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England and Wales Lands Tribunal
You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Girls Day School Trust (1872) v Skipton House [2001] EWLands LP_19_1999 (23 November 2001)
URL: http://www.bailii.org/ew/cases/EWLands/2001/LP_19_1999.html
Cite as: [2001] EWLands LP_19_1999
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- This is an application under section 84 of the Law of Property Act 1925 by The Girls Day School Trust (1872) for an order modifying three restrictive covenants affecting a former dwellinghouse which is now part of Notting Hill and Ealing High School. The objectors are owners of houses on the St Stephens Park Estate with the benefit of the covenants.
- Mr Jonathan Milner of counsel appeared for the applicants and called Mr Malcolm C Judd BSc FRICS MRTPI MCIArb, partner of Malcolm Judd and Partners, chartered surveyors, town planners and development consultants, of Chislehurst; Mrs Susan Whitfield MA, Head of Notting Hill and Ealing High School since 1991; and Mr Andrew James Willitts FRICS FCIArb of Buntings Ltd, property consultants and surveyors of Ealing W13. Unchallenged written reports were lodged from Mr Adrian Marsh BSc MSc CEng FIMM MIHT CGeol FGS of STATS Geotechnical, specialist engineering, materials and environmental consultants of St Albans, and from Mr Noel Winter of ISRM Consultants.
- Dr Gillian Reed PhD MA of 31 Wimborne Gardens, an objector, appeared on her own behalf and for some of the other objectors with leave of the Tribunal. She gave evidence and called Mr Barrington C Sworn FRICS, sole principal of Sworn & Co, estate agents and chartered surveyors of Chiswick W4; and Mrs Hilda Lilley, an objector, of 42 Wimborne Gardens. Miss Linda Dadak, an objector, of 76 Cleveland Road, appeared in person and gave evidence. The other objectors did not appear and were not represented.
- The parties were unable to agree a statement of agreed facts. A draft was prepared by the applicants but not agreed by the objectors. From the evidence I find the following facts.
- The St Stephens Park Estate ('the Estate') is a residential estate situated about one mile to the north-west of Ealing Broadway. The exact boundaries were not agreed but generally it is bounded by Cleveland Road in the north, St Stephens Road in the south, Argyll Road in the west and the rear gardens of the houses in Wimborne Gardens in the east. The houses on the Estate are mainly semi-detached, with some terraced and detached houses. A comparison of the 1896 and 1915 Ordnance Survey maps shows that most of the Estate was built during this period, probably soon after 1900, with further development in Cleveland Road between 1915 and 1934. The Estate is in a wider residential area, with a wedge of open space leading northwards from Cleveland Park to the River Brent. Along the eastern boundary of the Estate is the Notting Hill and Ealing High School, which is not on the Estate.
- The applicants are The Girls Day School Trust (1872) ('the Trust') which was founded in 1872 and is now a limited company with charitable status. It is the largest group of independent schools in the United Kingdom, with over 19,000 pupils in 25 schools, including 12 within the London area, all (with one exception) with junior and senior departments.
- The Trust operates Notting Hill and Ealing High School ('the School') on land which is contiguous with the eastern boundary of the Estate. The School was founded in 1873 and occupied premises in Notting Hill until it moved to its present site in 1931, relocating in a large, detached house and grounds (Lyndhurst) with frontage to Cleveland Road.
- Since relocation the School has expanded, mainly by the erection of new buildings. It now occupies an oblong site, with frontage to Cleveland Road, and extending back between the rear gardens of Edge Hill Road and Wimborne Gardens to St Stephens Road. Alterations and extensions over the last 50 years include: the construction of the west wing as an addition to the existing house (Lyndhurst), construction of a two-storey library and sixth form block in the rear garden of Skipton House, construction of a science block at the rear of the original house, the addition of an assembly hall to the gymnasium to provide a range of buildings to the west of the garden, the addition of a second floor to the west wing, the enlargement of the dining hall, construction of a three-storey extension to the laboratory block, and the building of a link between two former houses in St Stephens Road (Swallowfield and Redlands) to form the Junior Department. Overall the School comprises a range of mainly three and four-storey buildings. In 1945 Skipton House (the application land) was purchased and added to the School. In 1987 Swallowfield in St Stephens Road was purchased and incorporated into the Junior School, and a house on the corner of Castle Bar Hill and Edge Hill Road (Fairlawn) was recently purchased as accommodation for the caretaker.
- In 1991 there were 200 pupils in the Junior Department and 563 pupils in the Senior Department. This latter figure is now 560. Condition 16 in the planning permission dated 3 September 1998 for the redevelopment of Skipton House (paragraph 16 below) restricts the senior and sixth form school roll to a maximum of 600 pupils. All pupils are day pupils and just under 86 per cent live within the London Borough of Ealing.
- The School, with the exception of Skipton House, is not on the St Stephens Park Estate and is not subject to the scheme of covenants on that Estate. At the hearing the question was raised whether Swallowfield, St Stephens Road, is on the Estate, but I heard no evidence on this matter.
- The land which is the subject of this application is known as Skipton House, 4 Cleveland Road ('Skipton House'). It is on the corner of Cleveland Road and Wimborne Gardens. It forms part of the St Stephens Park Estate and is in the extreme north-eastern corner of the Estate. It is contiguous with the School and for all practical purposes it is now part of the School. The plot is oblong in shape. At the front is a large, detached house of brick and tile construction with accommodation on ground, first and second floors. This house may have been the first, or one of the first, houses erected on the Estate shortly after the conveyance of the land in July 1902. It was originally known as Mount Shadwell. It is shown as a double plot on the Estate plan attached to the conveyance dated 8 October 1900. The house and plot are larger than others on the Estate. At the rear of the house, in what was originally the garden, is a two-storey library and sixth form block erected in 1970.
- In October 1945 the Trust purchased the freehold of Skipton House and commenced to use it for educational purposes as part of the School. This was in breach of a restriction on the land (the trades restriction). In 1970 the library and sixth form block was built. Skipton House has been in continuous use for educational purposes since 1945 and is still in use for that purpose. This use was not challenged by those with the benefit of the restriction until 10 November 1998 when solicitors then acting for residents on the Estate wrote to the Trust threatening legal action to enforce the restriction but agreed to defer proceedings to allow application to this Tribunal for modification of the restriction. This challenge was made in consequence of the grant of planning permission for the redevelopment of Skipton House (paragraph 16 below).
- Skipton House is affected by restrictions contained in a Deed of Covenant dated 8 October 1900 between (1) the several purchasers of lots on the Estate and (2) the House Property and Investment Co Ltd, and in a conveyance dated 18 July 1902 between (1) the House Property and Investment Co Ltd and (2) Charity Mary Georgina Skipton; and in a conveyance dated 31 October 1945 between (1) Elizabeth Dotie Skipton and (2) The Girls Public Day School Trust Ltd.
- The restrictions which the Trust seek to modify are:
- It is agreed that the St Stephens Park Estate is subject to a scheme of development or general building scheme.
- On 3 September 1998 the London Borough of Ealing granted conditional planning permission (CDG/TPHP 02143/23) for the following development at Skipton House:
- In addition to the above permission the following planning permissions have been granted in respect of the School (including Skipton House) (excluding temporary permissions):
- The current development plan is the Ealing Unitary Development Plan (1995). The policies relevant to the use of Skipton House for educational purposes are CF27, CF28 and CF29. The preamble to these educational policies states that 'better educational opportunities require proper standards in all aspects of educational provision, including the sites and buildings'. Policy CF27 provides that school development shall comply with standards for premises, hard play areas and playing fields consistent with the requirements of the Department for Education, in the interests of users, the local environment and the potential for wider community use. Policy CF28 relates to proposals for the location or expansion of schools which are not required to comply with Department for Education standards. These will only be permitted if the Council are satisfied that the site and buildings have the capacity to accommodate the proposed number of pupils, staff and students, having regard to specific criteria including parking, public transport, the amenity of adjoining residential properties and adequate classroom and other floor space. Policy CF29 refers to the need to match primary and secondary school provision with population requirements.
- Skipton House is not listed as a building of special architectural or historic interest and is not in a conservation area. The St Stephens Park Estate is not within a conservation area and there are no listed buildings on the Estate.
- On 5 May 1999 the Trust applied to this Tribunal under section 84(1)(a) and (aa) of the Law of Property Act 1925 ('the 1925 Act') for an order modifying the building line, trades and nuisances restrictions in respect of Skipton House. The modifications to the building line and nuisances restrictions (as amended at the hearing) are consequential on the redevelopment of Skipton House. The modification to the trades restriction is to allow Skipton House to be used 'for the purpose of an educational institution', i.e. the current use.
- 86 objections to this application were lodged by owners of property on the Estate with the benefit of the restrictions. 15 objections were withdrawn during the proceedings. All objections are admitted. Three objectors took an active part in the hearing: Dr Reed, who lives at 31 Wimborne Gardens, which is contiguous with the rear boundary of Skipton House; Mrs Lilley, who lives at 42 Wimborne Gardens, opposite Skipton House; and Miss Dadak, who lives at 76 Cleveland Road, at the western end of the Estate some way from the School and Skipton House.
- I have made an unaccompanied inspection of the Estate and the surrounding area, including the School and Skipton House (all externally).
- I now deal with the modifications to each of the restrictions. I start with the trades restriction, which is the more important and occupied most of the hearing.
- The proposed modification is as follows:
- The additional words to effect the modification are in italics. This modification relates to the use of Skipton House as 'an educational institution', that is to say the current use, and not to the redevelopment under the planning permission dated 3 September 1998. The objectors' opposition to this modification was concerned almost wholly with the redevelopment and is therefore to a considerable extent irrelevant to my decision, which is restricted by the limited scope of the application. I look first at section 84 (1)(a) of the 1925 Act.
- The requirements of paragraph (a) of section 84(1) may be considered as a series of questions. First, have there been changes in the character of Skipton House? Mr Judd said that this property, built in 1902, was used for 42 years for residential purposes and then for 54 years (and continuing) for educational purposes. A two-storey sixth form and library block was built in the garden in 1970. There has been a clear and substantial change in the character of the property over a significant period. This is in breach of the restriction but without complaint from those with the benefit. The objectors gave no evidence regarding the change of use of Skipton House. Dr Reed submitted that the property still has the appearance of a private dwellinghouse notwithstanding the educational use.
- I am satisfied that there has been a material change in the character of Skipton House. This commenced in 1945 when the property was purchased by the Trust and used for educational purposes in conjunction with the adjoining school. There was a consolidation of that change in 1970 when the library and sixth form block was erected in the rear garden, following the grant of planning permission on 4 July 1970.
- The second question is whether there have been changes in the character of the neighbourhood? Mr Judd identified these changes to include the Argyll Surgery, the conversion of St Stephens Church into 22 flats, the conversion of some 13 properties on the Estate into flats, and the use, and continuing use, of Cleveland Road and St Stephens Road by motor traffic. He referred generally to development in Ealing over the past century, changing it from a rural to a highly urbanised area. Mr Judd said that the neighbourhood is wider than the Estate but that it is difficult to fix the boundaries. The northern and eastern boundaries are Cleveland Road and Edge Hill Road respectively; the western boundary may be Argyll Road, but the southern boundary is undefinable. I heard no evidence from the objectors as to changes in the character of the neighbourhood but Dr Reed submitted that the neighbourhood is co-terminous with the Estate. St Stephens Church is not on the Estate. The houses on the Estate which have been converted into flats still have the appearance of single family houses.
- I must first define the neighbourhood. This is a question of fact; a geographical rather than a legal concept. I adopt the explanation of the neighbourhood in Preston and Newsom, 'Restrictive Covenants Affecting Freehold Land' (ninth edition) at paragraph 12-09:
- From my inspection I can agree with the objectors to this extent, that the Estate does form a definite geographical entity, separate in character from the surrounding housing. It is clearly defined by the wide and much used roads, Cleveland Road, St Stephens Road and Argyll Road. On the eastern side, however, the boundary is less clearly defined geographically. Skipton House, in the extreme north-eastern corner of the Estate, is larger and on a larger plot than the other houses on the Estate. It is more similar to the next door house, formerly Lyndhurst, still standing but now absorbed into, and surrounded by, the School. Skipton House is also now part of the School, geographically and functionally, and it would, I think, be wholly artificial to fix the eastern boundary of the neighbourhood as the boundary of the Estate, thus separating Skipton House and the School. Clearly these two properties, which are now part of the same overall property, must be in the same neighbourhood. In my judgment, the eastern boundary of the neighbourhood should be Edge Hill Road, to the east of the School.
- What changes have occurred in the neighbourhood? The most significant are the establishment of the Notting Hill and Ealing High School in Lyndhurst in 1931 and the various extensions and expansions which have subsequently occurred, including the purchase and educational use of Skipton House in 1945 and Swallowfield in 1987, and the incorporation of these properties into the School. I am satisfied that there have been material changes in the neighbourhood due to material changes at the School.
- Mr Milner submitted that there are other material circumstances which should be taken into account under section 84 (1)(a), namely the grant of numerous planning permissions on the School and Skipton House. The objectors made no submissions on this point. Subsection (1B) of section 84 requires the Tribunal to take into account the development plan and the pattern of planning permissions and refusals when considering subsection (1A) (practical benefits and the public interest). I am not, however, persuaded that these matters have relevance to section 84 (1)(a). In Re Abbey Homesteads (Developments) Ltd Nourse LJ referred to the wording of paragraph (a) of section 84(1) and said (page 12):
- I have now found that there have been material changes in the character of Skipton House and the neighbourhood and that there has been a failure by those with the benefit of the restriction to enforce it in respect of the change of use of Skipton House. The final question under paragraph (a) of section 84 (1) is whether by reason of those changes and those circumstances the restriction ought to be deemed obsolete? In my view it is the change in the character of Skipton House (from residential to educational use) and the failure to enforce the restriction which are of overriding importance in this respect.
- Mr Milner referred to the definition of 'obsolete' in Re Truman, Hanbury, Buxton & Co Ltd (at page 272) and said that the original purpose of the restriction can no longer be served. It is therefore obsolete. Breach of the restriction occurred in 1945 and has not been challenged. The library and sixth form block was built in 1970. Change of use from residential to educational use has been implicitly sanctioned. There has been a tacit waiver of the restriction. The evidence shows that those with the benefit do not object to the use of Skipton House for educational purposes; they object to the redevelopment, a matter over which they have no right of veto. There is now no prospect of an injunction to stop the current use. It would be unconscionable for the objectors to enforce their right to stop the educational use. In support Mr Milner referred to Sayers v Collyer, Shaw v Applegate and Re W Findlay & Co Ltd. It is not open to the objectors to say that they were unaware of the restriction and could not have discovered its existence. It could have been found by looking at their deeds; the Land Registry has been open to the public for the past ten years. Also it cannot be said that the objectors were unaware of the educational use of Skipton House. Two other matters are to be taken into account. Skipton House is a double plot, on which a detached house of larger size than the other houses on the Estate has been built. It is adjacent to, and part of, the School.
- Dr Reed agreed with the definition of 'obsolete' in Re Truman but said that the restriction can be enforced. Skipton House still has the appearance of a dwellinghouse. The purpose of the restriction is to restrict the permitted building to a dwellinghouse. There has been no acquiescence in breach of the restriction. The objectors had no knowledge, actual or constructive, of the restriction until 1998. As soon as they became aware of it they used it to stop the proposed redevelopment (see letter dated 10 November 1998). The restriction was not registered. The Land Registry was not open to the public until 1990. Statutory annexation was not recognised. The objectors cannot have acquiesced in breach of a covenant which they did not know existed and which they could not have discovered. Even if they had been aware of the breach and did not object to the educational use, this does not mean that they do not object to the redevelopment of Skipton House. There are many types of educational use with different potential to cause different amounts of annoyance and nuisance. The library and quiet classroom use may cause annoyance and nuisance but the proposed swimming pool, concert hall and arts complex will cause annoyance and nuisance of an altogether greater magnitude. There is therefore no way in which the objectors can acquiesce in the use of Skipton House for educational purposes. Dr Reed referred to Federated Homes Ltd v Mill Lodge Properties Ltd. Two breaches have occurred: the commencement of the educational use in 1945 and the construction of the library and sixth form block in 1970. The redevelopment would constitute a new breach.
- In her evidence Mrs Lilley said that the restriction is not obsolete and is as important now as it was when it was drawn up. The purpose is to protect the area from unsuitable development and to stop nuisance and commercial exploitation.
- The question here is whether the restriction ought to be deemed obsolete by reason of material changes in the character of Skipton House and the neighbourhood and the failure of those with the benefit of the restriction to enforce it in respect of changes at Skipton House? The most important changes are the use of Skipton House for educational purposes (as part of the School) since 1945 and the erection of the library and sixth form block in 1970; the establishment of the School in Lyndhurst in 1931 and subsequent expansion, including the incorporation of Skipton House. Have these changes and the failure to enforce the restriction rendered it obsolete?
- Both parties accept the definition of 'obsolete' in Re Truman where Romer L J said (page 272):
- Can the original purpose of the restriction still be served? What was that original purpose? The restriction is in three parts. First, 'no shop shall be erected'. This is the only prohibition on building in the restriction. Second, 'no trade business or manufacture shall be carried on'. This is a prohibition on commercial use. Third, 'but all erections thereon shall be used for the purpose of private dwellinghouses only'. This is the main purpose of the restriction - to limit the use of the plot to that of a private dwellinghouse in order to preserve the residential character of the Estate. Dr Reed said that all restrictions affecting Skipton House should be considered together. They indicate that permitted building should only be a dwellinghouse. She did not develop this submission. I do not agree. In my view the building line and nuisances restrictions are directed to other matters, to preserve the building lines on the Estate and to prevent brickmaking and other nuisances. They cannot be read with the trades restriction to enlarge it to prohibit building (other than the erection of a shop). There are other restrictions in the 1900 indenture, relating to the minimum cost of houses to be erected, the prohibition of temporary buildings and the limitation of one house per lot, but these are not before me as part of the originating application and I received no submissions thereon from either party.
- Can the original purpose of the restriction still be achieved? It can still prohibit the erection of a shop and use for trade, business or manufacture (except in so far as the longstanding use for educational purposes may be in breach of the restriction). But can the main purpose of the restriction, to limit the use of Skipton House to that of a private dwellinghouse, still be achieved? This residential use ceased in 1945. The original purpose can only be served if this part of the restriction can still be enforced. It is, of course, not within the jurisdiction of this Tribunal to determine this issue: this is a matter for the courts. The Lands Tribunal has no power to grant injunctions or award damages (Re Hunt at page 136). Where, however, it is necessary, in order to determine an application to modify a restriction, to decide whether the courts would enforce that restriction, then it is for the Tribunal to decide that question as a preliminary step towards determining whether or not to modify the restriction, even at the risk that the court which has jurisdiction to grant an injunction or damages might come to a different conclusion. This was the approach adopted by this Tribunal (HH Judge Rich QC) in Re Sideras Properties (UK) Ltd and I adopt the same approach in this case. The question is, therefore, whether the educational use of Skipton House can now be stopped by the grant of an injunction? Only if the answer to this question is in the affirmative can the main purpose of the restriction still be served.
- In Sayers v Collyer a building estate was laid out in lots with mutual covenants against the building of shops or the use of a house as a shop or the carrying on of a trade. The defendant used his house as a beer shop with an off license. The plaintiff sought an injunction to restrain this use. He had known for three years that the defendant was using his house as a beer shop and had himself bought beer there. It was held by the Court of Appeal that the plaintiff had lost the right to enforce the covenant by his acquiescence in the activities of the defendant. Baggallay LJ said (page 106):
- In Shaw v Applegate Buckley LJ said, regarding the enforceability of a restrictive covenant (page 978D):
- In Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd Oliver J, after an extensive review of the authorities, said (page 155C):
- These dicta were referred to with approval by Nourse LJ in Gafford v Graham. He said that, if the test of unconscionability is the correct test for a legal right, 'it could hardly be suggested, unconscionability being the soul of equity, that there should be some lower test for an equitable right' (page 81) (as in this present application). In Gafford the defendant started converting a bungalow into a two-storey building and extending a barn in 1986, and in 1989 he commenced the construction of an indoor riding school, all in breach of restrictions on the land. In 1989 the plaintiff complained about these works and sought an injunction and damages. Nourse LJ said (page 81):
- I note that the facts in Gafford, namely that objection was only made when further development was proposed and not when the breach occurred, are similar to the situation in this current application, where the objectors have accepted the educational use of Skipton House in breach of the restriction but objected when it was proposed that redevelopment of this property should take place.
- I was referred by Mr Milner to the decision of this Tribunal in Re W Findlay & Co Ltd. In 1887 restrictions were imposed on land forbidding its use except for the purposes of a private residence. In 1929 buildings were erected and used as shops. An application to enforce the restrictions was started in 1929 and eventually dismissed for want of prosecution. In 1963 application was made to the Tribunal to modify the restrictions to permit the use of the buildings as shops. The member (Erskine Simes QC) said (page 96):
- Having regard to these authorities the test is whether, in all the circumstances, it would be unconscionable for those with the benefit of the restriction to seek an injunction to restrain the continued use of Skipton House for educational purposes? This use started in 1945 and has continued without complaint, other than the letter dated 10 November 1998 threatening to enforce the restriction but written in the context of opposition to the redevelopment of Skipton House. The objectors say that they were unaware of the restriction until 1998 but it is clear from their evidence and submissions that they would not have taken action in respect of the current use of Skipton House even if they had been aware of the restriction. They were certainly aware of the educational use of Skipton House. Their objection is to the redevelopment of that property and not to the educational use per se. The important fact is that this use has continued unchallenged for at least 53 years, much longer than the periods of acquiescence in Sayers and Gafford. The objectors argue that they would have challenged the educational use if they had known that it might lead to the redevelopment of Skipton House. However, they have no right to veto building on this property (other than the erection of a shop) and to acknowledge this point would, in effect, give them rights they do not have. I find that it would now be unconscionable for the objectors to enforce their rights to prevent the current educational use of Skipton House. The original main purpose of the restriction (to restrict the use of Skipton House to that of a private dwellinghouse) cannot now be served and the restriction is, to this extent, obsolete. The application succeeds under section 84(1)(a) of the 1925 Act. The restriction as modified will still prevent the erection of a shop and the use of Skipton House for any trade, business or manufacture other than use for the purpose of an educational institution.
- The issues under this ground can also be expressed as a series of questions. The first is whether the user of Skipton House for the purposes of an educational institution is a reasonable user of the land? Skipton House has been continuously used for educational purposes since 1945 as part of the Notting Hill and Ealing High School. No objection was made to this use until 1998 and then only in the context of redevelopment. A library and sixth form block was erected in the former garden in 1970 following the grant of planning permission. In September 1998 planning permission was granted for the redevelopment of Skipton House for educational purposes. Clearly, the use of this property for educational purposes is a reasonable user of the land. I heard no evidence or submissions to the contrary from the objectors.
- The second question is whether this user is impeded by the restriction? The wording of the restriction clearly impedes this user but, as discussed above, only to the extent to which it can now be enforced.
- The third question is whether the restriction, in impeding the user of Skipton House for educational purposes, secures practical benefits to the objectors which are of substantial value or advantage to them?
- Mr Milner said that the restriction secures no benefits to the objectors. It impedes the educational use of Skipton House and not the proposed redevelopment. The objectors have admitted this. They also admit that they accept the current use and do not seek to prohibit it. Skipton House, by reason of its larger size and double plot, is a unique property on the Estate. The modification of the restriction will not set a precedent. Furthermore, the evidence of Mrs Whitfield is that the School is unlikely to expand further following the redevelopment of Skipton House.
- Dr Reed said that the benefits secured by the restriction need not be pecuniary (Re Bass Ltd, Re Solarfilms (Sales) Ltd and Re Stevens). She listed the benefits as follows:
- A restriction can secure benefits to those entitled to the benefit only if it is enforceable against those subject to the burden. I have found that this restriction is unenforceable against the Trust in respect of their educational use of Skipton House. It would now be unconscionable for the objectors to enforce their rights under the restriction to prevent the continued educational use of Skipton House. As the restriction is unenforceable to this extent it must follow that, in impeding this educational use, it cannot secure substantial practical benefits to the objectors.
- I find similarities here with the facts of Re Sideras Properties (UK) Ltd. In that case application was made under section 84 (1)(aa) of the 1925 Act for an order modifying restrictions affecting two houses (15 and 17 Felixstowe Road, London N9) to permit their use as a residential care home for adults with learning difficulties. The restrictions were imposed in 1890 and prevented use other than as a private dwellinghouse. One of the houses (no. 17) had been used since January 1993 as a residential care home in breach of the restriction. The member (HH Judge Rich QC) considered whether this existing care home use in breach of the restriction was to be assumed to continue if the restrictions are not modified. This was looked at as part of the question as to whether the impeding of the proposed user would secure practical benefits to the objectors. He said:
- My next question is whether the impeding of the proposed user of Skipton House by the restriction is contrary to the public interest?
- For the applicants, Mrs Whitfield gave evidence of increasing educational demands on space and the need to retain and expand the accommodation at Skipton House. She said that there has been a steady increase in the requirements for specialist provision, particularly since the introduction of the National Curriculum in 1988, and particularly in respect of balanced science, modern languages, design and technology, information technology and playground usage and sports. All schools now require an extensive library/resource centre, gymnasium and sports hall and music facilities. Since the mid-1970s there have been changes in support and infrastructure requirements, including health and safety (school nurses, kitchens and for staff generally); the management and retention of statistics, data, policy documents and school records; and high quality reprographics for a variety of purposes. The School is facing increasing problems due to the inadequacy of the current accommodation. In September 2000 AS levels will be introduced. Virtually all pupils will take four subjects in year 12 (lower sixth) and three or four subjects in year 13, compared to the present position where most take only three subjects in each of the two years. The result will be an additional 33 per cent of taught pupil-lessons. There has been a surge towards creative subjects, with increased pressure on space. The planned introduction of a Key Skills qualification in the sixth form will result in greater use of classrooms generally and for information and computer technology in particular. The AS changes were anticipated and planned for several years ago when the redevelopment of Skipton House was first envisaged. The delay in implementation has brought the School up to the edge of the time limit planned for dealing with current problems in science, art, information and computer technology, design technology, modern languages, drama, sport and music.
- Changes and increases in examinations have brought additional pressure on classrooms and smaller teaching rooms. There has been an increase in the participation of parents and an increase in performances attended by parents. Staff accommodation is inadequate. The Government recommends a maximum school occupancy rate of 80 per cent. This is exceeded in almost every room in the School.
- Mrs Whitfield said that Skipton House is not now appropriate for modern teaching methods. Rooms are irregular in shape and the internal staircase is narrow. Retention for teaching is no longer suitable. The block to the rear is now used as a classroom and drama space. It requires considerable and expensive maintenance. Mrs Whitfield outlined the objectives and benefits of the redevelopment of Skipton House. This looks ahead for many years and should avoid the need for further expansion, although such expansion or redevelopment cannot be wholly excluded. It will most likely be internal reorganisation rather than external expansion. Mrs Whitfield said that since she went to the School in 1991 there have been no complaints or objections to its use as a school, nor is she aware of any objections to the educational use of Skipton House.
- I asked Mrs Whitfield what would be the effect if the educational use of Skipton House had to cease due to the restriction. She said it would be catastrophic. The facilities provided, and to be provided on redevelopment, would have to be replaced elsewhere. A great deal of planning would be required. Some subjects would have to be dropped. The effect on the pupils' education would be serious and far-reaching.
- Mr Milner said that this is clearly a case where the restriction is contrary to the public interest. He referred to Re Lloyd and Lloyd, Re O'Reilly, Re Brierfield, Re Bass Ltd and Scammell, 'Land Covenants' at pages 418-419. There are no other premises suitable for the present and proposed use of Skipton House. As explained by Mrs Whitfield, there is a desperate need for more accommodation within the School. The School has been established on its present site since 1931 and serves the local community (85 per cent of the pupils live within the London Borough of Ealing). It is essential that the accommodation requirements of the School should be met on one site and not in scattered locations.
- Dr Reed said that restriction on the expansion of the School is not contrary to the public interest. The School is an independent school with a private, not a public, interest in expansion and redevelopment. The proposed swimming pool which forms part of the redevelopment of Skipton House will not be open to the public. The facilities sought by the redevelopment are not available in other schools. They could be provided elsewhere. It is not in the public interest to provide a swimming pool and concert hall on Skipton House. The grant of planning permission for the proposed redevelopment is not evidence of the public interest (Re Brierfield). The Lands Tribunal has only once had regard to the public interest (Re Lloyd and Lloyd).
- Is the impeding of the educational use of Skipton House by the restriction contrary to the public interest? I am not aware of any decisions of the courts on public interest within section 84(1A)(b) of the 1925 Act (certainly none were cited to me) but I find some assistance in decisions of this Tribunal.
- The grant of planning permission for a proposed use or development does not necessarily mean that they are in the public interest. A planning permission says that a proposal will be allowed; 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 (Re Bass at page 159, Re Brierfield at page 125). For the public interest argument to prevail the Tribunal must 'reach the conclusion that the public interest must be such that it overrides all objections to the proposal' (Re Brierfield at page 125). The demolition of a new building erected in breach of a restriction may be contrary to the public interest (Re SJC Construction Co Ltd). There must be evidence to support the argument that a restriction is contrary to the public interest (Re O'Reilly, Re Wallace and Re Hopcraft), particularly that there are no alternative premises in which the relevant public interest could readily be met (Re Mansfield District Council). Generally, the public interest argument is unlikely to succeed where the applicant is a private individual or company trading for profit or pursuing a private interest. Conversely, a public interest argument is more likely to succeed where the applicant is a public authority or charitable organisation performing duties or functions of direct benefit to the public.
- I now consider the decision of this Tribunal (HH Judge Marder QC, later President) in Re Lloyd and Lloyd, where the public interest argument prevailed. In this case application was made to discharge or modify a covenant prohibiting the carrying on of any trade or business. The property affected was a spacious house in a residential area of Worthing. The applicant wished to use the property as a community care home for ten psychiatric patients assessed as ready to live independently in the community. On the public interest point the member said (page 122):
- In this present application I am satisfied on the largely unchallenged evidence of Mrs Whitfield that the restriction, in impeding the educational use of Skipton House, is contrary to the public interest. The evidence shows that:
- When considering the question of public interest it is necessary to balance the private interests of the objectors, in seeking to prevent the modification of the restriction, with the public interest which arises out of the impeding of the educational use by that restriction. It is material that the restriction is now likely to be unenforceable and, in any event, is a restriction on use and not on building (other than a shop). The objectors have, at most, a veto on educational use, not a veto on redevelopment. This educational use has been accepted since 1945 without objection until 1998, and then only in relation to the proposed redevelopment. To set against the private interest, the evidence of Mrs Whitfield clearly establishes the importance of the continuing educational use of Skipton House, the urgent need for more space due mainly to government policies, and the lack of other suitable properties for expansion. Dr Reed argued that the public interest cannot arise because the School is an independent school. I do not agree. The Trust has a charitable status, of long standing and high reputation. The School clearly serves a local need. Education is of importance in the public interest and it is immaterial whether that education is provided by the local authority or through independent schools. What is important is that the pupils of Notting Hill and Ealing High School, as in any school, should have the best education that can be provided. The restriction impedes that provision and is contrary to the public interest. The private interest of the objectors in the prevention of the modification and the enforcement of the restriction is outweighed by the public interest. I find that the restriction in impeding the educational user of Skipton House is contrary to the public interest.
- I have found that the restriction in impeding the educational use of Skipton House does not secure substantial practical benefits to the objectors and is contrary to the public interest. The final questions are whether money would be adequate compensation for the modification of the restriction and, if so, what amounts should be awarded?
- It has not been suggested that any amount should be awarded to make up for any effect of the restriction in reducing the consideration on imposition (section 84 (1)(ii)). Thus, any award should be 'a sum to make up for any loss or disadvantage suffered... in consequence of the ... modification' of the restriction (section 84 (1)(i)). I have found that the restriction is obsolete in respect of the educational use of Skipton House and that it does not secure substantial practical benefits in that respect because it is now unenforceable. Under these circumstances the question of compensation does not arise. The objectors will not suffer any loss or disadvantage by the proposed modification to allow educational use at Skipton House, a use which has been in existence since 1945. Furthermore, I heard no evidence as to the amounts of compensation for loss or disadvantage solely in consequence of the modification of the restriction. The modification sought is to allow Skipton House to be 'used for the purpose of an educational institution'. The evidence of both Mr Willitts and Mr Sworn was directed to the depreciation in value of the houses of Dr Reed and Mrs Lilley in consequence of the proposed modification of the restriction and the grant of planning permission for the proposed redevelopment of Skipton House (my emphasis). In other words, the depreciation represented the fall in value due to the modification of the restriction which would lead to the implementation of the planning permission dated 3 September 1998 and the redevelopment of Skipton House. In my view, this wrongly introduces a reduction in value in consequence of the proposed redevelopment, over which the objectors have no right of veto. It would, in effect, give them compensation, not for modification of the restriction to allow a use, but for the adverse effects of the grant of a planning permission and its implementation. However, this is not an issue which I must determine because it is clear that, the restriction being obsolete in respect of the educational use of Skipton House and securing no benefits in that respect, because unenforceable, there will be no loss or disadvantage suffered by the objectors in consequence of the modification of the restriction and no compensation.
- To summarise the position under section 84 (1)(aa), I have found that: the user of Skipton House as an educational institution is a reasonable user of the land which is impeded by the restriction (insofar as it is enforceable); the restriction in impeding the user of Skipton House does not secure practical benefits to the objectors which are of substantial value or advantage to them; the impeding of the educational use of Skipton House by the restriction is contrary to the public interest; and there will be no loss or disadvantage suffered by the objectors from the modification of the restriction. The application succeeds under section 84 (1)(aa) of the 1925 Act without the award of compensation.
- The application succeeds under both section 84 (1)(a) and (aa) of the 1925 Act: I have jurisdiction to modify the trades restriction. I have, however, a discretion as to whether I should do so. This discretion must be exercised judicially. I have no hesitation in declining to exercise my discretion against the applicants by refusing the application. The modification sought does no more than authorise the current and past use of Skipton House, a use which started 55 years ago and has continued without objection, except a very recent objection in the context of redevelopment. It is clearly in the public interest that this application should succeed. The objectors strongly oppose the redevelopment of Skipton House and that is the reason for their objections. This is a misconception. It is based on a right they do not have, namely the right to veto the form of building on Skipton House (other than the erection of a shop). The right they have is the right to veto any use of the property other than for the purpose of a private dwellinghouse. This may be tested as follows.
- If the Trust did not propose to redevelop Skipton House and had not obtained planning permission to do so, but wished to ensure that the present educational use could continue without fear of injunctive action by those with the benefit of the restriction, then their application to this Tribunal for an order modifying the restriction would be the same as the application which has been made. It would be granted for the reasons set out above, which do not include consideration of the redevelopment. After the grant of the modification, the Trust could obtain planning permission for the redevelopment of Skipton House and would be able to carry out that development without the need for further modification of the restriction. The objectors would have no right to stop that development under the modified trades restriction, even though the modification relates to use and not building. Under these circumstances, why should the objectors now be able to prevent the modification of the restriction due to their objection to the redevelopment? To take into consideration the redevelopment when considering an application to allow an existing use would be to take into account an irrelevant consideration and, in effect, give the objectors a right to veto the redevelopment, a right they do not have under the restriction. In short, consideration of the proposed redevelopment under the application to modify the trades restriction is a matter which I should not take into account.
- I order the modification sought to the trades restriction.
- The proposed modification (as amended at the hearing) is as follows:
- Mr Milner said that this restriction is obsolete due to changes in the character of the neighbourhood. Skipton House is in the extreme north-east corner of the Estate, and due to its large size and double plot, quite different from other houses on the Estate. The application should succeed under section 84 (1)(a). Under paragraph (aa) of subsection (1) of section 84 he said that the proposed user of Skipton House is reasonable and is impeded by this restriction. It secures no practical benefits to the objectors. The impeding of the proposed redevelopment by the restriction is contrary to the public interest. Money would be adequate compensation for the modification but none has been claimed. The application should succeed under section 84 (1)(aa). I heard no evidence from either party directly bearing on this part of the application and no submissions by the objectors.
- This restriction occupied little time at the hearing. It is of minor importance compared to the trades restriction. I cannot agree with Mr Milner that it is obsolete. Despite the changes to Skipton House and the School and other changes in the neighbourhood, the building lines on the Estate have remained intact. The original purpose of this restriction, to preserve the building lines for the benefit of the appearance of the Estate, can still be served. The application fails under section 84 (1)(a).
- The redevelopment of Skipton House under the planning permission dated 3 September 1998 is, in my judgement, a reasonable user of the land which is impeded by this restriction to the extent that it prevents building in front of the building line. In my view, the restriction in impeding this user to this limited extent does not secure to the objectors substantial practical benefits. The extent of building in front of the line is insignificant. The front wall of the new building on Skipton House will not project beyond the building line.
- The restriction, by impeding the redevelopment of Skipton House, is, in my view, contrary to the public interest. I have dealt with the public interest in some detail in connection with the use of Skipton House as an educational institution. It is no less important in connection with the proposed redevelopment. This takes the public interest point one stage further. Mrs Whitfield's evidence (paragraphs 56-59 above) deals with the urgent need for more accommodation. The School would suffer a severe setback if the educational use of Skipton House could not continue, but conversely this need will be met by the redevelopment of this property. In my judgment this restriction in impeding the redevelopment of Skipton House, insofar as it relates to works in front of the building line, is contrary to the public interest. The extent of the infringement of this restriction is insignificant. It is, in my view, contrary to the public interest that the proposed building should either have to be modified to prevent an infringement of this restriction, or placed in jeopardy in consequence of the restriction.
- Money would be adequate compensation for any loss or disadvantage in consequence of the proposed modification, but none has been claimed and I have no evidence on which I can base an award. I am doubtful if any objector, even those near to Skipton House, could show that loss or disadvantage would be suffered in consequence of this modification. The application succeeds under section 84 (1)(aa).
- I have no hesitation in exercising my discretion to allow this modification. The public interest point is still strong. It would, in my view, be wrong to exercise my discretion against the Trust. This could put the redevelopment in jeopardy or, at least, cause delay while amendments are made and a revised planning permission obtained. I order the proposed modification.
- The proposed modification (as amended at the hearing) is as follows:
- Mr Milner said that this modification may not strictly be necessary but has been included in the application for the avoidance of doubt and to ensure that objection cannot be taken to the execution of the works. All building works cause annoyance to those living nearby but this is a fact of life. Rebuilding cannot be prevented. Informative 1 to the planning permission for the redevelopment of Skipton House refers to the extensive powers of the local authority to control noise, disturbance and working hours for the benefit of nearby residents. Mr Milner accepted that this modification does not satisfy section 84 (1)(a) but it satisfies section 84 (1)(aa), particularly on the grounds of public interest. If the objectors receive any benefits from this restriction they are not substantial. Nearby residents cannot object to building works and compensation can only be awarded for nuisance in excess of that which would inevitably caused by building works, however carefully executed. There would be nuisance and annoyance if houses were built on Skipton House. No claims for compensation have been made and there is no evidence on which I could base an award but, if compensation should be awarded, the amount can be fixed by the Tribunal.
- Dr Reed said that she is concerned about the redevelopment of Skipton House, including demolition, massive excavations and pile driving. There will be noise and major nuisance. Disruption will be caused to the residents of Wimborne Gardens by the use of this road by contractors' vehicles. The redevelopment will cause greater nuisance than the building of houses. Mrs Lilley made similar points. Miss Dadak gave evidence of the nuisance she suffered when building works were carried out on a nearby house. Dr Reed referred to the decisions in Re Fletcher Sheltered Homes Ltd, Re Tarhale Ltd, Re Williams, Wood v Cooper and Re Mezmetals Ltd.
- I note that informative 1 attached to the planning permission of 3 September 1998 for the redevelopment of Skipton House gives some protection against nuisance from building works. It is as follows:
- I agree with Mr Milner that this application cannot succeed under section 84 (1)(a) of the 1925 Act. Under section 84 (1)(aa) I have found that the redevelopment of Skipton House under the planning permission dated 3 September 1998 is a reasonable user of the land. The nuisances restriction prevents anything being done or placed on Skipton House which may be or become a nuisance or annoyance. I can see that it could be used by nearby residents to object to the building works which must inevitably cause some nuisance or annoyance. It therefore impedes the reasonable user of Skipton House, i.e. the building works comprising the redevelopment. I note that this restriction does not in itself prevent building works but it could be used to prevent nuisance or annoyance arising therefrom. In Re Mezmetals Ltd the member (V G Wellings QC, President) noted that the building works in question (which included extensive excavations) would cause nuisance, annoyance or injury contrary to a covenant with similar wording to the restriction I am now considering. I think that the Trust are right to seek the modification of this restriction.
- In my judgement the restriction, in impeding the building works on Skipton House, secures practical benefits to some of the objectors which are of substantial value or advantage to them, namely the prevention of nuisance or annoyance from the works. These benefits are, however, secured only to those living close enough to Skipton House to be directly affected. This property is in the extreme north-eastern corner of the Estate and therefore few of those with the benefit of this restriction will be affected by the works. Unfortunately, I heard very little evidence on this point. In Re Tarhale Ltd the Tribunal (V G Wellings QC, President) accepted that a restriction impeding the reasonable user of the land and thus 'preventing the intolerable nuisances, which on the evidence, will occur during the construction period' secured to the objectors practical benefits of advantage to them.
- I now come to the question of public interest which I have already considered in some detail. This restriction, in impeding the building works comprising the redevelopment of Skipton House, is, in my judgement, contrary to the public interest. It would be contrary to the public interest for these works to be hindered or jeopardised by this restriction. The modification is, in effect, of a temporary nature and applies only to the works involved in the implementation of the planning permission dated 3 September 1998. Nuisance or annoyance are inevitable and it would be unsatisfactory and contrary to the public interest for this development to be hindered by attempts to enforce this restriction by the objectors, who have shown that they are wholly opposed to this development. Money would be adequate compensation for any loss or disadvantage in consequence of this modification, but none has been claimed and no evidence as to amount has been given.
- The requirements of section 84 (1)(aa) are satisfied and I have jurisdiction to modify this restriction. I have no hesitation in exercising that jurisdiction to allow this modification. The public interest is again very strong and it would be wrong for the redevelopment of Skipton House to be hindered during the building works by the existence of this restriction in its unmodified form.
- I order that the restrictions which are the subject of this application be modified to read as follows:
- I record the following decisions made during the hearing on matters of procedure.
- Dr Reed objected to consideration of the public interest because it was not referred to in the originating application. I agree that there is no specific reference to public interest in the application but the grounds on which it is made include section 84 (1)(aa) of the 1925 Act which refers to subsection (1A) which includes public interest. Consideration of public interest is therefore within the scope of the application and should be considered. I refused to uphold this objection and exclude consideration of questions of public interest.
- At the start of the last day of the hearing, near the conclusion of her closing submissions, Dr Reed asked for a 'ruling' on the meaning of the trades restriction. She could not explain why she wanted this ruling at such a late stage in the proceedings or how it would affect her case. I declined to give the ruling sought.
- Dr Reed then read out an application, which I understand had been prepared by solicitors advising the objectors but not on the record, for the suspension of the proceedings to enable application to be made to the High Court. Dr Reed could give me no further assistance on this application. Mr Milner was not given prior notice. The application did not comply with the requirements of the Lands Tribunal Rules as to the making of applications. I declined to consider it at such a late stage in the proceedings. I said that if the objectors wished to pursue this matter they should make the application in accordance with the Rules, including service on the Trust, and I would then deal with it. No such application to suspend the proceedings has been made.
- Finally, I should record that I refused leave on several occasions during the hearing for the objectors to introduce new evidence, either on the grounds that it was wholly irrelevant or because it was introduced out of time and in contravention of the directions I gave at the pre-trial review and after for the lodging and exchange of documents. I should mention that the objectors failed to lodge their other documents in the form or at the times set out in the pre-hearing directions but were allowed to introduce them at very late stages in the proceedings.
- 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.
- I have received written representations on costs from the Trust, from Dr Reed (on her own behalf and for 33 other objectors) and from Miss Dadak.
- The Trust ask for their costs from those objectors who appeared or were represented at the hearing. This submission is on the grounds that the application was wholly successful, no compensation was awarded and the objectors' case was misconceived. The objectors submit that the Trust should pay all the costs of obtaining the modifications because the application was made, and local residents were invited to take part in the proceedings, on an agreed basis which was abandoned by the Trust (without prior notice) at the hearing. The objectors' representations are lengthy and include attempts to introduce or reopen issues which were, or could have been, raised at the hearing. I cannot now consider these matters.
- I am satisfied that the Trust's case, as presented at the hearing, was within the scope of the originating application. I am not persuaded that the Trust altered their case to the detriment of the objectors. I can find no reason to deprive the Trust of their costs. Their application has been successful, without the award of compensation. The objectors' case was largely misconceived and much time was spent at, and before, the hearing on irrelevant matters. Accordingly, I order that Dr Reed, those objectors represented by her at the hearing and Miss Dadak shall be jointly and severally liable to pay the Trust'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 in accordance with rule 44.4 and rule 44.7 of the Civil Procedure Rules. The procedure under rule 52 of the Lands Tribunal Rules 1996 will apply to such detailed assessment. Dr Reed shall provide to the Trust within 14 days a list of the names and addresses of those objectors represented by her at the hearing.
[2001] EWLands LP_19_1999 (23 November 2001)
LP/19/1999
LANDS TRIBUNAL ACT 1949
RESTRICTIVE COVENANTS - restriction on user - former house - change of use to school in 1945 in breach of restriction - changes in neighbourhood and property - whether restriction enforceable - whether obsolete - whether practical benefits of substantial value or advantage secured to objectors - public interest - restrictions regarding building line and nuisances - proposed redevelopment - public interest - modifications ordered - Law of Property Act 1925, s 84(1)(a)(aa) (1A) (1B)
IN THE MATTER of an APPLICATION under SECTION 84(1) of the
LAW OF PROPERTY ACT 1925
by
THE GIRLS DAY SCHOOL TRUST (1872)
Re: Skipton House, 4 Cleveland Road, Ealing W13
Before: P H Clarke FRICS
Sitting at 48/49 Chancery Lane, London WC2A 1JR on 15-18 August 2000
The following cases are referred to in this decision:
Re Abbey Homesteads (Developments) Ltd (1987) 53 P&CR 1
Re Martin (1988) 57 P&CR 119
Re Truman, Hanbury, Buxton & Co Ltd [1956] 1 QB 261
Sayers v Collyer (1884) 28 Ch D 103
Shaw v Applegate [1977] 1 WLR 970
Re Findlay & Co Ltd (1963) 15 P&CR 94
Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594
Re Hunt (1996) 73 P&CR 126
Re Sideras Properties (UK) Ltd (1999) (unreported) (LP/43/97)
Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133
Gafford v Graham (1999) 77 P&CR 73
Re Bass Ltd (1973) 26 P&CR 156
Re Solarfilms (Sales) Ltd (1993) 67 P&CR 110
Re Stevens (1962) 14 P&CR 59
Re Bromor Properties Ltd (1995) 70 P&CR 569
McMorris v Brown [1998] 3 WLR 971
Re Ghey & Galton [1957] 2 QB 650
Re Snaith & Dolding (1995) 71 P&CR 104
Wood v Cooper [1894] 3 Ch 671
Lord Manners v Johnson (1875) 1 ChD 673
Re Williams (1988) 55 P&CR 401
Re Tarhale Ltd (1990) 60 P&CR 368
Re Fletcher Sheltered Homes Ltd (1991) (unreported) (LP/56/87)
Re Peacock & Bartolomeo (2000) (unreported) (LP/37/99)
Re Mezmetals Ltd (1989) (unreported) (LP/66/87)
Re Clement & Clement (1998) (unreported) (LP/6/97)
Re North (1998) 75 P&CR 117
Re Cowderoy (1957) 9 P&CR 522
Re Lloyd & Lloyd (1993) 66 P&CR 112
Re O'Reilly (1993) 66 P&CR) 485
Re Brierfield (1976) 35 P&CR 124
Re SJC Construction Co Ltd (1974) 28 P&CR 200; (1975) 29 P&CR 322, CA
Re Wallace & Co (1993) 66 P&CR 124
Re Hopcraft (1993) 66 P&CR 475
Re Mansfield District Council (1976) 33 P&CR 141
Mr Jonathan Milner instructed by Mrs Linda Humphreys-Evans, legal adviser to The Girls Day School Trust (1872) for the applicants.
Dr Gillian Reed in person and, with leave of the Tribunal, for some of the objectors.
Miss Linda Dadak, an objector, in person.
The other objectors did not appear and were not represented.
DECISION OF THE LANDS TRIBUNAL
FACTS
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road in front than the building line shewn on the said plan
TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only
NUISANCES No bricks shall be made on any lot and nothing shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St. Stephens Park Estate Ealing or to the purchaser of any other lot'
I will refer to these restrictions as the 'building line', 'trades' and 'nuisances' restrictions respectively.
'Demolition of existing educational building (4 Cleveland Road) and existing library and stores and construction of new swimming pool and three-storey arts block, a bridge link at first floor level to existing school building. Formation of additional parking area on existing forecourt.'
I will refer to this development as 'the redevelopment of Skipton House'. The accommodation in the new building will comprise a swimming pool with changing rooms and ancillary accommodation in the basement; a recital room on the ground floor; music and practice rooms and three classrooms on the mezzanine floor; and sixth form common rooms and art rooms on the first floor, with a bridge link to the main school.
| 26 January 1953 | Rebuilding of music room, science laboratory and room, science laboratory and boiler house. |
| 4 July 1970 | Erection of library and sixth form unit (Skipton House). |
| 16 March 1977 | Erection of three-storey block to provide science block and re-siting of classroom. |
| 12 December 1983 | Erection of second floor extension to school building to provide two classrooms. |
| 16 January 1984 | Erection of single-storey extension to rear of school to provide assembly hall. |
| 7 March 1991 | Erection of single-storey extension to dining room (Junior School). |
| 19 December 1991 | Erection of extensions at ground, first and second floor levels to provide seven new form rooms, assembly hall, additional living space and ancillary accommodation. |
| 4 April 1996 | Erection of three-storey extension to rear of laboratory block. |
| 4 June 1998 | Construction of verandas with glazed canopies at ground floor, single-storey extension and glazed infill extension at first and second floor levels (related to the planning permission for the redevelopment of Skipton House). |
TRADES RESTRICTION
'TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only save for the piece of land comprised in a conveyance dated 18 July 1902 between the House Property and Investment Company (1) and Charity Mary Georgina Skipton (2) being land on the corner of Cleveland Road/east corner of Wimborne Gardens which lots and all erections thereon may be used for the purpose of an educational institution'
Section 84(1)(a) of the 1925 Act
'This part of the subsection seems to be directed not to matters of title and the right to enforce the restriction, but to the question whether the restrictions affecting a given property, situated where it is situated, have been stultified by events on the surrounding premises.'
'The general words must be construed ejusdem generis with the particular words, and it seems to me that the matters relied on by the Lands Tribunal come nowhere near the genus.'
The matters relied on by the Tribunal in that case were the making of a compulsory purchase order, the service of notice to treat and entry, and the grant of planning permission for the development of the land by the acquiring authority. The expression 'other circumstances' (the general words) would therefore seem to be restricted to other circumstances regarding the property or the neighbourhood. In Re Martin the Court of Appeal held that the grant of planning permission is merely a circumstance that the Lands Tribunal should take into account under section 84: it does not necessarily require the Tribunal to discharge the covenant. It can be implied from this decision that, although the grant of planning permission is a matter to be taken into account by the Tribunal when considering an application under section 84 (1)(aa) and (1A), or when exercising its discretion after the issue of jurisdiction has been determined, it is not within the 'other circumstances' in section 84 (1)(a). The grant of planning permission does not make a restriction obsolete although development carried out pursuant to such a permission may be a material change to the property or neighbourhood to be taken into account under section 84(1)(a). In my view, however, the failure of those with the benefit of the restriction to enforce it after 1945 in respect of the change of use of Skipton House is a material circumstance which I can take into account.
'It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word "obsolete" is used in section 84(1)(a).'
'The authorities establish the principle that there may be such an amount of acquiescence as may bar the right of a covenantee to enforce his covenants. I mean acquiescence as distinguished from delay, for a shorter period is sufficient to bar the enforcement of rights in the case of acquiescence than in a case of mere delay.'
Bowen LJ said (page 108):
'.... a person who is entitled to the benefit of a restrictive covenant may, by his conduct or omissions, put himself in such an altered relation to the person bound by it as makes it manifestly unjust for him to ask a Court to insist on its enforcement by injunction. It was decided on equitable grounds that in such case there would be an equity against the plaintiff which would bar that particular relief.'
'The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the rights sought to be enforced, to continue to seek to enforce it.'
This test was agreed by Goff LJ (at page 780C): 'the test is whether, in the circumstances, it has become unconscionable for the plaintiff to rely upon his legal right.'
'The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared ....'
'... here the inquiry must be whether, in all the circumstances, it would be unconscionable for the plaintiff to continue to seek to enforce the rights which he undoubtedly had in 1986 to complain of the conversion of the bungalow and the extension to the barn. On the facts found or referred to by the judge, I am unable to answer that question except in the affirmative. The plaintiff knew what his rights were. He never made any complaint or objection to the defendant at the time. His objection to the application for planning permission in respect of the bungalow and his complaint to his solicitors can avail him nothing. He made no complaint to the plaintiff until the solicitors wrote their letter of March 7, 1989, about three years after the acts complained of. He only complained of them then because of the much more serious threat presented by the proposed construction of the riding school. Before that he had effectively treated the conversion of the bungalow and the extension to the barn as incidents which were closed.
For these reasons, I would hold that the plaintiff acquiesced in the conversion of the bungalow and the extension to the barn, his acquiescence being a bar to all relief in respect of those matters.'
'In view of the period for which the site has been used for trade, and the erection of shops on the adjoining site, I am satisfied that the covenant is obsolete...
The fact that, since 1929, the land has been used for shops without complaint or objection of any kind, justifies, in my view, an implied agreement by the person entitled to the benefit of the covenant to the modification now sought.'
Section 84(1)(aa) of the 1925 Act
(i) The preservation intact of a scheme of mutual covenants on the Estate, where there is a presumption that modification would not be granted with a consequent greater burden of proof on the applicants (Re Bromor Properties Ltd, Re Hunt).
(ii) The prevention of a non-residential use which would set a precedent and lead to further expansion by the School or the introduction of other non-residential uses onto the Estate (the thin end of the wedge) (McMorris v Brown, Re Ghey and Galton, Re Snaith and Dolding, Re Hunt).
(iii) The removal of anxiety regarding future development (Wood v Cooper, Lord Manners v Johnson).
(iv) The prevention of nuisance and annoyance due to the educational use and the construction of a new building on Skipton House (Wood v Cooper, Re Williams, Re Tarhale Ltd, Re Fletcher Sheltered Homes Ltd).
(v) Greater protection from development than is given by planning control (Re Martin, Re Peacock and Bartolomeo).
(vi) The prevention of the redevelopment of Skipton House and its disadvantages, particularly the deep excavation (Re Mezmetals Ltd, Re Clement and Clement).
(vii) The preservation of the view of Skipton House, particularly the trees (Re North).
(viii) Prevention of the loss of amenity due to the educational use, particularly parking (Re Cowderoy).
'16. The use of No. 17 has continued now for over 6 years, openly and to the objectors' knowledge. I accept the evidence is that they were unaware of their rights under the building scheme before 1996 but upon their becoming aware of their rights in the course of objecting to the proposed use solicitors on their behalf wrote threatening action "if the development authorised by the planning consent is proceeded with". I think that they thereby accepted the continuance of the existing use of No. 17. The applicant has brought this application in its present form, which I have spent some time in this Decision analysing, on the basis that the existing use is not in question.
17. Acquiescence provides a defence to a claim for injunctive relief for breach of covenant, the test of acquiescence being "whether, in all the circumstances, it would be unconscionable for the plaintiff to seek to enforce the right which he undoubtedly had" (see per Nourse LJ in Gafford v Graham ... at p.81). Of course, Mr Scott is right that there may be circumstances which have not been explored before me, that might lead to a different conclusion, but it does appear to me that in the face of the correspondence to which I have referred, it would now be unconscionable for the objectors to seek injunctive relief to restrain the existing use of No. 17. I therefore conclude that I should assume that such use may be continued notwithstanding the covenant, for whose modification to permit the combined use of the application site, the applicant applies.'
When considering whether practical benefits were secured by the impeding of the proposed use of the other property (no. 15) the member assumed that the existing use of no. 17 may be continued notwithstanding the restriction. He therefore considered the practical benefits solely in relation to no. 15, the proposed use of which could be impeded by the restriction. As I understand the decision, Judge Rich concluded, in effect, that the restriction in respect of no. 17 secured no benefits because it was unenforceable. He considered only the benefits which may have been secured by the restriction affecting no. 15.
'In my judgement the restriction in impeding that user is contrary to the public interest.
I am conscious that the Lands Tribunal in considering the public interest point on many occasions has never before modified or discharged a covenant on this ground in similar cases. The only instances where the public interest point has succeeded are the cases of SJC Construction Ltd, and a recent decision of the President which is unreported. Both cases were concerned with a situation where enforcement of the covenant would necessarily involve demolition of buildings already erected.
In the present case, however, the evidence is overwhelming that:
(1) there is a government policy of long standing whereby mental hospitals and institutions are closing and patients are being discharged into community care;
(2) pursuit of that policy requires the provision of a range of care homes in a community setting for treatment and rehabilitation of the victims of mental illness;
(3) the need for a facility of the kind proposed in the Worthing area as part of the range of necessary provision is "desperate";
(4) the subject property is well located and in all respects suitable to assist in meeting that need; and
(5) the owners are well qualified and able and willing to adapt the property for that use.
In the light of these findings, I am satisfied that the restrictive covenant in preventing that use is contrary to the public interest, and I would be prepared to grant the proposed modification on this ground.'
(i) The applicants are the largest group of independent schools in the United Kingdom, founded in 1872, now a limited company with charitable status. They are not a commercial organisation trading for profit.
(ii) Notting Hill and Ealing High School was founded in 1873 and relocated to Ealing in 1931. The Trust acquired Skipton House in 1945 and has used it for educational purposes as part of the School since that time.
(iii) The School serves a local need: just under 86 per cent of the pupils live in the London Borough of Ealing..
(iv) Although the educational use of Skipton House commenced in breach of the restriction, no challenge was made until November 1998 and then only in the context of opposition to the proposed redevelopment.
(v) Government policy in education (notably curriculum changes and the introduction of AS levels) and other changes have produced a growing demand for educational space.
(vi) This demand can be met by the continuing use of Skipton House for educational purposes as part of the School. There is no evidence that it could be met by the use of other properties as conveniently situated in relation to the School, or at all.
(vii) If the restriction causes the educational use of Skipton House to cease, the effect on the School would be catastrophic and have a serious effect on the pupils' education.
Conclusion
BUILDING LINE RESTRICTION
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road than the building line shown on the said plan save for an erection built in accordance with planning permission CDG/TPHP 02143/23 dated 3 September 1998'
The additional words to effect the modification are in italics. The building line for Skipton House was originally 30 feet from Cleveland Road; it was amended to 40 feet under the conveyance dated 18 July 1902. The application for the modification of this restriction is consequential on the redevelopment of Skipton House. The parts of the development in front of the building line are steps leading to the front entrance of the new building and two pillars. The front wall of the new building will not be in front of the building line.
NUISANCES RESTRICTION
'NUISANCES No bricks shall be made on any lot and nothing save for such articles temporary buildings structures and activities associated with the alterations demolition or construction of any erection or in accordance with the implementation of the planning permission CDG/TPHP 02143/23 dated 3 September 1998 shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St Stephens Park Estate Ealing or to the purchaser of any other lot'
The additional words to give effect to this modification are in italics. This modification is also consequential on the redevelopment of Skipton House and received little attention at the hearing. Its purpose is to allow the erection of builders' huts, the storage of materials and other activities which will occur during the redevelopment.
'The Council's Environmental Health Service has powers to control noise and disturbance during building works. It considers that normal and reasonable working hours for building sites are from 8.00 a.m. to 6.00 p.m. Monday to Friday, from 8.00 a.m. to 1.00 p.m. on Saturdays and not at all on Sundays. If any activities take place on the site beyond these times which give rise to noise audible outside the site the Council is likely to take action requiring these activities to cease.'
ORDER
'BUILDING LINE No erection other than such boundary fence or wall shall be erected nearer to the road than the building line shown on the said plan save for an erection built in accordance with planning permission CDG/TPHP 02143/23 dated 3 September 1998
TRADES No shop shall be erected and no trade business or manufacture shall be carried on in or upon any of the lots but all erections thereon shall be used for the purpose of private dwellinghouses only save for the piece of land comprised in a conveyance dated 18 July 1902 between the House Property & Investment Company (1) and Charity Mary Georgina Skipton (2) being land on the corner of Cleveland Road/east corner Wimborne Gardens which lot and all erections thereon may be used for the purpose of an educational institution
NUISANCES No bricks shall be made on any lot and nothing save for such articles temporary buildings structures and activities associated with the alterations demolition or construction of any erection or in accordance with the implementation of the planning permission CDG/TPHP 02143/23 dated 3 September 1998 shall be done or placed on any lot which may be or become a nuisance or annoyance to the Vendors or their Tenants on their St Stephens Park Estate Ealing or to the purchaser of any other lot'
PROCEDURAL MATTERS
DATED
(Signed P H Clarke)
ADDENDUM
DATED:
(Signed: P H Clarke)