England and Wales Lands Tribunal

[2001] EWLands LP_38_1999 (12 December 2001)

LP/38/1999

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – restriction to one dwelling house per plot – application to amend this limitation to permit erection on one plot of detached and two semi-detached houses, possibly as part of a larger development – not all proposed development site owned by applicant – whether proposed use reasonable – whether restriction obsolete – whether injury to objectors – application refused – Law of Property Act 1925, s84(1)(a)(aa)(c)

IN THE MATTER of an APPLICATION under SECTION 84 of the

LAW OF PROPERTY ACT 1925

BY HAMDEN HOMES LIMITED

Re: 30 Bell Lane

Little Chalfont

Buckinghamshire

Before: N J Rose FRICS

Sitting in public at 48/49 Chancery Lane, London WC2A 1JR

on 26 and 27 November 2001

The following cases are referred to in this decision:

Re Marcello Developments Ltd's Application LP/18/1999 and LP/31/2000, unreported

Gilbert v Spoor [1983] Ch 27

In addition the following cases were cited:

Re Martin's Application (1989) 57 P&CR 119

Re Peacock & Bartolomeo's Application LP/37/1999, unreported

Re Snaith and Dolding's Application (1995) 71 P & CR 104

McMorris v Brown (1998) 3 WLR 971

Re Tarhale's Application (1990) 60 P & CR 368

Re Solarfilms (Sales) Ltd's Application (1993) 67 P & CR 110

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

Re Fletcher Sheltered Homes Ltd's Application LP/56/1987, unreported

Daniells v Mendonca and Another (1999) 78 P & CR 401

Re Stevens' Application 14 (1963) P & CR 59

Re Diggens' Application LP/27/1999, unreported

Re Pennington's Application LP/22/2000, unreported

Re Luton Trade Unionists Club and Institute Ltd's Application (1969) 20 P & CR 1131

Re Bass Ltd's Application (1973) 26 P & CR 156

Robins v Berkeley Homes (Kent) Ltd Ch 1996 94B 714B, unreported

Re Snaith & Dolding's Application (1995) 71 P & CR 104

Re Hextall's Application LP/36/1997, unreported

Re Truman, Hansbury, Buxton & Co Ltd's Application [1956] 1QB 261

Andrew Francis, instructed by BP Collins, Solicitors of Beaconsfield for the applicant.

Mr John Wheatley, one of the objectors, for the objectors with permission of the Tribunal.


 


DECISION

1. This is an application by Hamden Homes Limited ("the applicant") under section 84 of the Law of Property Act 1925 ("the Act"), seeking the modification of a restrictive covenant affecting land in its freehold ownership and known as 30 Bell Lane, Little Chalfont, Buckinghamshire ("the subject land"), so as to permit the redevelopment of the subject land with one detached house at the front and a pair of semi-detached houses at the rear.
2. The subject land consists of a detached house on a site of approximately one-quarter of an acre and includes a large garden at the rear. It is situated on the south-eastern side of Bell Lane, six doors south-west of the junction with Elizabeth Avenue. There is another detached house fronting Bell Lane immediately to the north-east (No.32). The remainder of the Bell Lane frontage between Elizabeth Avenue and where it crosses the railway line six doors to the south-west of the subject land has been developed with semi-detached dwellings. On the opposite side of Bell Lane is the site of a former timber yard, part of which has recently been redeveloped for commercial purposes. The subject land is bounded to the rear by the back gardens of two semi-detached houses, 3 and 4 Cavendish Close, a cul-de-sac off Elizabeth Avenue.
3. The relevant restriction was imposed by a conveyance dated 12 March 1930 which contained, among others, the following covenants:

"(i) Not more than one house shall be erected on each plot.

(ii) All houses shall be detached and no houses or buildings shall be erected otherwise than in conformity with plans … first submitted in duplicate to and approved by the Vendors' Architect for the time being and erection shall not be commenced before such approval is obtained.

(iii) … No wireless poles of any description shall be erected and any wireless cables are to be erected from chimney to chimney.

(iv) … No artificial tiles or slates or other material whatsoever shall be used for such walls or roofs without the consent in writing of the Vendors or their Surveyor first had and obtained."

4. It is agreed that the objectors represented at the hearing are entitled to the benefit of the restriction. They are Mr and Mrs J Wheatley of 1 Cavendish Close, Mr and Mrs D Ahern of 3 Cavendish Close, Mr and Mrs A Gloor of 22 Bell Lane, Mr and Mrs S Tye of 10 Cavendish Close, Mr and Mrs H Fairhall of 9 Cavendish Close and Mr J Pringle and Ms C Dodson of 13 Elizabeth Avenue. In addition, an objection was made by the Chiltern Hundreds Housing Association, the owner of the freehold interests in 2 and 4 Cavendish Close and 1, 11 and 13 Elizabeth Avenue, all of which are occupied by tenants. That objection was accepted as valid by the applicant, although the Housing Association was not represented at the hearing. Finally, Mr and Mrs Joslin, formerly of 15 Cavendish Close, submitted an objection but have since moved from that property and were not represented.
5. Planning permission for the demolition of the existing house and the redevelopment of the subject land together with land at the rear of Nos.18 to 28 and 32 (even) Bell Lane was granted on 12 November 1998 ("the 1998 consent"). The permitted development was described as the

"demolition of dwelling, erection of one detached dwelling, three pairs of semi-detached dwellings, three blocks of three terraced dwellings, detached double garage, new access and parking areas."

6. This consent was subject to various conditions. No.18 read as follows:-

"The curtilage of the site the subject of this application shall not be reduced in area from that shown on the plans hereby approved, at any time."

7. The local planning authority gave the following reason for imposing this condition:

"In granting permission for this development, the Council had particular regard to the area of the site and would not have granted permission for the development had the site been smaller in area."

8. The applicant owns part of the land required to implement the 1998 consent. It does not own Nos.20, 24, 26 or 32 Bell Lane.
9. Mr Andrew Francis of counsel appeared for the applicant and called two expert witnesses, Mr J B Barraclough FRICS and Mr K Robinson, MICE, MIHT, AMIOA, Dip TE. Mr Wheatley appeared, with permission of the Tribunal, on behalf of all the objectors who were represented at the hearing. He gave evidence and called four of the objectors, namely Mrs Gloor, Mr Tye, Mrs Wheatley and Mrs Fairhall. He also called Mr M Rolmanis of 32 Bell Lane, Mrs B Dykins of 6 Chandos Close and Mr G D German of 30 Beechwood Avenue. He called no expert witnesses. On the day following the hearing, 28 November 2001, accompanied by representatives of the applicant and the objectors, I inspected the subject land and certain other properties owned by the objectors and other witnesses.
10. The application is made under paragraphs (a), (aa) and (c) of s84(1) of the Act. I deal firstly with paragraph (a), although Mr Francis described it as his second strongest ground after (aa). Mr Barraclough considered that the purpose of the original covenant was to prevent any extraneous buildings other than private dwelling houses from impinging upon the vendor's residential estate. He said that no fundamental changes to the estate had occurred since the covenant was imposed, since the estate was clearly a residential area. The trend, however, in the neighbouring areas had been to increase density by restricting the size of the back gardens. This reflected the social change that had occurred in the need and demand for gardens somewhat smaller than the original depth of 250 feet. The majority of modern houses had gardens of between 50 feet and 70 feet only. Mr Barraclough considered that the proposed development acknowledged that to meet modern circumstances smaller gardens were acceptable and to this extent it would be reasonable to modify the covenant to permit such an increased density.
11. Mr Francis put the applicant's case on obsoleteness rather differently. He explained that, when the subject land was sold in 1930, the surrounding land to the north, east and south was open farm land. It remained undeveloped until the 1950s. He submitted that, in 1930, the vendor, Chenies Estate and Finance Co Ltd, ("Chenies"), assumed that the neighbouring land would be developed with similar sized plots (of about one-quarter of an acre each) and with one detached house per plot. In fact, the surrounding plot sizes were now very much smaller. This was because in 1939, less than nine years after the relevant covenants were imposed on the subject land and No.32 adjoining it, Chenies sold the remainder of its land to the north and east to The Metropolitan Railway Country Estates Ltd ("MRCE"). In that conveyance, the purchaser covenanted not to erect more than eight houses to the acre. Such houses were to be either detached or semi-detached. Mr Francis concluded that, insofar as the original purpose of the covenant was to impose single detached houses on plots of about one-quarter of an acre, that had long since been abandoned. Consequently there was no realistic possibility of covenants restricting the use of land to houses of that sort or to that density being fulfilled.
12. The objectors do not accept that the covenant is obsolete. Mr Wheatley suggested that legal restrictions had proved immensely valuable in protecting the area from development and preserved much of the character of the area over many decades.
13. Where modification only is sought, the question of obsoleteness must be considered in relation to the development that is proposed (see Re Marcello Developments Ltd's Application (LP/18/1999 and LP/31/2000, unreported)). Accordingly I must decide whether the covenant is obsolete by reference to the proposed development of the subject land with one detached and two semi-detached dwellings. If the only purpose of the covenant were to prevent the erection of semi-detached houses, I would have no hesitation in finding that it was obsolete. This is because, with the exception of 32 Bell Lane, none of the remaining 14 houses abutting the site of the 1998 consent is detached. Some are semi-detached and some terraced. The application with which I am concerned, however, also involves the erection of three houses on a site which is currently restricted to one. Since the area of that site is only slightly over one-quarter of an acre, the density proposed is approximately 12 houses to the acre. Such a density is fifty per cent more intensive than that imposed in the conveyance of neighbouring land by Chenies in 1939. It is also approximately double the density restriction imposed by MRCE in 1955, when it sold the land lying between the southern boundary of the subject land and the railway, which is now the site of 18 to 28 Bell Lane, to Francis Jackson Developments Limited
14. There is no direct evidence before me as to the object which Chenies had in mind when it imposed the density restriction on the sale of the subject land and 32 Bell Lane in 1930. On the balance of probabilities, however, I have come to the conclusion that the purpose of the restriction was a general one, namely to prevent over-intensive development, rather than to restrict the density of the entire area to a particular number of houses to the acre. Against that background, I consider that the covenant would indeed be obsolete if it prevented development at a density of six houses to the acre, in view of the nature of the housing subsequently erected on the adjoining site and now known as 18-28 Bell Lane. A strong case could be made for the same conclusion to be drawn in relation to a proposed density of eight houses to the acre, in the light of the form of development that has taken place to the north and east of the subject land. The present application, however, would if granted result in the subject land being developed at an appreciably higher density than any of the immediately surrounding land. I am not satisfied that such a form of development would be consistent with the object of the covenant when it was imposed in 1930 which, as I have found, was to prevent over-intensive development. In preventing such development, therefore, the covenant still affords a real protection to those who are entitled to enforce it. Accordingly, I conclude that the covenant is not obsolete and the applicant is not entitled to succeed on ground (a).
15. In order to rely on paragraph (aa) the applicant must satisfy a number of tests, one of which is to demonstrate that the restriction impedes a reasonable use of the subject land. The objectors do not accept that it would be reasonable to use the land as proposed, namely for three houses, together with part of an access roadway and its hammer head. The applicant relies on the 1998 consent as indicating that the use proposed is reasonable. That planning permission was consistent with the relevant regional and local planning policies. Put simply, these require an increase in the provision of new homes over the next few years, where possible on brownfield sites or within existing developed areas by increasing density, thus avoiding trespassing on green belt or open countryside.
16. In my view, if the subject land were developed together with neighbouring sites in accordance with the 1998 consent, its new use would be reasonable. It is far from clear, however, that that permission will be implemented. Mr Barraclough submitted two reports to the Tribunal. In the second he stated that the applicant was optimistic that it would succeed in purchasing Nos.20,24,26 and 32 Bell Lane "consequent upon the result of this application".
17. Mr Rolmanis, the owner of No.32, said that he was not prepared under any circumstances to sell only that part of his rear garden that was required to implement the 1998 consent. He would be prepared to consider disposing of his entire property, but only if the price paid were sufficient to enable him to remain in the area in a house of the same standard, with a similar garden and similar accommodation. There had been some negotiations with the applicant in 1998, but these had broken down because the applicant was not prepared to pay the price he required. In the light of the evidence of Mr Rolmanis and the absence of any other evidence to support the optimism expressed in Mr Barraclough's report, I am not satisfied that the subject land would in fact necessarily be developed in accordance with the 1998 consent if the present application were to succeed.
18. Mr Francis suggested that, if the applicant were unable to acquire the remainder of the site of the 1998 consent, it could still construct a limited form of development on the subject land, together with that part of No.28 which is within its ownership. The form of development of that limited site, he suggested, would be virtually identical to what would take place on it pursuant to the 1998 consent; the only change would be in the treatment of the hammer head.
19. I have not been persuaded that the applicant would be able to carry out such a limited form of development. It is clear from a letter to the applicant's solicitors from the local planning authority that, in April 1999, the applicant's agents were advised to seek a fresh planning permission if their client intended to restrict development to the subject land and part of No.28 only. No such application has been submitted. The onus is on the applicant to prove that its proposed use is reasonable. Bearing in mind the statement in the 1998 consent that permission would not have been granted if the site had been smaller, and the absence of any clear evidence indicating a positive attitude by the planners towards a much more limited form of development, the applicant has failed to demonstrate that planning permission would indeed be forthcoming for such development. In those circumstances, I am not satisfied that the proposed use is reasonable.
20. The application under paragraph (aa), therefore, also fails. In consequence, it is not strictly necessary for me to consider whether the applicant is right to suggest that, in impeding the proposed use, the restriction does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them. Nevertheless, in recognition of the considerable amount of time which was devoted to this aspect at the hearing, I propose to indicate my conclusions on the matter.
21. Mr Barraclough considered that the effect of modification of the restriction on the value of each of the objectors' properties would be as follows:

9 Cavendish Close - £ 150 ("nominal")

10 Cavendish Close - £ 150 ("nominal")

13 Elizabeth Avenue - £ 500 ("minimal")

15 Elizabeth Avenue - £ 500 ("minimal")

1 Cavendish Close - £1,500 (1% of value)

3 Cavendish Close - £3,000 (2% of value)

22 Bell Lane - Nil or £3,500 (approximately 3.3% of value),

depending on the appropriate basis of valuation).

Housing Association - £5,000 for 5 properties

22. No evidence was called by the objectors to suggest that these figures were wrong and I accept them. The effect on value in each case is therefore small, in both absolute and percentage terms. It is, however, necessary to consider the adverse effects of the proposed modification on a broader basis than merely a financial one (see Gilbert v Spoor [1983] Ch 27). In doing so, the most weight should in my view be attached to the evidence of those who live closest to the site covered by the 1998 consent. The north-eastern corner of the proposed development site – part of 32 Bell Lane – adjoins the extreme western corner of the rear garden of 1 Cavendish Close, owned by Mr and Mrs Wheatley. An important factor in their joint decision to buy the property in late 1997 was the splendid view from the rear bedroom of trees, hedges, shrubs and bushes, with no properties immediately overlooking the rear garden. Mr Wheatley was also aware that there were large numbers of birds in the gardens in the area. On moving in, he placed a bird table at the end of his garden. This attracted a considerable range of birds including chaffinches, goldfinches, blue tits, thrush, blackbird, house sparrow, greenfinch and lesser-spotted woodpecker. The view beyond the boundary of the garden provided a pleasant backdrop for looking at this bird-life. Mr Wheatley considered that this view would be severely diminished by development to the rear of the garden, as would the garden's attraction as a play area for his children.
23. 22 Bell Lane also backs on to the site of the 1998 consent and one of its joint owners, Mrs Gloor, gave evidence. She and her husband have lived in the property for six years. Their second child is 4½ years old. He is deaf and autistic. He has a tendency to try to escape from the rear garden and in the past has had to be rescued from a neighbouring house. It will be difficult for Mrs Gloor to control his movements following the forthcoming birth of her third child. Were her son to climb over the rear fence at the present time he would land in a patch of brambles. If the rear land were developed, the land immediately at the rear of No.22 would then be used by motor vehicles.
24. I am satisfied that the concerns of Mr and Mrs Wheatley and Mrs Gloor about the impact of the proposed development on the enjoyment of their respective homes are justified. In the light of their evidence, I find that if the proposed modification resulted in the implementation of the 1998 consent (which it would if the applicant succeeded in acquiring the remaining properties) it is likely to result in damage to 1 Cavendish Close by way of interference with the view from the rear bedroom and interference with the enjoyment of bird-life in the rear garden. It would also cause anxiety to the owners of 22 Bell Lane that their son might be injured as a result of climbing over the rear fence on to the car park and roadway at the rear. I consider that the cumulative effect of these considerations is sufficient to establish that, in impeding the proposed use of the application land, the restriction secures to persons entitled to the benefit of it practical benefits of substantial value or advantage to them.
25. I have not overlooked the fact that, when Mrs Gloor purchased her property from the applicant, she was aware that the vendor was retaining a section of garden at the rear and she knew there was a risk that an attempt would be made at some time to free that land from the restriction on development. I also bear in mind that, when the original planning application which resulted in the 1998 consent was submitted, she and her husband negotiated an alternative layout in an effort to minimise the impact on their property. Nevertheless, as Mr Francis accepted, the owners of 22 Bell Lane are entitled to enforce the covenant because (unlike in the case of 18 Bell Lane) the applicant did not obtain its release when it sold the front section of the property to Mr and Mrs Gloor. In my opinion, the fact that No.22 was purchased with knowledge of the risk that an application for discharge or modification might be made is not relevant to the consideration under paragraph (aa). In any event, Mr and Mr Gloor's second child was not born until after they moved to Bell Lane. The problems arising from his medical condition, therefore, could not have been foreseen at that time.
26. There are two further matters to which I should refer for completeness. Firstly, Mr Robinson expressed the view that the proposed development would generate minimal air pollution or increased traffic noise. He was not cross-examined on these matters and I accept his evidence. Secondly, the rear garden of 3 Cavendish Close abuts the gardens of the subject land and 32 Bell Lane, both of which are the subject of the 1998 consent. Although the owners of No.3, Mr and Mrs Ahern, did not give evidence, it is clear that their property enjoys a significantly greater common boundary with the proposed development site than No.1; Mr Barraclough considered that, from the valuation viewpoint, it would be affected by the proposed residential development more adversely than No.1. The conclusion I have drawn as to the extent of the practical benefits from the restriction accruing to the owners of 1 Cavendish Close and 22 Bell Lane is, therefore, reinforced.
27. The final ground upon which the applicant relies is paragraph (c). It follows from my findings on paragraph (aa) that the proposed modification would cause injury to the owners of 1 and 3 Cavendish Close and 22 Bell Lane. Accordingly, the requirements of paragraph (c) are not satisfied.
28. In view of the above, it is not necessary for me to consider the effect of the proposed modification of the restriction on the properties belonging to the remaining objectors and, whilst intending no disrespect to them, I do not propose to do so. Evidence was also given by Mrs Dykins and Mr German, who live at some distance from the subject land and are not objectors. They were both concerned that the proposed modification could set a precedent affecting a much larger area, which they referred to as the Beechwood Estate. It was clear that the worries they expressed were genuinely felt. Neither of them, however, is entitled to the benefit of the restriction which is the subject of this application. Accordingly, their apprehensions are not relevant to a consideration of that application under paragraphs (aa) or (c).
29. As the applicant had not succeeded in establishing any of the grounds relied upon, the application is dismissed.
30. A letter on costs accompanies this decision which will take effect when, but not until, the question of costs is decided.

Dated: 12 December 2001

(Signed) N J Rose


 


Addendum

31. I have received written submissions on costs from the objectors but not from the applicant.
32. The objectors ask for an award of costs in their favour in the sum of £2,961.22. They have provided a detailed breakdown of their costs, including copies of receipts for disbursements.
33. The objectors' opposition to the application has been successful and I do not consider there is any reason why they should be deprived of their costs. In the absence of any representations from the applicant, the amount claimed seems to me to be reasonable.
34. Accordingly, I order that the objectors shall recover their costs of the application, amounting to £2,961.22, from the applicant.

Dated: 16 January 2002

(Signed) N J Rose