England and Wales Lands Tribunal

[2004] EWLands LP_13_2002 (3 February 2004)

LP/13/2002

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANTS – restrictions to single dwellinghouse and against developing part of site – application to discharge or modify the restrictions so as to permit development with additional house, part of which would encroach onto the prohibited area – whether practical benefits of substantial value or advantage secured by restrictions – whether any injury caused – application for modification but not discharge granted – compensation totalling £32,650 awarded – Law of Property Act 1925, s84(1)(aa) (1A) and (c).

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

LAW OF PROPERTY ACT 1925

BY

ROBERT JOYCE

and

MARGARET JOYCE

Re:

Land adjacent to "Ambleside"

Brookside Road

Brockenhurst

Hampshire S042 7SS

Before: N J Rose FRICS

Sitting in public at Bournemouth Crown and County Court,

Deansleigh Road, Bournemouth, BH7 7DS

on 28 and 29 October 2003

The following case is referred to in this decision:

McMorris v Brown [1998] 3 WLR 971

The following additional cases were cited in argument:

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

Re Carter's Application (1973) 25 P & CR 542

Re Forgac's Application (1976) 32 P & CR 464

Re Chapman's Application (1981) 42 P & CR 114

Re Snaith and Dolding's Application (1996) 71 P & CR 104

Re Kennet Properties Ltd's Application [1996] 2 EGLR 165

Re Davies' Application [2001] 1 EGLR 113

Stockport BC v Alwiyah Developments (1983) 52 P & CR 278

Re Diggens' Application [2001] 2 EGLR 163

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

Re Jillas' Application [2000] 23 EG 147

Ridley v Taylor [1965] 1 WLR 611

Gibert v Spoor [1983] 1 Ch 27 32

Re Page's Application (1995) 71 P & CR 440

Re Hunt's Application (1996) 73 P & CR 126

Re Chandler's Application (1958) 9 P & CR 512

William Webster, instructed by Brook Oliver, solicitors of New Milton, Hants for the applicants.

Neil Vickery, instructed by Scott Bailey, solicitors of Lymington, Hants for the objectors, Mr and Mrs David Barber.

Sara Hargreaves, instructed by Heppenstalls, solicitors of Lymington, Hants for the remaining objectors.


 


DECISION

1. This is an application by Mr Robert Joyce and Mrs Margaret Joyce ("the applicants") under section 84 of the Law of Property Act 1925 ("the Act"), seeking the discharge or modification of two restrictive covenants. The covenants affect freehold land ("the application site") with an area of 1,780 square metres, which until recently formed part of a large garden lying to the north-east of a house known as "Ambleside", Brookside Road, Brockenhurst, Hampshire, SO42 7SS. The purpose of the application is to allow the construction of a detached house containing five bedrooms, planning consent for which was granted subject to conditions on 31 October 2001.
2. The first restriction arises from the agreed fact that the application site forms part of an estate which was laid out subject to mutually binding covenants. It is known as the Brookside Estate, and has its origins in a conveyance dated 4 June 1931 between Albert Edward Francis Francis and Margaret Anne Barnwell of the site of what is now known as Little Barn. Clause 3 of that conveyance contained the following covenant:

"For the benefit of the vendor and his successors in title owner or owners for the time being of the remainder of the said Brookside Estate which is coloured violet on the said plan and so as to bind the property hereby assured into whosesoever hands the same may come the purchaser hereby covenants with the vendor that the purchaser and the persons deriving title under her will at all times hereafter observe and perform all and singular the restrictions and stipulations contained in the Third Schedule hereto so far as the same affect the property hereby assured …"

3. So far as is relevant, the Third Schedule provided as follows:

"1. No building shall be erected on the said land except one private dwellinghouse with or without a motor house and other outbuildings … and the purchaser shall not erect any such building without first obtaining the written approval of the vendor or his surveyor …

4. … No part of the land that is not built upon shall be used otherwise than as a garden orchard or private pleasure ground …"

4. By clause 4 of the Barnwell conveyance the vendor covenanted that he and the persons deriving title under him would at all time observe the restrictions contained in the Fourth Schedule for

"the benefit of the purchaser and her successors in title … so as to bind the remainder of the said Brookside Estate coloured violet on the said plan."

5. The Fourth Schedule provided:

"1. That the vendor will not erect more than three dwellinghouses on the land coloured violet south of the Bowden Smith Road [now known as Brookside Road] such houses to be detached and only one to be on the east side of the property sold.

2. That the vendor will not erect any house or building on the north side of Bowden Smith Road immediately opposite to the dwellinghouse now being sold …

3. That subject to the provisions set out in the last sub-clauses Numbers 1 and 2 the restrictions and stipulations contained in the Third Schedule hereto shall apply to the whole of the Brookside Estate and to every plot of land forming part thereof."

6. Thus, the effect of the Barnwell conveyance was to prescribe a maximum density of four houses on the southern side of Brookside Road and to limit development to no more than a single building on each of the plots within the building scheme.
7. The southern side of Brookside Road had been fully plotted with four units by 1937. It was only in 1960, however, that three plots came into being on the northern side, when the then owner of Ambleside (which included the application site) conveyed Wingfield and Lynton House to their first owners. The proposed dwellinghouse would be in breach of the covenant restricting development of the original Ambleside plot to one dwellinghouse only.
8. On 12 March 1958 Catherine Redman, who then owned the entire portion of the building scheme on the northern side of the road, conveyed a parcel of land on the southern side – now known as Bayfield – to John Boocock. Clause 4 described as "the land coloured yellow" the sites of Wingfield, Lynton House and approximately the eastern third of the application site. It said

"The vendor hereby covenants with the purchaser to the intent and so as to bind the land coloured yellow on the said plan into whosesoever hands the same may come and to benefit and protect the land hereby conveyed that she the vendor and her successors in title will observe and perform the restrictions and stipulations set out in the Second Schedule hereto."

9. The first restriction in the Second Schedule read as follows:-

"No buildings shall be erected on the said land coloured yellow on the plan annexed hereto except two private dwellinghouses with or without a garage and other out-buildings. Each dwellinghouse and garage shall be of conventional design and built of brick or brick faced with stucco or cement rendering and with tiled roofs and shall be not less than one thousand five hundred superficial square feet"

10. The proposed dwellinghouse would encroach at its eastern end onto the yellow land and thus be in breach of the "Bayfield covenant".
11. It is agreed that the objectors represented at the hearing are entitled to the benefit of the restriction. Those objectors are Mr David Barber and Mrs Karen Barber who own Bayfield, Mrs Elizabeth Mary Scott who owns Forest House, Mr Derek Elliott and Mrs Shirley Elliott who own Little Barn, Captain Anthony Robert Fletcher Thompson who owns Merry Acre, Mr David John Lawrence and Mrs Margaret Lawrence who own Wingfield and Mr Gary Malkin and Mrs Lucy Malkin who own Lynton House. Mr Michael Watson and Mrs Alison Watson, the owners of Ambleside, the remaining property within the building scheme, did not object to the application. Mr Watson is Mrs Joyce's cousin.
12. The original application to the Tribunal relied upon paragraphs (a), (aa) and (c) of section 84(1) of the Act for discharge and modification of the restrictions. Before me, however, only paragraphs (aa) and (c) were pursued. Moreover, although the application to discharge the covenants was not formally withdrawn, a statement of agreed facts dated 14 October 2003 recorded that the purpose of the application was only to allow the construction of the property the subject of the 2001 planning permission.
13. Counsel for the applicants, Mr William Webster, called one expert witness, Mr G D Bevans, FRICS, MCIArb, CDipAF, FEWI, who was until 30 April 2003 a partner in Cowling and West, chartered surveyors of Bournemouth and who is currently a sole practitioner. Mr Webster did not call any witnesses of fact.
14. Mr Neil Vickery of counsel appeared for Mr and Mrs Barber and called Mrs Barber to give factual evidence. He also called, as expert witness, Mr C G Dop, FRICS, MCIArb a partner in Humphreys and Dancer, chartered surveyors of Ringwood.
15. Ms Sara Hargreaves of counsel appeared for the remaining objectors. She called Mr Malkin and Captain Thompson as witnesses of fact and Mr C R Rutland, FRICS, MAE, principal of Clive Rutland Associates of Ashurst, Southampton as expert witness. In addition Mrs Scott's husband, Mr K P Scott, submitted a written witness statement which was not challenged.
16. I inspected the application site and the remaining plots included in the building scheme in company with the parties' representatives on the afternoon of the first day of the hearing.
17. It is agreed that the application site is located on the north western side of Brookside Road, which is a private, unmade road close to the centre of the village of Brockenhurst. It is broadly rectangular in shape and level. The site is approached over a single-track unmade road, without regular passing places, which passes the three other properties fronting Brookside Road which are not within the building scheme. The distance from Rhinefield Road – a main carriageway through Brockenhurst bordered by green verges and ditches – to the south western border of the building scheme is about 100 metres. The length of Brookside Road to which the properties in the building scheme have frontage is about 150m. The total length of Brookside Road is about 250m.
18. The effective areas of each site, excluding road and verge areas outside the apparent front boundaries, together with the site depths and the frontages to Brookside Road, are approximately as follows:

	Approx Frontage (ft)	Approx Depth (ft)	Area (m2)
Ambleside (excluding application site)	100	185	1740
Application site	100	195	1780
Lynton House	128	200	2210
Wingfield	155	195	2774
Merry Acre	124	200	2650
Little Barn	92	230	2000
Bayfield	95	270	1893
Forest House	147	275	2938

The site areas were agreed. The frontages of Ambleside and the application site were given in evidence by Mr Bevans. I have scaled the depths and the other frontages from the submitted Ordnance Survey plan.

19. Planning permission was originally granted for the severance and development of the application site on 7 June 1999. A further application was granted consent on 31 October 2001. The approved plans show a detached house with living room, dining room, study, kitchen, cloaks and utility at ground floor and, at first floor level, five bedrooms (two en-suite and one with dressing room) and a further bathroom. Externally there is an integral double garage.
20. It is agreed that, based on market values at 30 May 2003, the completed property would be worth in the order of £850,000 to £900,000. It is also agreed that, at the same date, the market values of the objectors' properties, before reflecting the effect, if any, of the current agreed application would be:

Lynton House	£650,000
Wingfield	£725,000
Merry Acre	£625,000
Little Barn	£675,000
Forest House	£850,000
Bayfield	£750,000

21. The planning policies affecting Brookside Road and the adjacent areas are identical. The Hampshire County Council's structure plan (1993) and the planning authority's strategy document "New Forest 2000", adopted in 1990 and revised in 1992, essentially required:

(a) The conserving and the enhancing of the open forest and countryside

(b) Preserving the unique character of the New Forest

(c) Protecting the setting and character of settlements

(d) Providing for housing and employment to meet local needs and to sustain the economy.

22. The population of Brockenhurst is about 3,400 and has grown steadily over the years by the building of new, generally higher density developments.
23. These policies are now taken forward in the Hampshire County structure plan (Review) and the revised deposit to the New Forest district local plan – first alteration July 2001. The structure plan requires the provision of 5,480 additional dwellings between 1996 and 2011 within the planning authority area. In addition, it requires a reserve housing provision of 500 dwellings to be made. There does not appear to be an established overriding acute shortage of sites to meet the local plan or structure plan requirements. Even if there is, however, it has not so far made an impact on the spaciousness of Brookside Road and the area covered by the building scheme.
24. It is agreed that other areas beyond the boundaries of Brookside Road and approached from different parts of Brockenhurst have changed as a result of property development to a significantly high density. The properties that abut the boundaries to the north-east are not within the immediate sphere of influence of the building scheme and are not readily visible from most of the objectors' properties. This is partly because the objectors' houses are set within large plots, but also because the building scheme area is well defined by trees that mostly screen the adjacent development. In addition there is no access to or from the adjacent development. This emphasises the sense of Brookside Road having a separate identity.
25. Policy DW-E8 of the revised deposit document identifies areas of special character within the villages in the New Forest. Within these areas development will only be permitted if it would not materially harm the character of the area, as reflected in the form and density of the development and in associated landscape features. The application site is within an area of special character.
26. The extent of land occupied by Forest House, Bayfield, Little Barn and Merry Acre (on the south eastern side of the road) is 2.37 acres approximately. This is a density of 1.69 units per acre excluding the road width. On the north western side the land occupied by Ambleside, Lynton House and Wingfield extends to about 2.10 acres. The existing density is therefore 1.42 units per acre and the proposed density is 1.9 units per acre excluding the road width.
27. The experts agreed the following facts in relation to Forest House. It is situated directly opposite Amebleside on the south eastern side of the road. Neither the drawing room nor the dining room, both of which are at the rear of the property and have no windows to the front, have any views towards the proposed development. The kitchen/breakfast room has a picture window to the front. The ground floor study has windows to the front and patio doors out to an enclosed area adjacent to the garage. The front ground floor windows all look out onto a high hedge along the front boundary and the proposed dwelling would not be seen from these windows. Pedestrian and vehicular movements along Brookside Road can be seen, however.
28. At first floor level are four bedrooms (one en-suite) and a further bathroom. Only the front bedroom used as a study, the bathroom, landing and separate wc have windows facing the application site. The proposed dwelling will be partly seen from these rooms, because the garage at Ambleside is visible over the top of the two high hedges. The garage height is about 4.2m, compared with the proposed ridge height of the proposed dwelling of about 8.2m.
29. At second floor level are two further bedrooms and a further bathroom, none of which have windows on the front elevation.
30. Mr Scott and his wife are both in their mid 80s. They have lived in Forest House for the last 20 years following his retirement as a consulting engineer. He had previously worked mainly overseas, with heavy responsibility as senior partner of his firm. He said that he and his wife had been delighted to find a family house in the quiet and attractive surroundings of Brookside Road. They felt that the restrictive covenant gave them solid security for the future against further development in the vicinity.
31. In July 2001 they had received an approach from Mr Joyce, offering to negotiate suitable compensation for lifting the restriction. They had made it clear that they were very happy with the identity of Brookside Road, with the houses and large gardens and with their neighbours, and that they would strongly oppose any further building in the road and were not interested in compensation. They emphasised their concern that once it could be seen that the covenants were negotiable, there were plenty of developers who would be delighted to move into Brookside Road, buy up existing properties and ruin the unique nature of the road, as they would have no great difficulty with the planning authority.
32. Mr and Mrs Scott considered their restrictive covenant was of substantial value to them in the amenity it provided by the low density and the adequate spacing of the dwellings in Brookside Road, which was in marked contrast to the high density housing surrounding the estate. Moreover, the present outlook from Forest House would be degraded by virtue of the proposed widened joint access to Ambleside and the proposed new property which would be immediately in front of the main windows overlooking that area. Then immediately to the right would be the new property itself. There would be serious disturbance during the construction of the building, not only by the vast number of deliveries of construction materials but also the noise and dust during construction.
33. Mr Scott emphasised that Brookside Road was a narrow gravel track, which was quite unsuitable for the increased traffic associated with the construction of the proposed development, and for the increased traffic movements generated from the proposed new property.
34. The agreed facts relating to Bayfield are as follows. It is situated diagonally opposite Ambleside on the south eastern side of the road. It is a detached house with hall, cloakroom, kitchen, dining room and lounge on the ground floor. The only rooms from which the site is visible to any extent are the kitchen and the small bedroom and landing at first floor level above it. A further window from the guest bathroom would face the development, but this has obscured glass. There is a half landing window from which the site is visible.
35. Mrs Barber said that she and her husband had purchased Bayfield in March 2001. They had moved from London and were keen to escape the "constant building sites and high density housing" there. They had been attracted to the property by the fact that all the houses in Brookside Road were set in substantial grounds. This special character of the road would be compromised if further houses were erected there. Bayfield was relatively secluded and peaceful and enjoyed a nice view of the meadow. If the application succeeded, Mrs Barber's family would no longer enjoy that view and the proposed new house would look onto Bayfield itself, reducing its privacy. There would be increased traffic, both during building construction and afterwards. Until the new building was finished her family would suffer from the noise and dirt associated with a building site. Discharge or modification of the covenants would set a precedent, resulting in Brookside Road becoming "another faceless estate".
36. In the course of cross-examination Mrs Barber accepted that, when she and her husband purchased Bayfield, they knew about the original 1999 planning permission and that there was an outstanding application to this Tribunal (subsequently withdrawn) to enable the permission to be implemented. She added that they had not paid any more or less for the house to reflect the benefit of the covenant.
37. It is agreed that Little Barn is situated on the south eastern side of the road, its frontage starting about 16m beyond the north eastern boundary of the application site. It is a detached house with three bedrooms (one en-suite) and a further bathroom at first floor level. At ground floor level is a hall, kitchen, dining room and lounge/study. The application site is visible from the en-suite bathroom at first floor level and from one bedroom, but any interference with their view will be minimal. The view from the front ground floor rooms is on to a high hedge.
38. It is agreed that Merry Acre is situated at the north eastern end of the south eastern side of the road, about 45m beyond the north eastern boundary of the application site. It is a chalet bungalow having a hall, kitchen, dining room, lounge, three bedrooms and a bathroom. Only one of the bedrooms is at first floor level and the site is not visible from there or any other room. The proposed development would have no impact on the views from this property.
39. Captain Thompson said that he purchased the site of Merry Acre in 1958. For the past 38 years he had been responsible for keeping the surface of Brookside Road in good condition and recouping the costs of doing so by equal contributions from the owners of all properties fronting the road. He was concerned that, in the short term, if an additional house were permitted, the roadway would be damaged and traffic using it would be inconvenienced by the increased number of vehicle movements along the narrow roadway. In the long term there would be far more wear and tear on the road. It was inequitable that the current occupiers of the existing houses should have to pay more for the increased damage that any building works and lorries would create. He was also worried that the cattle-grid at the entrance of Brookside Road was not strong enough to cope with builders' lorries and heavy traffic.
40. Captain Thompson considered that the restrictions had played a major part in preserving a feeling of spaciousness and tranquillity in Brookside Road. Because all the properties had large gardens and the plots were both wide and deep, there was an enhanced degree of privacy that was not to be found elsewhere in immediate vicinity. If the restrictions were relaxed he feared that it would destroy the integrity of the covenants which to date had effectedly prevented any inappropriate infilling.
41. It is agreed that Wingfield is situated at the north eastern end of the north western side of the road. It is a chalet style house having a hall, cloaks, kitchen, dining/lounge and bedroom with en-suite at ground floor level, while at first floor level there are four bedrooms and a bathroom. The application site is not visible from any room, but the new house will be seen from the back garden beyond Lynton House. This is not a principal view from the garden, but the house will be evident at some 45m distance to those using the garden.
42. It is agreed that Lynton House comprises a detached family house, L-shaped in design with three reception rooms, kitchen, utility room and cloakroom on the ground floor and four bedrooms with three bath/shower rooms on the first floor. The principal living rooms are to the front (south) and the lounge originally had french windows out on to a paved patio which directly faced the north eastern elevation of the proposed house. This was amended in 2002, when a conservatory was constructed in place of part of the patio on the south-western elevation.
43. The boundary between the proposed plot and Lynton House is formed by a hedge to the front and opposite the patio/conservatory but, to the rear, it is predominantly a low palisade fence which overlooks the present open garden of the application site, and vice versa. Shrubs have been planted by the applicants to help provide screening along the palisade fence. The south western wall of Lynton House is 3.9 metres from that boundary. A new garage has been constructed within the last year. The proposed development will have some impact on the views from Lynton House.
44. Mr Malkin said that he and wife had purchased Lynton House in October 1999. He is the managing director of a company and main board director of a group of companies. He spends a lot of time at meetings in London and works long hours. The appeal of Lynton House was its seclusion and the large gardens enjoyed by each of the objectors' houses in what was an oasis, surprisingly close to and convenient for the shops and the main line station. Although he had lived in Brockenhurst for some while, he had not known of the existence of Brookside Road until the prospective purchaser of his previous house had suggested that it would be suitable for him and his family. He had been very pleasantly surprised when he drove down Brookside Road for the first time, bearing in mind its close proximity to the centre of Brockenhurst. He could see that the property would provide the privacy that he needed. It was a safe place for his children who, because of the property's proximity to the centre of the village, would no longer need to be taxied around, which had been a regular necessity at the remote property where he had lived previously.
45. He and his wife had been particularly attracted by the undeveloped aspect of Brookside Road and the fact that its large houses were a comfortable distance apart. The previous owner of Lynton House - a local estate agent – had advised him that there was a suggestion that a property might be built in the grounds of Ambleside, adjoining the western boundary of Lynton House, which would result in an attempt to modify the restrictive covenant. He was, however, comforted by the fact that the vendor considered that the objectors would succeed in preventing the covenant being modified and, further, that Bayfield had the benefit of an additional covenant protecting the strip of land immediately adjoining his south western boundary. His family solicitor, too, felt that the covenants were unlikely to be discharged or modified.
46. Mr and Mrs Malkin were deeply concerned at the size of the proposed building. They considered that its proximity to their south western boundary, where they had built a conservatory and enjoyed the afternoon and evening sunshine, would have a huge impact on the enjoyment of their property. They had built the conservatory on the site of a former patio. It filled in the L-shape of the house, making the property more pleasing visually, whilst providing a light and airy room in the sunniest part of the building. They had installed under floor heating in the conservatory, so that it could be used throughout the year. Apart from the kitchen, the conservatory was the most used room in the house and was particularly enjoyed by Mrs Malkin. It looked out over the children's play area, where there was a trampoline. It was the main area used for socialising, because the thick boundary hedge provided good privacy. The conservatory was located off the dining hall and sitting room. It was a focal point of the ground floor rooms and much used in consequence.
47. Lynton House, and the other properties at the eastern end of Brookside Road, were set back a considerable distance from the road. Consequently, its rear garden – which was fairly dark because of the trees and fairly wet for most of the winter – was relatively small and the enjoyment of the south western side of the house, the conservatory and patio area would be badly spoilt if the proposed development went ahead. Even if a screen of evergreen shrubs or trees were planted along the south western boundary, it would be bound to affect the light and view that was currently enjoyed, and would not be sufficient to screen out the new house because of its proximity to the boundary.
48. Lynton House was on a flood plain. An additional dwelling would inevitably affect adversely the ability of the surface water to drain away, given that the existing soakaways and land drains seemed to be ineffective. The proposed development would destroy this private open location for his family. They would have to give serious consideration to moving, to regain the privacy and amenity that had so appealed to them when they had decided to purchase in 1999. It would be very difficult to find a property in a similar location to Brookside Road, which was private, secluded and yet centrally situated.
49. In the course of cross-examination, Mr Malkin agreed that, when he purchased Lynton House, he had been aware of the risk that the restriction might be modified, but this had not affected the price he paid. He also accepted that he had moved house fairly regularly; Lynton House was his fourth home in 12 years.
50. Mr Bevans agreed that the construction of the proposed dwellinghouse would have some impact on views from the rear garden of Lynton House and from the patio/conservatory. He questioned, however, whether such impact would be material in view of the thickness of the boundary hedge and the distance of the new dwelling from the hedge. He thought there would be no impact on the visual amenity of Merry Acre and Wingfield and minimal impact in the case of Little Barn, Bayfield and Forest House. In his opinion, the resultant increase in density on the north western side of Brookside Road would not cramp or otherwise affect the privacy of any of the objectors' houses.
51. Mr Bevans approached the traffic implications of the proposals by assuming that the new house would be occupied by four car owner/drivers. Allowing for two movements in and out per car per day, this would mean an average one additional car movement per hour over a normal 16 hour day. Given that such movements would pass just over half of the frontage of Forest House, and would not pass in front of the remaining objectors' houses, Mr Bevans did not consider they would be excessive. The section of Brookside Road lying south west of the entrance to the application site would be used more than at present, but the owners of the new house would presumably contribute to its upkeep.
52. Mr Bevans recognised that some disruption would occur over a period of three or four months while the main construction works were undertaken. There would be some noise from plant and machinery used during the construction process, but he anticipated that this would emerge as little more than background noise inside any of the houses in the road. If the works were carried out during the summer months it was likely that the other occupiers would be wishing to enjoy their gardens. The principal garden area to each of the properties on the south eastern side of the road was, however, behind the houses, which would form some sort of noise buffer. Merry Acre and Wingfield were at some distance from the proposed development, but Lynton House would be affected more than any of the others as it was next door to the application site.
53. Mr Bevans said that he had spoken to an officer of the local planning authority concerning the possibility that further sub-division of plots in Brookside Road might be permitted. He had been told that the road was in an area of special character, comprising large properties on large plots. The planning authority had considered that the former site of Ambleside, prior to sub-division, was sufficiently large to be divided and still possess those characteristics. It was considered unlikely that any further sub-division of plots would be allowed, because the plots would then become too small to fall within the classification.
54. Mr Bevans considered that the New Forest was a desirable location and Brockenhurst was one of the most desirable villages in the New Forest. Within Brockenhurst the Brookside estate was a unique development of houses in large plots. Against that background he concluded that none of the properties in Brookside Road would suffer any diminution in value if the application succeeded and the proposed development took place.
55. Mr Dop was of the opinion that the proposed development would reduce the open outlook currently enjoyed by Bayfield. This would deter some people from purchasing the house, resulting in a reduction in its market value from £750,000 to £735,000. The effect on value would be limited because the character of the area would not have changed fundamentally. Although present planning policies offered some protection against further intensification of development in Brookside Road, there was no guarantee that they would not change in the future. If the restrictions were relaxed further, so as to allow more intensive development on the site of Ambleside than presently proposed, and/or on other plots in the road, Mr Dop thought that the effect on value would be appreciably greater.
56. Mr Rutland considered that the existence of the restrictions secured a number of practical benefits to the objectors. By preventing further development they avoided additional traffic generation, both during construction and afterwards, which would result in increase in noise, dust, fumes and parking and damage to the road surface and consequently the cost of maintenance and the likely obstruction of the access way and Brookside Road. They afforded amenity to each of the properties by the low density and spacing of the dwellings. They restricted the degree of overlooking from one property to another. They prevented increased surface water flooding in an area where it was an existing problem.
57. In addition, the objectors were concerned that the proposed building would severely restrict sunlight and cause shadowing of Lynton House and its grounds and that the proposed modification, albeit limited, might prove to be the thin end of the wedge, triggering further developments by future owners. Also, Forest House and more particularly, Lynton House would be adversely affected during construction of the proposed building.
58. In the event that the Tribunal decided to modify the restrictions, Mr Rutland put forward a number of specific conditions which he felt should be imposed, since he did not consider that the objectors were sufficiently protected by the terms of the 2001 planning permission. Mr Rutland also put forward suggested figures of compensation to make up for the disadvantage that would be suffered as a consequence of the modification. These figures were made up of three separate elements. Firstly, temporary losses during the construction period. Secondly, the disadvantage resulting from the prospect of further development arising from the decision to breach the covenants of the building scheme – "the thin end of the wedge". Thirdly, in the case of Forest House and Lynton House only, the loss of longer term amenity resulting from the construction of the proposed building on the application site.
59. His suggested figures of compensation for each of the objectors' houses were as follows:

	Temporary Disturbance	Thin end of wedge	Permanent loss	Total
Forest House	£2,500	£20,000	£20,000	£42,500
Little Barn	£1,000	£20,000	Nil	£21,000
Merry Acre	£1,000	£20,000	Nil	£21,000
Wingfield	£1,000	£20,000	Nil	£21,000
Lynton House	£5,000	£20,000	£35,000	£60,000

60. Although Mr Dop did not put forward specific figures in respect of temporary disturbance and the thin end of the wedge, Mr Vickery submitted that allowance should be made for those factors in the case of Bayfield as well.

Decision

61. The application is made on grounds (aa) and (c) and I shall consider each in turn. Under paragraph (aa) the issue is whether the Tribunal is satisfied

"that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified impede such user;"

"(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either

(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification."

"(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances."

62. It is agreed that the proposed development would constitute a reasonable use of the application site for a private purpose and that it is impeded by the restrictions. The issues between the parties are whether the continued existence of the restrictions secures to the objectors any practical benefits of substantial value or advantage to them and, if not, whether money would provide adequate compensation.
63. In determining these issues, I shall consider each of the matters which cause concern to the objectors, starting with the temporary disruption while the proposed house is being built. If the application is successful and the proposed development proceeds, some disruption will occur over an anticipated period of three or four months while the main construction works are undertaken. There will be some noise from plant and machinery used during the construction process. If the works are carried out during the summer months, the likelihood is that the other occupiers will be wishing to enjoy their gardens. The principal garden area to each of the properties on the south eastern side of the road is behind the houses and the buildings themselves will form some sort of buffer against noise. In my judgment, the greatest disruption is likely to be to Lynton House in view of its location adjacent to the application site. Forest House and Bayfield will experience some noise and dirt during this time. The disturbance caused by the building works to Little Barn, Merry Acre and Wingfield will, however, in my view be very much less severe.
64. During the construction period there will be works traffic visiting the application site. Such traffic will pass the entrance of Forest House but none of the houses of the other objectors. Because of the narrow width of Brookside Road, I consider it unlikely that contractors' vehicles will be parked on the road itself, but they are likely to cause some obstruction to the normal traffic flow between the application site and the junction with Rhinefield Road. Moreover, the use of the road by heavy vehicles for a period of months is likely to result in a modest increase in maintenance costs, which will be shared by the objectors and the four remaining house owners in Brookside Road.
65. I now turn to the long-term effects of the proposed development on the objectors' houses and start with their outlook. In my judgment the effects on each of the houses are as follows:

Forest House. The main living rooms do not overlook the proposed new house. There will be a limited view of it from one of the six bedrooms, which is used as a study, a bathroom, landing and separate wc. There will also be a wider vehicular access on the opposite side of the road.

Bayfield. The main living rooms do not overlook the application site. The new building will be visible to a limited extent from the ground floor kitchen, the small bedroom and landing on the first floor and a half landing.

Little Barn. Any interference with the view will be minimal.

Merry Acre. The proposed new house will not be visible.

Wingfield. The application site cannot be seen from the house although it will be partly visible from the front and rear gardens.

Lynton House. There will be a limited view of the new building from the patio/conservatory, above the level of the existing tall hedge, and from the rear garden.

The interference with the existing views from the objectors' properties caused by the proposed development will therefore be limited.

66. Although there will be a view over the north westerly part of Lynton House's rear garden from the windows of the new building on the north western elevation, this is a north facing garden which is not used as much as the front, south west facing garden. With this minor exception, I consider that the proposed development will have no material effect on the privacy of any of the objectors' properties.
67. In his initial report, Mr Rutland suggested that, in the case of Lynton House, the proposed development would have a shadowing effect for in excess of six months of each year, which "will be significant for the larger part of the day". During the course of the hearing, Mr Rutland reached agreement with Mr Bevans that this shadowing effect would be "on the house or conservatory or garden for part of the day when the sun is shining". The experts also agreed that the average number of daylight hours for the months October to March inclusive is 10 and that the average hours of sunshine are 3.5 (1820 total daylight hours divided by 518.6 hours sunshine).
68. Mr Webster submitted that it ought to be apparent from these figures that, in the six months of the year when the bearing of the sun to the horizon will be at its lowest, there is bound to be some over-shadowing when the sun is shining. This will be variable as the sun moves across the sky and will not be limited to the conservatory. He submitted that the hedgerow already screened out a good deal of daylight coming into the conservatory and that any additional over-shadowing was only likely to occur when the sun was low in the sky and liable to be very weak anyway. In the longer daylight hours the loss of amenity would be negligible. The position was similar in the case of the rear, perpetually damp, north facing garden, where the user was bound to be extremely limited in the colder months of the year. I accept those submissions and find that the impact of the over-shadowing caused by the proposed development would be insignificant.
69. As I have said, Mr Rutland suggested that the construction of a new house in this damp location could lead to drainage problems. In an attempt to meet this objection the applicants wrote to the Environment Agency on 9 July 2003, proposing the following six measures to lessen the impact of the proposed new building on surface water flows:

"1. Block and beam construction to ground floor. Floor to be 500mm above existing ground level.

2. Water from roof areas to be taken to deep soakaways 5m from building to building control approval.

3. Driveway to be pervious gravel.

4. Drainage of patio area to a soakaway

5. No additional land raising to be done on site.

6. Air bricks to be fitted with watertight covers."

70. On 28 July 2003 the Agency responded by saying

"The methods proposed in your letter generally appear acceptable with regard to floodproofing and rainwater source control onsite."

71. The applicants indicated that they would be prepared to give an undertaking to implement these proposals. On the assumption that those measures are undertaken, I do not consider that the proposed development would have a material adverse drainage effect on the objectors' properties.
72. A further ground of objection is that the construction of an additional house would adversely affect the sense of spaciousness presently enjoyed by the objectors. In the course of oral evidence, however, Mr Dop accepted that the proposed new plot would only be marginally smaller than the remaining plots on the estate and Mr Rutland accepted that the proposed development was what one might expect in a "no covenant world". In my judgment, the construction of an additional house on the application site will not significantly affect the perceived density or spaciousness of the estate; it will continue to comprise a number of properties set in substantial grounds; the characteristic which proved to be an important attraction to both Mr and Mrs Malkin and Mr and Mr Barber when they decided to move there.
73. Captain Thompson was concerned that the wear and tear on Brookside Road would increase in the long term, resulting in increased maintenance costs. The applicants responded that the additional costs resulting from one more house would be offset by the fact that they would be shared by one more householder than at present. I agree with the applicants on this point and find that the objectors will not suffer any significantly increased maintenance costs in the long term. Nor was there any expert evidence to support Captain Thompson's fears about the strength of the cattle grid.
74. So far as the increased traffic flow along Brookside Road is concerned, this will depend largely on occupancy and that could change from time to time. I agree with Mr Bevans, however, that the additional traffic resulting from one more house is unlikely materially to affect the amenities of the remaining residents of Brookside Road.
75. The final objection to the application is that, if granted, it will form the thin end of the wedge. The objectors submitted that if the application succeeded it would provide a precedent for breaking the covenants and increasing the density of the estate still further. Mr Rutland did not suggest that current planning policies were likely to result in further sub-division of plots on the estate, although such policies could well change in future. He did consider, however, that it was possible that consent might be granted for several plots to be combined and broken up to provide a greater number of sites, resulting in a significant increase in overall density.
76. In response, Mr Webster submitted that the presence of a dwellinghouse on a fourth plot between Ambleside and Lynton House would merely bring the density on the northern side of Brookside Road into line with the development pattern on the south and was unlikely to afford a precedent for development elsewhere on the estate. He added that the thin end of the wedge argument was only likely to have force in the case of future sub-division which, he submitted, was highly unlikely to pass the section 84 threshold, as it would almost certainly be viewed as intensification rather than as an adjustment to bring density on the northern side of the road into line with that existing on the south.
77. In McMorris v Brown [1999] 1 AC 145, the Privy Council considered the correct approach to be adopted to the thin end of the wedge argument in English law. They said:

"The onus is on the applicants to show that a first relaxation of that covenant would not constitute a real risk as a precedent"

In considering whether the success of the present application would create such a precedent, I consider it necessary to bear in mind that the application site is the only undeveloped piece of land with dimensions that are consistent with those of the existing plots on the estate. Its frontage is greater than of Little Barn or Bayfield and its depth is similar to that of Lynton House, Ambleside, Wingfield and Merry Acre. Very different considerations would arise if, as suggested by Mr Rutland, the proposed development involved the combination of a number of existing plots and their sub-division into a significantly greater number. The resulting character of the estate would then be fundamentally different. If planning permission were granted for such development and an application made to this Tribunal, a favourable decision on the current application would not, in my judgment, serve as a material precedent that would influence the Tribunal's conclusion.

78. I have concluded that the proposed development would result in some short-term disruption and increased road maintenance costs in the short term. In the long term it will cause limited interference with the existing views from the objectors' properties; a minor loss of privacy for one of them; an insignificant overshadowing effect; no material effect on drainage provided the suggested alleviating measures are undertaken; no significant effect on the perceived density or spaciousness of the estate and no material long term increase in traffic or the level of road maintenance costs borne by each of the objectors. Finally, the modification of the restrictions would not constitute the thin end of the wedge, encouraging further applications to this Tribunal. It follows, in my view, that the continued existence of the restrictions does not secure any practical benefits of substantial value or advantage to those entitled to benefit from them. I further consider that money will be an adequate compensation for the loss or disadvantage which the objectors will suffer from the modification. The requirements of section 84(1)(aa) are therefore satisfied.
79. The applicants also rely on ground (c), namely that:

"the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction".

80. I have referred in paragraph 78 above to a number of minor disadvantages which I have found would be suffered by the objectors if the restrictions were modified. I do not consider that, taken together, these can properly be said not to injure the objectors. The applicants have therefore failed to substantiate ground (c).
81. I now turn to the sums of money which would be required to compensate the objectors for the loss or disadvantage which they will suffer from the proposed modification. I have found that they will suffer temporary losses whilst the new house is being built, in the form of noise, dust and increased traffic and road maintenance costs. In my view, the amounts payable to each of the objectors to compensate for these losses are as follows:

Lynton House	£5,000
Wingfield	£ 300
Merry Acre	£ 300
Little Barn	£ 300
Bayfield	£1,500
Forest House	£2,500

82. I accept Mr Bevans' opinion that none of the objectors' properties would be depreciated in value as a result of the proposed modification. Nevertheless, the resultant sense of loss felt by established residents of Brookside Avenue is likely to be greater than that which would be experienced by a prospective purchaser who had not lived in the road before the proposed house was erected.
83. I have referred to the interference with certain views and with the privacy of Lynton House. In addition, it is clear that the maintenance of the restrictions does confer a practical benefit on the objectors by eliminating the genuine anxiety that they would otherwise feel about the thin end of the wedge, even though I have found that anxiety to be unjustified. I conclude that a small payment of £2,500 per house to each of the objectors would be adequate compensation for such anxiety and that the total compensation payable for the permanent losses suffered by the objectors should be as follows:

Lynton House	£7,500
Wingfield	£2,500
Merry Acre	£2,500
Little Barn	£2,500
Bayfield	£3,250
Forest House	£4,500

84. The requirements of ground (aa) having been satisfied, I have jurisdiction to modify the restrictions. I am satisfied that I should exercise my discretion to modify them. Accordingly, I order that the restrictive covenants in the conveyances dated 4 June 1931 and 12 March 1958 shall be modified so at to permit the erection of a detached house on the application site, in accordance with the planning permission dated 31 October 2001 or any subsequent permissions which are the renewal of that permission and including the external facing materials and landscaping of the site as approved pursuant to condition 2 thereof. I do not consider it necessary to impose any further conditions. An order to that effect will be made by the Tribunal provided, within three months of the date of this decision, the applicants shall have supplied to each of the objectors a drainage undertaking along the lines referred to in paragraph 71 above and paid to the owners of each of the objectors' properties the following sums as compensation:

Lynton House	£12,500
Wingfield	£ 2,800
Merry Acre	£ 2,800
Little Barn	£ 2,800
Bayfield	£ 4,750
Forest House	£ 7,000

85. A letter on costs accompanies this decision, which will take effect when, but not until the question of costs is decided.

Dated 8 December 2003

N J Rose FRICS

ADDENDUM ON COSTS

86. I have received written submissions on costs, from counsel on behalf of the applicants and from the respective solicitors on behalf of the objectors.
87. The applicants pointed out that they made sealed offers on 14 November 2002 totalling £38,000, compared with the Tribunal's total award of £32,650 and that those sealed offers exceeded the compensation awarded in every case apart from Lynton House, where the offer was exceeded by only £2,500.
88. The applicants' primary case was that they should pay the objectors' costs up to the date of the sealed offers and that the objectors should pay the applicants' costs after that date. The alternative order contended for by the applicants recognised the fact that, in the case of Mr and Mrs Malkin, they had not offered enough. It was that the applicants should pay the objectors' costs up to 14 November 2002, plus 20% of the costs of the five objectors represented by Heppenstalls after that date. The remaining four objectors represented by that firm should be responsible (along with Mr and Mrs Barber who were represented by Scott Bailey) for 80% of the appellants' costs after the date of the sealed offer.
89. The applicants submitted that their contentions could be justified by the following factors. In all cases except the Malkins, the sealed offers exceeded the compensation awarded; the offer to the Malkins was on the borderline and, overall, the applicants offered more to the objectors than they were awarded; none of the objectors was interested in money or a negotiated settlement as their objective, in which they failed, was to prevent any development on the application site; had the Malkins asked for another £2,500 in November 2002 the applicants would probably have paid it; in fact each of the objectors tried to warn off the application at the outset by claiming £100,000 in their notices of objection; the application for a modification was neither difficult nor borderline and the objectors were unreasonable to have taken it to a hearing; the exaggeration of the objectors' monetary claims (£180,000 compared with £32,650 awarded) was consistent with their inflated claims in relation to long term loss of amenity; the unlikelihood that the thin end of the wedge argument would succeed.
90. Heppenstalls submitted that Mr and Mrs Malkin should have all their costs, having beaten the sealed offer and that the applicants should pay 50% of the remaining objectors' costs in view of the fact that the application on ground (a) – which was a matter of extreme importance and concern to the objectors – was not withdrawn until 21 October 2003, one week before the hearing.
91. Whilst the compensation awarded, with one exception, fell short of the amounts offered in November 2002, the awards were only slightly more than the sealed offers. The objectors had been neither unreasonable nor hostile. They were entitled to the benefit of a covenant that had preserved a small estate for many decades and the only way to try and maintain the status quo was to oppose the application, particularly as the very existence of the covenants was being attacked until 21 October 2003. A written request to the applicants' solicitors to confirm that they were not going to pursue the part of the application seeking to discharge the covenants was made on 28 April 2003, but was rejected on 12 May 2003.
92. For Mr and Mrs Barber, Scott Bailey said that the residents were concerned to protect the privacy of their estate and to ensure that the covenants, which were properly and reasonably imposed in the first instance, remained binding. The applicants were not prepared to withdraw and the residents had no option but to protect their position. It was not until 21 October 2003, only a few days before the hearing, that the applicants' solicitors advised that they were no longer seeking to have the covenants discharged. A considerable amount of preparation had been undertaken by Mr and Mrs Barber's advisers, who considered not only the objection to the application to modify, but also the application to discharge and it was not appropriate for the applicants simply to drop the matter at the last minute and not expect to suffer some burden in costs. Mr and Mrs Barber had acted responsibly. If there should be an order for costs against the objectors, the applicants should bear at least half their own costs.
93. The sealed offers made on 14 November 2002 merely stated the amounts of compensation that would be paid to each objector. Although the offers were expressed to be made unconditionally, the letters did not state that they could be accepted in return for agreeing only to the modification of the covenants. I therefore caused a letter to be written to the parties on 6 January 2004 stating that, since the offers were made at a time when the applicants were still pursuing their application to discharge the covenants, I was at present inclined to the view that there had been no effective offers of compensation based only on the modification subsequently ordered by the Tribunal.
94. I invited further comments on the matter. As a result, the applicants submitted copies of letters which had been sent to the objectors on 13 November 2002, marked "without prejudice save as to costs". The amounts offered therein were identical to those contained in the sealed offers made on the following day, but were expressly stated to be on the basis that "the covenants in question should be modified as asked".
95. I am satisfied that the offer letters of 13 November 2002 ought properly to be taken into account when determining the costs of the application. By pursuing their objections to a hearing, all the objectors except Mr and Mrs Malkin have obtained a less satisfactory result than if they had accepted the offers.
96. The approach to be adopted when awarding costs in cases of this nature was considered by the President, George Bartlett QC in Re Norfolk and Norwich University Hospital NHS Trust (LP/41/2001, unreported) in the following terms, with which I respectfully agree:

"In any application for costs in a contested section 84 case it is important to bear in mind the nature of the proceedings. In such proceedings the applicant is seeking to have removed or reduced rights which were conferred on the objector or his predecessors by force of contract. If an objector successfully resists such an application he will usually be awarded his costs. The converse, that a successful applicant should normally receive his costs, does not, however, apply. An unsuccessful objector may be ordered to pay part or all of the applicant's costs; or there may be no order as to costs; or he may receive part or all of his costs where, although the covenant is ordered to be discharged or modified, compensation is awarded to him. Which of these courses is followed by the Tribunal will depend principally on the nature and degree of the applicant's success and the conduct of the parties. In exercising its power to award costs the Tribunal will always bear in mind the nature of the proceedings, which must ordinarily put an objector in a more favourable position in relation to costs than the unsuccessful party in ordinary civil litigation."

97. Against that background, I consider that Mr and Mrs Malkin are entitled to all their costs, in view of their success in beating the sealed offer. The remaining objectors failed to do so. The differences between the sums offered and those eventually awarded, however, are small. Moreover, in my judgment the objectors' case, while unsuccessful, was far from hopeless and I do not consider that any of the objectors acted unreasonably in resisting what amounted to the compulsory acquisition of their private rights. Accordingly, the applicants will pay all the costs of Mr and Mrs Malkin. They will also pay the costs of the remaining objectors incurred up to 13 November 2002. Such costs are to be agreed or, in default of agreement, assessed on the standard basis by the Registrar of the Lands Tribunal in accordance with the Civil Procedure Rules. Otherwise I make no order as to costs.

Dated 3 February 2004

N J Rose FRICS