; Mrs Blois-Brooke is an unwilling participant seeking to protect her property rights. The balance of inconvenience is in her favour. An adjournment would cause her injustice.

Decision – I refused the application to adjourn the hearing to a later date. I adjourned for 15 minutes to allow Mr Hunt to contact his office, Mr Farrow and his witnesses (none of whom were in court when the application for an adjournment was made). I was informed that Mr Farrow would appear in person. I granted a further adjournment to allow him time to attend. He attended and presented his case. Two out of his other three witnesses were able to attend (Mr Whatley and Mr Woodrow).

My reasons for the refusal of this application are as follows. My starting point is the Lands Tribunal Practice Direction 2/97, section 9 (postponements). This is as follows:-

"It is emphasised that the hearing of the Lands Tribunal once notified takes priority over other engagements except hearings before Superior Courts or force majeure (such as sudden illness, etc). Once the date of hearing has been fixed and notified, the Tribunal will not permit postponement or adjournments, with or without consent of other parties, unless very good reason is shown upon application to the Member or to the Registrar, and a new date for hearing is agreed or fixed.

This policy is necessary both in the interest of other litigants waiting for their cases to be heard, and to ensure efficient use of the Tribunal's resources. Thus, the serious illness of an essential witness, properly supported by medical evidence, would no doubt be an acceptable reason for postponement, whereas the vague 'unavailability' of advocate or witness would not be acceptable without a clear explanation of that person's other commitment and why it should have priority over the Tribunal hearing. If a postponement is to be sought, this must be done as quickly as possible after the notification; the Tribunal is even less willing to grant postponements nearer the hearing date."

Mr Hunt's application was brief and unsupported. I was left with the impression, supported by the evidence put before me by Mr Bartle and other evidence received later in the hearing, that the real reason for the application was that the applicant's case was not ready. This may have been due to Mr Hunt's accident (although no evidence was tendered to support this) but it was clear that Mr Hunt had not attempted to make other arrangements for representation at the hearing, except for a very late and, as it transpired, abortive attempt to instruct counsel. Mr Hunt may have thought that an adjournment would be a formality. It is surprising that Mr Farrow was not in court, nor his witnesses. Mr Hunt had made no contingency plans for the refusal of the application. Later in the hearing I received unexpected confirmation of this lack of readiness. I was told by Mr Woodrow, the expert witness for Mr Farrow, that he was not informed of this hearing until yesterday (26 February). He had a prior appointment in the afternoon. The hearing notices were sent to the solicitors to the parties on 16 January 2001. One of Mr Farrow's witnesses, Mr Hedges, did not attend any part of the hearing. Mr Hunt is not a sole practitioner, where sudden illness may have caused problems. He has a partner, Mr Whatley, who attended part of this hearing, gave evidence and attended my inspection. He had knowledge of the case and, in my view, could have taken over the role of advocate on Mr Hunt's sudden admission to hospital.

I agree with Mr Bartle that I should balance the injustice caused to Mrs Blois-Brooke by granting an adjournment with any injustice to Mr Farrow by a refusal to adjourn. I bear in mind that Mrs Blois-Brooke is an unwilling party to this litigation. She wishes to stand by the restriction entered into with Mr Farrow 13 years ago. He wishes to change the restriction and take away some of her property rights to his advantage. He has, of course, the right to apply to this Tribunal for modification but he also has an obligation to pursue the application in an expeditious manner. The originating application was made exactly one year ago: the hearing is certainly not premature. An unusual feature of this case is that it is the objector and her advisers who have made the running. They were ready to proceed at the hearing. In the weeks before the hearing the solicitors to Mrs Blois-Brooke were pressing Mr Hunt on various matters and were clearly anxious to ensure the efficient conduct of the hearing. Their documentation is excellent, particularly Mr Bartle's bundle containing his outline submissions and authorities, and their own trial bundle, produced due to Mr Hunt's reluctance to do so. It would be unfortunate if these careful preparations ended in an adjournment. In my view there would have been inconvenience and injustice to Mrs Blois-Brooke if I had granted an adjournment.

On the other hand, I cannot envisage material injustice to Mr Farrow by a refusal to adjourn. This is a straight forward application without any questions of law or complex issues of fact. All the evidence is in writing, expert and factual. Mr Farrow is a part-time developer, with a knowledge of property, who has taken an active part in this application, particularly the negotiations with Mrs Blois-Brooke. Expert evidence was given on his behalf. An important matter in reaching my decision is my inspection. For these reasons I felt that the interest of Mr Farrow in an adjournment should be given less weight than the interest of Mrs Blois-Brooke in proceeding with the hearing.

If I had been satisfied that Mr Farrow's case was ready, all witnesses available, and there was a contingency plan (albeit not as satisfactory as representation by Mr Hunt) but that Mr Hunt had been suddenly unable to appear due to a medical emergency, which was fully explained and supported by documentary evidence, then I would have granted an adjournment. This did not occur, however, and I was left with the impression that, although Mr Hunt's accident, subsequent ill-health and admission to hospital were factors to be considered, the real reason for the application was that Mr Farrow's case was not yet ready. This is not a good reason for an adjournment.

APPLICATION UNDER SECTION 84(1) OF 1925 ACT

Original applicant

Before considering the requirements of section 84(1) of the 1925 Act I refer to a matter raised by Mr Bartle which I should take into account under section 84(1B). This is the fact that Mr Farrow is the original covenantor.

Mr Bartle said that when an applicant is the original covenantor, then the Tribunal should require a higher burden of proof (Re Robinson and O'Connor at page 111). I agree.

It is established that an original covenantor is entitled to apply to this Tribunal for relief under section 84(1) of the 1925 Act (Ridley v Taylor). However, it would appear that, where the applicant is the original covenantor, this is a material fact and should be taken into account by the Tribunal. In Ridley Harman LJ said (page 618B):-

"… I do not feel able to say that such a covenant cannot be modified under the section, although it seems to me that the court should be slow to relieve an applicant of covenants which he himself has entered into."

However, in the same case, in relation to the exercise of discretion by this Tribunal, Russell LJ said (page 623A):-

"I do not for myself think that the particular situation of the applicant, as having not very long since struck a bargain inconsistent with this particular outcome, is a factor in the exercise of discretion. I do not think that the personality of the applicant or his past behaviour is relevant to the exercise of the discretion. I refer again to the fact that tomorrow an assign may make the same application. I think that the decision (including the exercise of discretion) must be related to the property and its history as such."

In Ridley the applicant was a tenant seeking to modify a restriction in his lease. Diplock LJ concurred in both judgments. In Jones v Rhys Jones Stephenson LJ suggested that this apparent conflict between the judgments of Harman and Russell LJJ "may be more apparent than real" (page 458).

The approach of this Tribunal has been to impose a higher burden of proof on an applicant who is the original covenantor. In Re Rudkin the member (Erskine Symes QC) said (page 79):-

"The Tribunal is I think justified in requiring from an original covenantor a somewhat higher proof of justification for the modification sought."

This approach can be seen in Re Wynyates Smith Ltd, Re Robinson and O'Connor, Re Beech and Re Cartner. I also bear in mind the observation of Danckwerts LJ in Cresswell v Proctor (page 914G) that: "The sanctity of contract must have some relevance."

My conclusion on this matter is therefore that, although it is open to Mr Farrow to apply to this Tribunal for the modification of the restriction, as he is the original covenator there is a greater burden of proof on him to show that the requirements of section 84(1) are satisfied.

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

In order to succeed under paragraph (a) of subsection (1) of section 84 of the 1925 Act Mr Farrow must show that: (i) there have been material changes in the character of the application land or the neighbourhood, or (ii) that there are other material circumstances, and (iii) by reason of those changes or circumstances, the restriction ought to be deemed obsolete, i.e. that it can no longer serve its original purpose (Re Truman, Hanbury, Buxton and Co Ltd at page 272).

I heard no evidence on these matters and the originating application is silent on this ground. Mr Farrow said that he has been forced to make this application by the local authority's negative response to his application for planning permission to erect a bungalow. He cannot now develop the land except by the erection of a two-storey house. I observe that he did not make this submission specifically in relation to section 84(1)(a) but it can conveniently be dealt with under this head. Mr Bartle submitted that this part of the application is misconceived and must fail. I agree.

From my inspection I think it unlikely that there have been any material changes in the neighbourhood since the restriction was imposed in 1988. The character of the application land changed from garden to building plot when it was severed from St Austins House on the sale to Mr Farrow, but it is still a building plot.

Part of Mr Farrow's case is that planning permission would be refused for a bungalow on the application land and therefore the restriction should be modified to allow the building of a house, for which permission has been granted. I will consider whether the possible refusal of planning permission for a bungalow could be a material circumstance within section 84(1)(a), making the restriction obsolete. First, I should say that I am not persuaded that it is certain that planning permission would be refused for a bungalow. Permission was granted in 1986 for a bungalow and Mr Farrow's application in May 1989 was recommended for approval and may have been granted if Mr Farrow had stood firm and not withdrawn it. Even if planning permission for a bungalow is refused by the local planning authority permission might be granted on appeal. The parties have agreed that there are two nearby bungalows, at 2 St Austins Grove and 3 Curtis Lane. However, even on the assumption that the application land could not be developed by the erection of a bungalow, I am not satisfied that this is a circumstance which makes the restriction obsolete (or is a reason for modification under section 84(1)). Mr Bartle referred to my decision in Re Girls Day School Trust (1872). There I discussed the scope of "other circumstances" in section 84(1)(a) (paragraph 32). Having regard to the decisions of the Court of Appeal in Re Abbey Homesteads (Developments) Ltd and Re Martin I concluded that the expression "other circumstances" in section 84(1)(a) is restricted to other circumstances regarding the property or the neighbourhood and did not extend to the grant of planning permission, a matter to be taken into account when considering an application under section 84(1)(aa) and (1A) or when exercising discretion after the question of jurisdiction has been determined. I said that the grant of planning permission in itself does not make a restriction obsolete. I think it follows that the refusal, or possible refusal, of planning permission also does not make a restriction obsolete. I do not think that Mr Farrow can maintain that the restriction should be modified under section 84(1)(a), or at all, because planning permission would not, or might not, be granted for a bungalow, the permitted development under the restriction. This matter appeared to be the main reason put forward by Mr Farrow in support of his application for modification of the restriction.

The original purpose of the restriction was to limit any building erected on the application land to a single storey private dwellinghouse and to give the owner of St Austins House the right to approve plans and elevations. This purpose can still be achieved by the restriction and is not therefore obsolete. The application fails under section 84(1)(a) of the 1925 Act.

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

The issues under this paragraph can be expressed as a series of questions (Re Bass Ltd). It is agreed that the user of the application land for the erection of the proposed house is a reasonable user of the land which is impeded by the restriction. The remaining questions are as follows. First, whether the restriction, in impeding the reasonable user of the application land by the erection of a house, secures any practical benefits to Mrs Blois-Brooke which are of substantial value or advantage to her? Second, whether the restriction, in impeding the proposed user of the application land by the erection of a house, is contrary to the public interest? Third, if either of these questions is answered affirmatively, whether money would be adequate compensation to Mrs Blois-Brooke for any loss or disadvantage from the modification of the restriction and, if so, the amount?

I now consider the first question (practical benefits).

Applicant's case

Mr Woodrow said that it is likely that Mr and Mrs Blois-Brooke envisaged that the building to be constructed on the application land would be at a higher level. The bungalow under Mr Farrow's 1989 planning application was at a higher level. The proposed house would be built at a lower level. It will be lower than St Austins House. On the west wall of the original bungalow there would have been a glazed door and sliding patio doors. This bungalow would have been built on a terrace. These doors would have overlooked St Austins House. It is agreed that the windows in the west flank wall of the proposed house will not overlook St Austins House. Furthermore, the west wall of the bungalow would have been a gable wall with a maximum height of 5.2 metres compared to the same wall of the proposed house which will have a hipped roof and an eaves height of 3.2 metres and a 45 degree roof pitch.

Most properties in Curtis Lane and St Austins Grove are two-storey houses. There were objections in 1986 to the construction of a single storey dwelling on the application land. It is unlikely that planning permission would now be granted for such development.

Mr Woodrow said that the south and west walls of St Austins House are the "front elevations". The windows in the east gable wall overlooking the application land are secondary. The outlook from the ground floor windows is poor due the fence and beech hedge which forms the boundary between the application land and St Austins House. If the plateau on the application land is excavated then the privacy of St Austins House will not be significantly affected. No windows will overlook this property. There will be no detrimental effect on the value of St Austins House. The building of the proposed house on what is now an unkempt building plot may even increase that value.

It is incorrect to compare a two-bedroom bungalow with the proposed house. The restriction now permits a single storey dwelling: this could be a large bungalow with five bedrooms. Mr Woodrow's overall conclusion was that the proposed house would have no greater impact on St Austins House than a hypothetical bungalow which might be built on the application land under the existing restriction.

Mr Farrow gave evidence. He said that Mrs Blois Brooke's objection is not to a two storey dwelling at all, but simply to siting and size. He has done his level best to make the proposed house unobtrusive. The property has been recessed into the ground to reduce the height to that of a chalet type dwelling. Overlooking has been avoided by the design of the house. None of these matters has satisfied Mrs Blois-Brooke. The proposed house is not too big for the plot. By building vertically a larger area of garden has been preserved. Mrs Blois-Brooke has continually changed her objection to the proposed house. Mr Farrow said that all he wishes to do is to build a house which would suitable for his family. It is not obtrusive nor overdevelopment of the land. He does not wish to impinge on the privacy of Mrs Blois-Brooke.

Submissions – In the absence of submissions by Mr Farrow on this question I record the supporting reasons set out in the originating application. These are:-

(i) that restriction to the erection of a single storey dwelling does not secure any practical benefits of substantial value to Mrs Blois-Brooke;

(ii) it is unreasonable for Mrs Blois-Brooke not to modify the restriction thus preventing the use of the application land by Mr Farrow;

(iii) the local planning authority have indicated that a single storey dwelling is unsuitable for the application land.

Objectors' case

Mr Jackson said that the lowering of the base pad of the proposed house reduces the intrusion of privacy to St Austins House but not to any significant extent. A comparison of the drawing of the bungalow under 1989 planning application and the proposed house shows that the house is considerably larger and higher than the bungalow. The modification of the restriction would have a profound effect on the enjoyment of St Austins House and its value. The proposed bungalow would have less impact if it was redesigned. It has a single garage, the proposed house has a double garage and overall the house would be more visually intrusive. The house extends southwards beyond the building line. It would attract a family with perhaps two or three children with noise which was not intended when the restriction was imposed on the land. It was envisaged that a bungalow would be occupied by a retired couple, not a family. The proposed house will be visible from the eastern gable windows of St Austins House and other windows. The style of the proposed house is out of keeping with St Austins House and the surrounding area. A purchaser of St Austins House would offer 10% less than the agreed value of £200,000 due to the presence of a two-storey dwelling on the application land compared to a bungalow. The removal of the restriction would cause a loss of £20,000 on the sale of St Austins House. The marketability of the property would be blighted.

Mrs Blois-Brooke said that St Austins House originally included the application land. In 1986 planning permission was granted for the erection of a two-bedroom dwelling on this part of the property. Mr and Mrs Blois-Brooke thought that they might retire to this bungalow and sell St Austins House, which would not be affected by the bungalow. Subsequently they decided to sell the application land. It was sold to Mr Farrow with the planning permission. They did not want a property larger than a bungalow to be built on the adjoining land. This was to preserve their privacy, the value of St Austins House and the character of the area. The position of the bungalow on the application land was discussed with Mr Farrow and he would have understood that the building line was to be kept. The high plateau at the rear of the land would not have to be altered to accommodate a bungalow.

When the application land was sold to Mr Farrow it was thought that he wished to build a bungalow for his mother. They were unaware that he was in business as a property developer. An important feature of St Austins House is its garden and they did not wish it to be overlooked. A two-storey house and garage would spoil the view. It would also obscure the sunlight to the ground floor rooms. Mrs Blois-Brooke strongly opposes any reduction of the high plateau to accommodate the height of the proposed house. Substantial excavation would be necessary with risk of subsidence to St Austins House. A bungalow would not require this work. The sheer bulk of a two-storey house filling most of the width of the application land would be far more intrusive than a bungalow.

Mrs Blois-Brooke said that she is not unreasonable in wishing to uphold the restriction. A bungalow is well suited to the land: it will not interfere with the enjoyment of St Austins House and is in keeping with neighbouring properties. A large house next door will diminish the value of St Austins House. The land was sold to Mr Farrow with the benefit of planning permission for a bungalow and the restriction was imposed to ensure that only a bungalow would be built. Mr Blois-Brooke would probably not have sold the land to Mr Farrow if he had known what he intended to do.

Mr Bartle submitted that the phrase "any practical benefits of substantial value or advantage" should be broadly interpreted (Gilbert v Spoor). The benefits do not have to touch or concern the land. Benefits are not limited to the effect on market value (Re Chandler) nor are they to be assessed solely in financial terms (Re Bass Ltd). The preservation of the status quo can be a benefit (Re Chandler). A benefit can still be a benefit even though the effect of modification of a restriction is to increase the value of the objector's land (Re Chandler). Spaciousness, quiet, light, the open character of a neighbourhood, a view, lack of overlooking and peace and quiet can be practical benefits (Re North).

The restriction produces the following substantial benefits: the maintenance of the value of St Austins House, control over the size and position of the dwelling to be built on the application land, privacy, lack of overlooking, views, light, quiet and the preservation of the character of the neighbourhood. The proposed house is much larger than a bungalow and not identical in effect. The restriction, by impeding the proposed user of the application land, secures substantial practical benefits to Mrs Blois-Brooke.

Decision

The first question I am required to answer under section 84(1)(aa) is whether the restriction, in impeding the reasonable user of the application land by the erection of a house, secures practical benefits to Mrs Blois-Brooke which are of substantial value or advantage to her (section 84(1A)(a))?

Both parties have presented their cases by reference to the proposed house (for which planning permission has been granted) compared to the proposed bungalow. The modification of the restriction set out in the originating application, however, makes no reference to this particular house and therefore it seems to me that the above question should refer to a house (not limited to a single storey dwelling) rather than the proposed house. The existing restriction provides that: (i) any buildings erected on the application land shall be single storey only and used only as a private dwellinghouse with usual outbuildings; (ii) plans and elevations shall be submitted to Mrs Blois-Brooke for approval. The restriction as modified omits the limitation to a single storey building and qualifies the reference to the approval of drawings by the addition of a proviso that such approval will not be unreasonably withheld. The modification does not specifically refer to the proposed house (identified by the planning permission), a definite form of development for which planning permission has been granted. Both parties have, however, presented their cases in essentially the form of a comparison between (i) the bungalow for which Mr Farrow applied for planning permission in 1989, and (ii) the proposed house for which planning permission was granted in October 1999. It seems to me however, that, strictly speaking, the comparison should be between (i) a hypothetical single storey dwelling which could be built on the application land under the existing restriction, and (ii) a hypothetical dwelling not limited to single storey which could be built under the modified restriction. This view underlies my approach to this question although I recognise that a comparison between the bungalow and the house is helpful in illustrating the likely effect of modifying the restriction. This was the approach adopted by the parties.

The effects of the proposed modification are two-fold. First, there will be no limitation to single storey on the height of any dwelling to be built on the application land. Second, Mrs Blois-Brooke's approval of plans and elevations must not be unreasonably withheld. The second effect was not dealt with in the evidence and submissions and I do not consider it further. I must, however, consider what benefits flow from the restriction to a single storey dwelling on the application land.

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 8 to 10 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 but is merely a circumstance which I should take into account when exercising my jurisdiction under section 84. Similarly, I can take into account, but "merely as a circumstance", that planning permission might be refused for a bungalow on the reference land. Neither the actual grant of planning permission for the proposed house nor the possible refusal of planning permission for a bungalow are conclusive but merely background circumstances.

Against this background I consider whether the restriction secures to Mrs Blois-Brooke substantial practical benefits. The meaning of the phrase "practical benefits of substantial value or advantage" in section 84(1A)(a) was considered in Gilbert v Spoor. The words were given a wide meaning. Eveleigh LJ said (page 32E):-

"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 Ltd at page 162 and Re Stevens at page 62).

The 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? Mr Bartle in his submissions listed nine benefits which he claimed were secured by the restriction. Altering slightly his list I think that the matters that I should look at are: the character, height and size of the dwelling to be built on the application land, privacy or overlooking, protection of view or outlook, light and quiet. I consider each in turn.

I look first at the character and height of the dwelling proposed to be built on the application land. Essentially the comparison is between a single storey dwelling (permitted under the existing restriction) and a two-storey dwelling (which would be permitted under the modified restriction). This comparison can be made by comparing the bungalow proposed by Mr Farrow in 1989 with the proposed house. Mr Jackson has made this comparison. His figures were not agreed but Mr Woodrow gave no figures in rebuttal: his conclusion was that a general comparison between a hypothetical bungalow and the proposed house would show that the latter would have no greater impact than the bungalow. That is not Mr Jackson's conclusion. I reproduce his figures below:-

Floor area:	Bungalow Garage 1,650 sq ft 258 sq ft	House Garage 2,797 sq ft 420 sq ft
Height from ground level to ridge:	17.00ft	30.18ft
Roof depth from ridge to eaves vertically:	9.18ft	14.10ft
Front wall height:	7.82ft	16.08ft
Volume of property to roof height:	18,868 cu.ft.	44,975 cu.ft

These figures clearly show that the proposed house is much larger and higher than the proposed bungalow. It is true that a hypothetical bungalow, which could be built without modification of the restriction, might have been larger but Mrs Blois-Brooke would have control over size through approval of plans and elevations and there is a practical limitation on the amount of accommodation which could be built at one level, given the width of the plot. In general terms, a two-storey dwelling will be larger and higher than one with all the accommodation on the ground floor. This is graphically shown by Mr Jackson's figures and is seen again by a comparison of the drawings of the bungalow and the house. I am not persuaded by Mr Farrow's contention that a bungalow and his two-storey house would have the same effect on St Austins House.

I find that the restriction, by limiting the dwelling which can be built on the application land to single storey in height, confers a practical benefit on Mrs Blois-Brooke by reducing the size and height of the adjoining property and therefore the adverse effect on St Austins House.

The second benefit is privacy. The windows in the flank wall of the proposed house facing St Austins House are all at ground level and a condition attached to the planning permission prevents the making of additional openings without planning permission. The front windows in the proposed house at first floor level would allow the occupants to look into the garden of St Austins House. In my judgment the degree of actual overlooking would be small. However, privacy is not solely concerned with overlooking, it also refers to being private or secluded. Although the privacy and seclusion of St Austins House would to some extent be impaired by the erection of a bungalow on the application land, the construction of a two-storey house of much greater height and size would greatly increase the loss of privacy and seclusion. The effect of the existing restriction is to keep the loss of privacy to a low level due to the inherently smaller size and height of a bungalow. It is therefore a practical benefit. The modified restriction would greatly increase this loss of privacy and therefore the consequence of the modification would be detrimental to Mrs Blois-Brooke.

I consider next the view or outlook from St Austins House. A view can be a benefit of substantial value or advantage (Gilbert v Spoor). The benefit of a view may attach to a garden (Re North). The eastern flank wall of St Austins House has windows overlooking the application land at ground, first and second floor levels. Although there will be some impairment of these views by the building of a bungalow next door, the effect will be much greater if the new dwelling is a two-storey house. Forward views from St Austins House are considerably more attractive and will only be slightly affected by an adjoining house, although the proposed large double garage at the entrance from St Austins Grove will probably be seen from the front windows of St Austins House. Views from the garden of St Austins House will be affected by the presence of a house rather than a bungalow on the adjoining land. Overall, I am of the opinion that the various views from St Austins House and garden will be more affected by a two-storey house on the application land and, accordingly, the prevention of that greater impairment by the restriction is a benefit secured to Mrs Blois-Brooke.

Next I consider the effect of a house compared to a bungalow on the light to the windows in the eastern flank wall of St Austins House. I accept the evidence of Mrs Blois-Brooke that the rooms served by these windows receive the morning sun and that some of this will be lost by the erection of a higher two-storey house compared to a bungalow. The prevention of this loss of sunlight by the restriction is a benefit secured to Mrs Blois-Brooke.

Finally, I deal with the contention that, whereas a bungalow with two bedrooms would probably be occupied by a retired couple, a five-bedroom house with a double garage would probably be occupied by a larger family with children and two or more cars. In my view this is likely to be the position and therefore the house would produce a greater level of activity and noise than the bungalow, to the detriment of St Austins House. The prevention of this greater noise and activity is secured by the restriction and is therefore a benefit to Mrs Blois-Brooke.

I have now considered the major practical benefits claimed to be secured by the restriction. My answer to the first question is that, for the reasons set out above, the restriction, in limiting the proposed user of the application land to the erection of a single storey dwelling, secures to Mrs Blois-Brooke practical benefits which, considered overall, are of substantial value or advantage to her. These are: a reduction in the size and height of the dwelling to be built on the application land; limitation of loss of privacy, impairment of view, loss of light and noise and activity to those lower losses which would be caused by the erection of a bungalow on the application land. Overall, the benefit secured to Mrs Blois-Brooke is the limitation of the size and height of the dwelling to be built on the adjoining land to single storey with consequent limited interference with the continuing enjoyment of St Austins House. It is the limitation on height and the inevitable larger size of the dwelling which would be built if the restriction is modified which confers the benefits. The modification of the restriction to allow a two-storey dwelling would increase the interference above the level contemplated when the land was sold to Mr Farrow and the restriction imposed.

I consider now the second question under section 84(1)(aa) of the 1925 Act (public policy).

Applicant's case

Mr Farrow said that this application has been forced upon him because the local planning authority have indicated that planning permission would not be granted for a bungalow on the application land. He cannot develop the land other than by the erection of a two-storey house. (I have considered this submission under section 84(1)(a) above but will also consider it in the context of public policy).

I record that the supporting reasons in the originating application state that the restriction is contrary to the public interest because the local planning authority have decreed a two-storey dwelling to be the most suitable for the application land. The restriction will ensure that the public perception of what is reasonable cannot be achieved. Planning permission has been granted for the proposed house and it is unreasonable for Mrs Blois-Brooke to refuse the modification of the restriction, which prevents the use of the land by Mr Farrow. The local planning authority have indicated that a single-storey dwelling is unsuitable for the land.

Objector's case

Mr Bartle referred to Re Bass Ltd, Re Martin and Re Diggens and said that the grant of planning permission does not prove that opposition to the proposed user is contrary to the public interest. The grant of permission is the only argument used in support of this ground. The application must fail.

Decision

The second question I am required to answer under section 84(1)(aa) is whether the impeding by the restriction of the proposed user of the application land by the erection of a house is contrary to the public interest (section 84(1A)(b))?

The grant of planning permission does not necessarily mean that the proposed development is in the public interest and that it is contrary to the public interest for it to be impeded by a restrictive covenant. In Re Bass Ltd the member (J Stuart Daniel QC) said (page 159):-

"… the proposition that impeding that user is contrary to public interest may also be assisted by a planning permission but in rather a different way. As I have just said a planning permission is immediately persuasive on the general question whether a user is reasonable. [Counsel for the applicant] submitted that prima facie a planning permission also meant that the proposal was in the public interest. But that is not the question. The question is whether impeding the proposal is contrary to the public interest. There is here more than a narrow nuance of difference; 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. Thus the proving that impeding the present proposal is contrary to public interest raises a different onus from the onus of proving the user to be a reasonable one."

In Re Brierfield the former President (Sir Douglas Frank QC) adopted a similar approach (page 125):-

"… I think this case comes nowhere near satisfying ground (c), namely that the restriction in impeding reasonable user is contrary to the public interest. It may well be that it would be in the public interest for this land to be developed in the way proposed, but that is not to say that not developing it in that way would be contrary to the public interest. … …..one must, in my judgment, reach the conclusion that the public interest must be such that it overrides all objections to the proposal; …"

I agree with this approach. In this reference the grant of planning permission for the proposed house and the possibility (I put it no higher) that planning permission might be refused for a bungalow do not, in my view, necessarily mean that the restriction is contrary to the public interest by preventing the erection of the house. I find that the limitation of development on the application land to a bungalow, as opposed to a two-storey house, is not contrary to the public interest. I cannot find that the public interest will suffer by the erection of a bungalow and not a house on the application land.

I have found that the restriction in impeding the proposed user of the application land by the erection of a house does secure practical benefits of substantial value or advantage to Mrs Blois-Brooke and is not contrary to the public interest. The application fails under section 84(1)(aa) of the 1925 Act and I am not required to consider the question of compensation.

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

The question I am required to answer under paragraph (b) of subsection (1) of section 84 is whether Mrs Blois-Brooke has agreed, expressly or by implication, to the modification of the restriction?

Applicant's case

Mr Whatley put in evidence a draft deed of release which provides for the modification of the restriction for a consideration of £1. At the time of preparation this was understood to have been prepared on behalf of Mr Farrow and Mrs Blois-Brooke. The file was opened in the name of Mr Farrow and Mr Whatley was told that there had "been a mutually agreed release of the Deed of Covenant which [he] then prepared a document for." Subsequently, Mr Whatley was informed by Mrs Blois-Brooke that she did not consent. In those circumstances he was unable to act. Mrs Blois-Brooke took her deeds away from the firm and "moved matters over to" another firm of solicitors. The instruction to prepare the deed of release was given solely by Mr Farrow but both Mr Farrow and Mrs Blois-Brooke were clients of Mr Whatley at the time. He did not enquire of Mrs Blois-Brooke whether this was a joint instruction. The draft deed accurately reflected the instructions given by Mr Farrow.

Mr Farrow said that variation of the restriction was first raised by Mrs Blois-Brooke. Matters proceeded amicably at first. Mr Farrow became aware that planning permission would not be granted for a bungalow on the application land. He raised the variation of the restriction with Mrs Blois-Brooke and she indicated that there would be no difficulty. He met Mrs Blois-Brooke and her daughter on the application land and there seemed to be no difficulty over the issue. Accordingly, he instructed Mr Whatley, who was also Mrs Blois-Brooke's solicitor, to prepare a deed of release. He thought that he gave the instructions with the consent of Mrs Blois-Brooke.

Mrs Blois-Brooke then decided not proceed and told him that she wished to buy back the application land. He did not accept this offer. He then received through his solicitors an open letter from Hayes and Storr, Mrs Blois-Brooke's new solicitors, indicating that she had given verbal agreement to amend the restriction but had then changed her mind because she did not approve the scale and siting of the property. Her objection seems to be to siting and size and not to a two-storey house. Mr Farrow's solicitors tried to obtain clarification of these instructions in September 1997 but received a negative response from Hayes and Storr. Correspondence ceased in 1997.

In cross-examination Mr Farrow said:-

(i) At the meeting with Mrs Blois-Brooke plans of the proposed house were not shown to her or discussed but she gave her verbal agreement to a two-storey house at a lower level.

(ii) He knew it would be necessary to obtain Mrs Blois-Brooke's agreement to plans and elevations before the restriction could be varied.

(iii) Mrs Blois-Brooke signed the deed of release but it was not exchanged. He does not have a copy of the signed document. Mrs Blois-Brooke asked him to call at St Austin's House to pick it up.

(iv) His view of the position is that Mrs Blois-Brooke gave her verbal agreement to the modification of the restriction, signed the deed of release and then changed her mind.

Submissions – In the absence of submissions by Mr Farrow on this issue I record the supporting reasons given in the originating application. These state that plans and elevations of the proposed house were submitted to Mrs Blois-Brooke for approval and her initial response was that a waiver of the restriction would be given in consideration of £1. Consequent on this approval Mr Farrow incurred architects' and planning fees. Mrs Blois-Brooke then withdrew her consent.

Objector's case

Mrs Blois-Brooke said that at some time between 1990 and 1995 Mr Farrow called at St Austins House. Her husband was ill and she was more concerned with this than with Mr Farrow's problems. No mention was made of the restriction. Mr Farrow asked if they minded whether he built a house for his family instead of a bungalow. He did not show them any plans or refer to the size of the house. Mr Farrow had two small children and Mr and Mrs Blois-Brooke felt sorry for him, because of his personal circumstances, and, because they had the right to approve plans and elevations, they agreed in general terms to his request. They thought that Mr Farrow wanted to build a small three-bedroom family house in a chalet style, not dissimilar to the property on the other side of the application land.

Mr Farrow visited the land from time to time but no further mention was made of a house. The matter was not raised for several years. Mrs Blois-Brooke forgot about it.

In 1997 St Austin's House was valued for probate. Mr Farrow asked Mrs Blois-Brooke whether she intended to sell. She said that she did not. Mr Farrow then started to clear the application land.

In about June 1997 Mr Farrow marked out a building on the application land and invited Mrs Blois-Brooke and her daughter to look at it. They met on the land. Mrs Blois-Brooke believed that Mr Farrow's architect was present. They were only on the land for about 10 minutes. Mr Farrow had pegged out the site of the proposed house but Mrs Blois-Brooke found it impossible to visualise the house. Mr Farrow may have shown her a sketch plan. Mrs Blois-Brooke realised that Mr Farrow was talking about a house, not a bungalow. The restriction was not mentioned and it did not occur to Mrs Blois-Brooke at the time. It is untrue, as alleged in the originating application, that plans and elevations were approved and that she agreed to waive the restriction for £1 consideration. Mr Farrow did not show her any plans on this occasion or when he gave her the draft deed of release. Prior to her husband's death she recollected architects' plans being left with them by Mr Farrow but they did not look at them.

Shortly after the site meeting Mr Farrow called to see her with a draft deed of release. He was at the house for less than five minutes. A deed of release had not been mentioned before. Mrs Blois-Brooke had not been contacted about it by Mr Whatley. Mr Farrow asked her to sign it and have it witnessed. Mrs Blois-Brooke told Mr Farrow that she would discuss the matter with her son-in-law (who is a solicitor) at the end of June when he is next in the country. Mrs Blois-Brooke did not read the deed of release in Mr Farrow's presence. She knew it had something to do with the building of a house, not a bungalow, but she was not aware of the size of the proposed house nor did she realise that the release of the covenant was essential to his proposal. The deeds of St Austins House are kept in a safe which is difficult to open and they had not been looked at for some years. Mr Blois-Brooke had recently died and Mrs Blois-Brooke did not understand what Mr Farrow was asking her to do. Her husband had previously dealt with all matters regarding the house. Mr Farrow gave no explanation nor did he suggest that she should take legal advice. He did not provide her with any detailed plans or drawings of the proposed house.

Mrs Blois-Brooke discussed the matter with her son-in-law and then went away for a few days. When she returned she found that Mr Farrow had cleared the trees on the boundary of the application land. She was unhappy about this and decided that Mr Farrow was a different sort of person to the one she had thought him to be. She was concerned about the proposed building on the application land. In cross-examination Mrs Blois-Brooke said that she remembers telling Mr Farrow that she did not agree to the proposed house. She went to her solicitors, who were also then Walter Smith & Co. She saw Mr Whatley but he was unable to act because they had merged with Hunt & Co, Mr Farrow's solicitors. She then went to her present solicitors, Hayes & Storr, who wrote to Mr Farrow's solicitors on 17 July 1997 making it clear that she was not prepared to enter into the deed of release and wished to enforce the restriction.

Mrs Blois-Brooke said that she objected to Mr Farrow's planning application on the grounds of the size of the proposed house, its impact on her privacy and that it was not in keeping with other properties in the area.

Mr Bartle submitted that an agreement under section 84(1)(b) must be an agreement by Mrs Blois-Brooke to waive her right to enforce the restriction. Such a waiver can only be made with full knowledge of the facts (Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India at page 399). Mrs Blois-Brooke could only have agreed to the modification if she knew all the facts regarding the proposed house. On the evidence it is clear that Mrs Blois-Brooke was not aware of the details of the property and did not agree to the modification.

Decision

In order that I may modify the restriction under section 84(1)(b) of the 1925 Act I must be satisfied that Mrs Blois-Brooke agreed, either expressly or by implication, by her acts or omissions, to the restriction being modified.

In the statement of agreed facts the parties have agreed that, at Mr Farrow's invitation, Mrs Blois-Brooke and her daughter went on to the application land in June 1997. Mr Farrow's architect was present. The parties disagree as to what happened at that site visit and the legal consequences. The parties further agree that, subsequent to this meeting, Mr Farrow asked Mrs Blois-Brooke to sign a deed of release but it was never completed.

From the evidence I conclude that there are two events or series of events which I should examine to see whether they show agreement by Mrs Blois-Brooke to the modification of the restriction. The first is the meeting at some time between 1990 and 1995 between Mr and Mrs Blois-Brooke and Mr Farrow; the second consist of the series of events comprising the site visit and the preparation of the deed of release.

With regard to Mr Farrow's meeting with Mr and Mrs Blois-Brooke, I find that they expressed provisional approval to the building of a house or chalet bungalow on the application land for Mr Farrow's own occupation, subject to approval of plans, but did not agree to modify the restriction, which was not mentioned at that meeting.

On the evidence I find that the sequence of events comprising the site visit and the subsequent preparation of a deed of release was follows:-

(i) In June 1997 Mrs Blois-Brooke and her daughter met Mr Farrow and his architect on the application land at Mr Farrow's invitation. The proposed house was pegged out. Mrs Blois-Brooke was probably shown a sketch plan of the house but was not given any plans. She realised that Mr Farrow was proposing to build a house and not a bungalow. The restriction was not mentioned and it did not occur to Mrs Blois-Brooke.

(ii) Following this meeting Mr Farrow unilaterally instructed Mr Whatley to prepare a deed of release in respect of the restriction. Mrs Blois-Brooke was not aware of this instruction. It was not a joint instruction.

(iii) Mr Farrow called on Mrs Blois-Brooke and left the deed of release with her for her signature. Mrs Blois-Brooke discussed the matter with her son-in-law and then went away. On her return she found that Mr Farrow had carried out works on the application land of which she disapproved. She went to her then solicitors, Walter Smith & Co, and saw Mr Whatley who told her that he could not now act for her. Mrs Blois-Brooke then instructed Hayes & Storr, her present solicitors. They wrote to Walter Smith & Co (Mr Farrow's solicitors) on 17 July 1997 stating that Mrs Blois-Brooke was not prepared to enter into the deed of release, that she insists that the original covenant remains and that only a single storey building should be built on the application land, that she will insist on approving plans and elevations, that any use of the property other than as a private dwelling will not be tolerated and that work on the site to build a two-storey property in breach of the restriction must stop. Contrary to Mr Farrow's evidence this letter did not indicate that Mrs Blois-Brooke had given verbal agreement to amend the restriction and then changed her mind.

(iv) There is no evidence that Mrs Blois-Brooke signed the deed of release left with her by Mr Farrow.

(v) Mrs Blois-Brooke later objected to the planning application made by Mr Farrow for the proposed house and objected to this application, instructing solicitors, counsel and an expert witness to pursue her objection in this Tribunal.

I cannot find on these facts any agreement by Mrs Blois-Brooke, express or implied, to modify the restriction. The story they tell is this. Mr Farrow tried to persuade Mrs Blois-Brooke to agree to a house on the application land by inviting her to see the site of the proposed house. I expect Mrs Blois-Brooke said that she would consider the matter. There is no evidence that she agreed to a house on the land or to the modification of the restriction. Then Mr Farrow instructed his solicitor to prepare a deed of release and tried to persuade Mrs Blois-Brooke to sign it. She consulted her solicitor son-in-law and then opposed the proposed house. She instructed new solicitors who made it abundantly clear in their letter of 17 July 1997 that Mrs Blois-Brooke would not agree to the proposed house nor to the modification of the restriction. She has maintained that opposition by objecting to the planning permission and this current application.

The application fails under section 84(1)(b) of the 1925 Act.

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

An application under paragraph (c) of subsection (1) of section 84 can only succeed where the proposed modification will not injure the person or persons entitled to the benefit of the restriction. In Ridley v Taylor Russell LJ said (page 622) that paragraph (c) is "so to speak, a long stop against vexatious objections … designed to cover the case of the, proprietorily speaking, frivolous objection." Are Mrs Blois-Brooke's objections frivolous or vexatious? I have found that the restriction secures to her the limitation of the dwelling which can be built on the application land to a single storey building with consequent limitations on height, size and bulk. These limitations limit the loss of privacy, impairment of views, loss of light and noise and activity to those lower losses which will be caused by the erection of the single storey dwelling on the adjoining land permitted under the restriction. In my view, it must follow that the modification of the restriction to allow a house to be built on the application land will injure Mrs Blois-Brooke. Clearly her objections are reasonable, not frivolous or vexatious.

The application fails under section 84(1)(c).

DECISION

I have found that the requirements of section 84(1)(a) (aa) (b) and (c) of the 1925 Act are not satisfied. Accordingly, I have no jurisdiction to modify the restriction. I refuse the application. I should add that, even if I had been persuaded that I had jurisdiction to modify the restriction, I would have exercised my discretion against the applicant and would have refused the application.

This decision concludes my determination of the substantive issues in this case. It will take effect as a decision when the question of costs has been decided and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and order 61 rule 1(1) of the Civil Procedure Rules will come into operation. The parties are invited to make submissions as to the costs of this application. A letter accompanies this decision which sets out the procedure for submissions in writing.

DATED: 21 March 2001

(Signed: P H Clarke)

ADDENDUM

I have received written submissions on costs from both parties. Mrs Blois-Brooke, through her solicitors, asked for her costs on an indemnity basis. Mr Farrow, through his new solicitors, concedes that Mrs Blois-Brooke as the successful party should receive her costs but on the standard basis.

The power of this Tribunal to award costs is contained in rule 52 of the Lands Tribunal Rules 1996. Paragraph (1) states that, subject to two exceptions which are not relevant here, "the costs of and incidental to any proceedings shall be in the discretion of the Tribunal." Paragraph (4) provides that:-

"If the Tribunal directs that the costs of a party to the proceedings be paid by another party it may settle the amount of costs by fixing a lump sum or direct that the costs be taxed by the registrar on such basis as the Tribunal thinks fit, being a basis that would be applied on a taxation of the costs of High Court or county court proceedings."

It is not in dispute that Mrs Blois-Brooke as the successful party should be awarded her costs. I agree. Her solicitors included in their submissions a schedule of costs and invite me to make an order requiring Mr Farrow to pay these costs on an indemnity basis. I decline to make an order for a lump sum payment and will order that, in the absence of agreement, costs are to be the subject of a detailed assessment. The basis of assessment – standard or indemnity – is in dispute.

Rule 44.4 of the Civil Procedure Rules provides as follows:-

"(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue; and

(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.

(Factors which the court may take into account are set out in rule 44.5)

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

(4) Where –

(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis, the costs will be assessed on the standard basis."

The standard and indemnity bases of assessment differ in two respects. On the standard basis the court will allow costs which are proportionate to the matter in issue and will resolve any doubt in favour of the paying party. On the indemnity basis the consideration as to whether costs are proportionate is omitted and the court will resolve any doubt in favour of the receiving party. On both bases costs must be reasonably incurred and reasonable in amount. Rule 44.4 makes it clear that the normal basis for awarding costs is the standard basis.

Costs in proceedings in this Tribunal, including applications under section 84 of the Law of Property Act 1925, are normally awarded on the standard basis. I am unaware of any cases under section 84 where an unsuccessful applicant has been required to pay the objectors' costs on an indemnity basis. Certainly none were cited to me. I was also not referred to any authorities providing general guidance as to the basis of assessment of costs. The provisions of rule 44.4 set out above indicate to me that the standard basis should normally be ordered unless there are special circumstances requiring assessment to be made on the indemnity basis. Mrs Blois-Brooke's solicitors put forward four grounds to justify an order on this basis.

First, they say that the application should never have been brought and failed on every ground. I found that there was no merit whatsoever in the application. In my judgment, although Mr Farrow's application did not satisfy section 84, this was not a hopeless case; his evidence and submissions were relevant and directed to the requirements of the section. Mr Farrow's case was weak but I do not think that this is a reason for ordering costs on an indemnity basis.

Secondly, Mrs Blois-Brooke's solicitors say that this is not an ordinary dispute between two opposing parties. Mr Farrow chose to make the application and Mrs Blois-Brooke had no alternative but to object and thereby incur legal costs. I can see some merit in this argument and have sympathy with objectors who find themselves involved in a section 84 application in order to protect their property rights. However, Parliament has given to a person owning land burdened with a restrictive covenant the right to apply to this Tribunal for the discharge or modification of that covenant. I do not think that I can penalise Mr Farrow, as such a person, by ordering costs against him on the indemnity basis, for exercising that right. Where, as in this case, an application is made under section 84 and the applicant's case, although weak and unsuccessful, was directed to the requirements of that section, then I do not think that this should incur an order for indemnity costs due to the lack of success.

I can deal with the third and fourth grounds together. They both relate to the way in which Mr Farrow's former solicitors conducted his case. Mrs Blois-Brooke's solicitors say that she has incurred considerable legal costs in consequence of the inefficient way in which Hunt and Co conducted Mr Farrow's case, particularly the late application for an adjournment. In my judgment these grounds relate more properly to the assessment of the amount of costs rather than the basis. The standard basis allows the recovery of costs which are proportionate, reasonable in amount and reasonably incurred, the difference between the two bases being proportionality and the burden of proof. I do not think that Mrs Blois-Brooke is prejudiced in this respect by having her costs assessed on the standard basis. She can still recover proportionate costs which have been reasonably incurred and are reasonable in amount in dealing with any inefficiencies in the conduct of Mr Farrow's case.

I am not persuaded by the reasons put forward on behalf of Mr Blois-Brooke that I should depart from the normal practice of this Tribunal and order costs on an indemnity basis.

Accordingly, I order Mr Farrow to pay Mrs Blois-Brooke's costs of this application, such costs, if not agreed, to be the subject of a detailed assessment on the standard basis by the Registrar of the Lands Tribunal.

DATED: 10 May 2001

(Signed: P H Clarke)