England and Wales Lands Tribunal

[2004] EWLands LP_26_2003 (18 October 2004)

LP/26/2003

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT –restriction requiring construction to conform to building line – application to amend this limitation to permit erection of one house in garden at rear of existing house –– whether erection of garages and sheds breaches covenant requiring dwellinghouse use only – whether any such breach amounts to acquiescence in further breaches – whether restriction obsolete – whether injury to objectors –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

B Y

CAMSTEAD LIMITED

Re:

Land at the rear of

22 St Andrew's Road

Cambridge CB4 1DL

Before: N J Rose FRICS

Sitting in public at Cambridge County Court

On 8-10 September 2004

The following cases are referred to in this decision:

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

Gilbert v Spoor (1982) 44 P & CR 239

Harlow v Hartog [1978] 1 EGLR 112

The following cases were also cited:

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

Re Briarwood Estates Ltd (1979) 39 P & CR 419

Re Da Costa's Application (1986) 52 P & CR 99

Re Fisher & Gimson (Builders) Ltd's Application (1992) 65 P & CR 312

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

Re Gossip's Application (1972) 25 P & CR 215

Re Zopat Developments' Application (1966) 18 P & CR 156

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

Re Bushell's Application (1987) 54 P & CR 386

Re Gaffney's Application (1974) 35 P & CR 440

Re Doig's Application (1980) 41 P & CR 261

In Diggens' Application (No2) [2001] 2 EGLR 163

Re Davis' Application (1950) 7 P & CR 1

Re Escritt's Application (1954) 7 P & CR 134

Re Ling's Application (1956) 7 P & CR 233

Re F&H Joyce Ltd's Application (1956) 7 P & CR 245

Re George Read (Builders) Ltd's Application (1956) 7 P & CR 227

Re Hathway's Application (1968) 20 P & CR 505

Russell v Baber (1870)18 WR1021

Investors Compensation Scheme Limited v West Bromwich BS [1998] 1 WLR 896

McMorris v Brown [1999] 1 AC 145

Re Steven's Application (1962) 14 P & CR 59

Re Sheehy's Application (1991) 63 P & CR 95

Ridley v Taylor [1965] 1 WLR 611

Antaios Compania Naviera SA v Salen Redeiarna AB [1985] AC 191

Osborne v Bradley [1903] 2 Ch 446

Re Hamden Homes Ltd's Application, LP/38/1999, unreported

Re Al-Saeed's Application, LP/41/1999, unreported

Barry Denyer-Green, instructed by Hewitsons, solicitors, of Cambridge for the Applicant.

Professor Michael Chisholm, with permission of the Tribunal, for the Objectors.


 


DECISION

Introduction

1. This is an application by Camstead Limited ("the applicant") under section 84 of the Law of Property Act 1925 ("the Act"), seeking the modification of certain restrictive covenants. The covenants affect freehold land forming part of the rear garden of a dwellinghouse known as 22 St Andrew's Road, Cambridge, CB4 1DL ("the application site").
2. The restrictions in question were imposed in a conveyance dated 13 July 1912 by Annie Elizabeth Benson, Herbert Pennington and Edward Benson to George Clark and Frederick Clark. The land in question ("the burdened land") had a frontage of 139 feet to the south-east side of St Andrew's Road and a depth of some 180 feet. The conveyance contained, among others, the following covenants by the purchasers:

"2. No house or building shall be erected on the said plot of land which does not front to St Andrew's Road or which shall be nearer to the front boundary line than the building line shown on the said plan and the front of any house or building shall not be set further back from the front boundary than such building line.

3. The Purchasers shall not erect or build upon the said plot of land any building or erection other than a private dwellinghouse or private dwellinghouses with the exception (at the option of the Purchasers their heirs or assigns) of one shop to be situated at the north-west corner of the said plot of land having a frontage not exceeding thirty feet to St Andrew's Road aforesaid each such dwellinghouse not to be of less gross value than £220 for detached houses and £200 for semi-detached or terrace houses and such value shall be estimated by the amount of the first net cost in materials and labour of construction estimated at the lowest current prices."

3. In September 2000 the applicant submitted a planning application, seeking planning permission for the erection of four dwellings with integral garages on part of the rear gardens of 22, 24, 26 and 28 St Andrew's Road. The submitted plans showed detached houses at the rear of Nos. 22 and 28 and a pair of semi-detached houses at the rear of Nos. 24 and 26. The burdened land includes the sites of Nos.22 and 24 but not 26 and 28. The application was approved, subject to certain conditions, on 15 November 2000. The applicant now seeks the modification of the relevant restrictions so as to permit the erection of a single detached dwellinghouse with integral garage on the subject land. The owners of Nos. 24, 26 and 28 do not wish to sell the relevant parts of their rear gardens to the applicant, but it is agreed that the restrictive covenants are the only obstacle preventing the construction of a single house on the subject land.
4. It is agreed that the objectors represented at the hearing – all of whom live on the south-east side of St Andrew's Road – are entitled to the benefit of the restrictions. They are Mr and Mrs T R Holt (26), Mr and Mrs S Eggo (28), Mr A F Bailey and Mrs R A Evans-Bailey (30), Mr P Learoyd (32), Mr and Mrs M Lown (34), Mr B Forsyth (40), Mr and Mrs D L Andrews (42), Mr and Mrs M E Lumsden (44), Mr and Mrs Childerley (46), Mr A G Metcalfe (50), Mrs K Arrandale (52) and Ms R Jones (54).
5. At the hearing Mr Barry Denyer-Green of counsel appeared on behalf of the applicant. He called two expert witnesses, both of whom are with Carter Jonas LLP of Cambridge and elsewhere. They were Mr P G D Cooke-Priest, MA FRICS, who is a consultant to that firm and Mr M C Hallam, BSc FRICS, whose evidence was mainly limited to the market values of properties in the St Andrew's Road area. Professor Michael Chisholm appeared for all the objectors with permission of the Tribunal and called one expert witness, Mr J E Pocock, FRICS, a partner in Pocock and Shaw of Cambridge and elsewhere. He also called the following objectors as witnesses of fact: Mr Holt, Mr Eggo, Mr Learoyd and Mrs Arrandale. On 19 August 2004, in company with the three experts, I inspected the application site and the surrounding area, including certain properties owned by the objectors.

Facts

6. Two statements of agreed facts were prepared. In the light of those statements and the evidence I find the following facts. The application site has a depth of approximately 27m and a width of approximately 8m with road frontage to Mariner's Way. Mariner's Way was constructed in 1971 along the south-eastern boundaries of the houses on the south-east side of St Andrew's Road. The distance between St Andrew's Road and Mariner's Way is approximately 65m.
7. The plots of land owned by the objectors fall within a block lying to the north of the application site, extending from 26 to 56 (even) St Andrew's Road. They all have an approximate depth of 55m and widths varying between 6m and 8m. They each contain a house – fronting St Andrew's Road – and a rear garden, with frontage to Mariner's Way. Single storey structures, in the form of garages, garden sheds or greenhouses have been constructed in the gardens of 32, 36, 40, 42, 44, 50, 52, 54 and 56 St Andrew's Road. The houses owned by the objectors vary in value between £270,000 and £360,000. 24 St Andrew's Road, which immediately abuts the application site to the north, has the burden, but not the benefit of the relevant restrictions.

Ground (a)

8. The application was made under paragraphs (a), (aa), (b) and (c) of sub-section 84(1) of the Act. Ground (b) was withdrawn during the course of the hearing. I consider each of the remaining grounds in turn.
9. Under paragraph (a) the issue is whether

"by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete."

10. Mr Cooke-Priest produced a number of ordnance survey maps to illustrate the changes which had taken place in the area surrounding the application site. In 1901 the immediate area was largely undeveloped. At that time St Andrew's Road was called Lovers Walk. On the north side of that road the land appeared to have been set out in plots and some dwellings had been built there. It also seemed that a substantial area of land to the west of Cam Road – located approximately 100m to the west of the application site – had been laid out for development with roads running parallel and at right angles to each other. A number of terraced and semi-detached dwellings had been built fronting Montague Road, further to the north, with three detached dwellings at one end and similar development had taken place on both sides of Humberstone Road which was parallel to Montague Road. These houses had plot depths of about 45m.
11. It was likely that the application site and much of the remainder of the undeveloped land in the area had been pasture with some market garden or small farm activity taking place on the drier areas. The application site and the immediately adjoining fields had probably been too wet for arable cultivation. There was a wood or orchard some 200m to the west.
12. By 1925, in addition to substantial residential development in the area, vacant land around St Andrew's Church to the north-east had become a recreation ground and a site to the north had been developed as "Granta Works", a factory making scientific instruments. Many of the houses between 22 and 56 St Andrew's Road had been built and land to the south had been developed for recreational purposes, with tennis courts and a bowling green as well as new boat houses by the river.
13. Thus, between 1901and 1925 there had been significant, mainly residential development of the area. Most of the houses that were built on both sides of St Andrew's Road were still in existence. They were modest dwellings, probably with three bedrooms on the first floor and two living rooms on the ground floor. The occupants in those days would have been middle-income group artisan families at the lower end of the range. The development to the west of Cam Road was of a higher quality and, although the plots were generally smaller, the houses were larger. Larger plots would have enabled the owners to undertake a limited measure of vegetable growing in their gardens, which would have been a common practice among artisans in 1912.
14. Mr Cooke-Priest then described the current character of the application site and neighbourhood. By the 1990s significant changes had taken place to the area. A new bridge was built over the River Cam in 1971, with the road linking to Cam Road which was renamed Elizabeth Way. This was part of an inner ring road system and carried heavy traffic. Mariner's Way was then built, parallel to St Andrew's Road, providing access to the rear of all the St Andrew's Road properties. On the south side of Mariner's Way, a new development – Capstan Close – of substantial detached houses was built in 1990 on land which in 1925 had been shown as tennis courts and a bowling green. Substantial garages with access from Mariner's Way had been built at various dates between 1970 and 1996 at the bottom of the gardens of Nos. 50 to 56 St Andrew's Road. Six new semi-detached houses had been built in 1999 on land at the rear of 16 to 20 St Andrew's Road. They were known as 30 to 40 (even) Mariner's Way. A block of six flats had been built, possibly in the 1970s, at the south-western end of St Andrew's Road. A development of 81 houses and 39 flats had just been completed on land to the north of the objectors' properties, including the site of "Granta Works". A substantial factory had been built (probably in the 1930s) alongside St Andrew's Road to the north-east of the objectors' properties, and to the north of this was a new office development. The motor tyre fitting depot at 20 St Andrew's Road had probably been in existence since the 1950s.
15. Economically, changes to the area had been very significant, particularly over the last 25 years with the great expansion of the electronics based industries centred on Cambridge following the early development of the Trinity College science park to the north of the city. The local area was situated directly between the city centre and the science park. The very substantial increase in demand for housing had led to very large increases in residential values and a trend towards much greater building densities, in accordance with government planning guidelines.
16. The gardens of 22 to 56 (even) St Andrew's Road were significantly larger than most in the area. However, this did not appear to add significantly to the value of the houses. Value was determined by the quality of the building and the extent of the accommodation. The St Andrew's Road properties, being older and of poorer quality, were generally significantly lower in value than the more modern houses in the area, and the houses to the west of Elizabeth Way.
17. Mr Cooke-Priest considered that the construction of Mariner's Way, providing road access to the rear gardens of the St Andrew's Road properties, was a major change of circumstances. It had permitted the construction of the six new dwellings at the rear of 16-20 St Andrew's Road and the construction of substantial garages at the rear of 50-56 St Andrew's Road. This would not have been physically possible in 1912. Moreover, at that time motor cars were very primitive and only available to a much higher socio-economic group than the potential purchasers of those houses. Rear access was now a valuable additional facility, but the relevant restrictions prevented building on the rear land. Modification of the covenant to permit a dwelling on the application site would not restrict the ability of other owners of plots in St Andrew's Road to build garages if they wanted to, provided the covenants were also modified to permit building on their land. Indeed, similar covenants had subsequently been imposed on, and then either released or breached by the owners of the majority of the houses between 24 and 56 St Andrew's Road, constructing garages or other buildings in the rear parts of their respective gardens. Now that there was rear access to the objectors' properties, the covenants preventing the construction of any building could not serve any useful purpose.
18. In Mr Cooke-Priest's opinion, a covenant imposed to create a building line along St Andrew's Road must be irrelevant and therefore obsolete insofar as it affected building along Mariner's Way, which did not exist when the covenant was imposed. A covenant imposed to restrict building density must have become obsolete because of the 50% increase in density which had already taken place and the much higher density standards prevailing close by. A change in the character of the neighbourhood had occurred, whereby build quality had become the value adding factor, not plot size. A covenant designed to maintain or add value to other land must be similarly obsolete if, as in the present case, it had ceased to be effective or necessary to achieve this.
19. At the commencement of his oral evidence, Mr Cooke-Priest submitted the following amendment to his expert report:

"It is now four months since I prepared this report and on reconsidering it, it does seem to me that the matter of density is not in fact covered by the covenant which makes no mention of the number of houses permitted. We are left with the imposition of a building line, the purpose of which is almost certainly to create or preserve a street layout in much the same way as the covenants imposed by the great London estates – Bedford, Portman, Westminster etc. in the days before town and country planning controls did this."

20. In the course of cross-examination, Mr Cooke-Priest accepted that many other factors had an impact on value in addition to size and building quality. He had been unable to discern any relationship between the value of a house and the size of its garden, but he accepted that this may simply have been the result of having considered an insufficient number of transactions.
21. Mr Hallam agreed with Mr Cooke-Priest's opinion that the neighbourhood of the application size comprised the developed area to the south east of Elizabeth Way.
22. Mr Pocock considered that the block which included the objectors' houses – that is, from 26 to 56 St Andrew's Road – constituted the "neighbourhood". I shall refer to this as "the benefited land". In his experience, most people used the term neighbourhood to mean the immediate surroundings of a property. The section of St Andrew's Road lying further to the south-west had for some time been much less appealing than the rest. This was due primarily to its proximity to Elizabeth Way, one of the city's busiest roads, the recent erection of a block of flats which were let, and the existence of a tyre depot at No. 20, which was a major "eyesore".
23. Although there had been a considerable change in the environment as a whole, the benefited land could be considered in isolation, both in terms of the relationship of its component properties with each other and within the area as a whole. Taken in isolation the immediate surroundings of each house in this group had probably not changed very much since the imposition of the covenant.
24. Professor Chisholm submitted that Mr Pocock was right to restrict the neighbourhood to the benefited land. He relied on the following expression of view by Professor Ernest Scamell in "Land Covenants" (1996):

"It is submitted that in the context of section 84(1)(a), and in the light of the approach adopted by the Lands Tribunal in its decisions thereon, 'neighbourhood' may be defined as an area of land in a locality which is sufficiently large to display a set of more or less homogeneous physical characteristics (usually in the form of the layout of the area, the type of its buildings and the use to which those buildings are put) of a kind which is noticeably different from the characteristics exhibited by the surrounding areas."

25. Professor Chisholm did not accept that the construction of Mariner's Way had rendered the restrictions obsolete. He relied on the First Schedule to the conveyance of 13 July 1912, which contained the restrictive covenants which form the subject of this application. Paragraph 5 read as follows:

"The Trustees [that is, the vendors] reserve the right of making at any time and from time to time any alterations in the mode of laying out the estate or roads and also to sell any other part or parts of the lands of the Trustees adjacent or near to the said plot of land either subject to any stipulations or restrictions differing from the stipulations and restrictions herein contained or free from any stipulations or restrictions as the Trustees shall from time to time think fit."

26. The Trustees, said Professor Chisholm, owned the land lying to the south-east of the burdened and the benefited land. They could therefore have built a road along the current route of Mariner's Way had they so wished. Consequently, the original purchasers under the conveyance of 13 July 1912 accepted the burden of the covenants in the knowledge that the situation along the rear boundary of the burdened land and the benefited land could well change at some future date.
27. Professor Chisholm submitted that the relevant restrictions meant that there should be one private dwellinghouse on each individual plot, irrespective of the size of the plot. Such a dwellinghouse could include appurtenant structures such as garages and sheds and must front onto St Andrew's Road in accordance with the building line. The covenant was intended to prevent the erection of dwellings on the rear gardens and thus to preserve the amenities arising from a collection of contiguous large gardens. He submitted that these original purposes could still be fulfilled and therefore the restrictions were not obsolete.
28. The following four issues between the parties arise under ground (a). Firstly, the extent of the relevant neighbourhood. Secondly, the changes, if any, that have taken place in that neighbourhood since the restrictions were imposed. Thirdly, the purpose or purposes for which the restrictions were imposed. Fourthly, whether the changes which have occurred since they were imposed, or any other material circumstances, mean that the restrictions ought to be deemed obsolete.
29. Professor Chisholm relied, when identifying the neighbourhood, on part of a submission by Professor Scamell, reproduced in paragraph 24 above. That submission continued as follows:

"The extent of the area comprising a neighbourhood will accordingly be a question of fact. It follows that there is no necessary correlation between the extent of the benefited and burdened land and the extent of the neighbourhood – although a rigidly imposed and reinforced system of restrictive covenant control has frequently produced a neighbourhood with clearly - defined characteristics. Depending upon the circumstances, a neighbourhood may extend to the whole of a large town or consist of a small enclave in the immediate vicinity of the application land or even be confined to two plots comprising the only benefited land".

30. I respectfully agree with those observations. In the course of cross-examination, Mr Pocock was asked whether he agreed with Mr Cooke-Priest's suggestion that the area to the south-east of Elizabeth Way, including St Andrew's Road and a number of other roads to the north and south of it, would be regarded as a neighbourhood. He replied that some people would so regard it. I accept that reply and find Mr Cooke-Priest's opinion on the extent of the neighbourhood is correct.
31. It follows, in my judgment, that the neighbourhood has changed significantly. From an area in predominantly agricultural use, it has become largely residential. The density of that residential development is significantly greater than the density of the housing that existed in 1912. Finally, the construction of Marnier's Way has produced access to the rear of the burdened and benefited land, which did not previously exist and whose precise location was unknown in 1912.
32. Although I have accepted most of Cooke-Priest's views on the changes which have occurred in the character of the neighbourhood, I do not agree that the construction of substantial garages at the rear of 50-56 St Andrew's Road is one of them. Mr Denyer-Green submitted, correctly in my view, that those garages were buildings erected in breach of restriction No.2. It does not follow, however, that the absence of any objections to the garages in the rear gardens of certain houses would amount to such acquiescence on the part of the objectors as would disable them from preventing the construction of a house or houses, arranged on two storeys plus a loft room, in those gardens. In my judgment, the effect of such a house on the objectors' amenities would be of an entirely different order from that of a single storey garage, and acceptance of the latter does not imply agreement to the former.
33. Mr Cooke-Priest suggested that the erection of the various structures in the rear gardens of the objectors' properties also constituted breaches of restriction No.3, in that they were not dwellinghouses. I do not consider that approach to be correct, since the term dwellinghouses was almost certainly intended to extend to appurtenant buildings (see Harlow v Hartog [1978] 1 EGLR 112).
34. It follows that the existence of various ancillary structures in the back gardens of the benefited land do not represent – as Mr Cooke-Priest suggested – "the abandonment of any rights in respect of those properties where garages and sheds have been built". Nor do they amount to a change in the neighbourhood or other circumstances which could render the restrictions obsolete.
35. I now consider whether the changes in the neighbourhood which I have identified mean that the restrictions ought to be declared obsolete. The meaning of that term was considered by the Court of Appeal in Re Truman, Hanbury, Buxton & Co Limited's Application [1956] 1 QB 261. Romer LJ said:

"I cannot see how, on any view, the covenant can be described as obsolete, because the object of the covenant is still capable of fulfilment, and the covenant still affords a real protection to those who are entitled to enforce it."

36. Mr Cooke-Priest's amended view was that the object of the restrictions was the creation of a street layout to St Andrew's Road, along the lines adopted by the great London estates. Under cross-examination, however, he agreed that those estates did far more to regulate the siting and design of properties to be constructed on their land than merely imposing a building line. In my judgment, if the original vendors had intended to create a street layout, they would not have imposed the form of restrictions that they did, which permitted the houses to be laid out in any way the purchaser desired, provided their frontages were on the building line.
37. Professor Chisholm submitted that one of the objects of the restrictions was to ensure that there should be only one dwellinghouse on each individual plot. Mr Denyer-Green rejected that suggestion. He pointed out, correctly in my view, that the covenant did not prevent the erection of a large house, occupying only part of the road frontage, on a much wider plot than those which have actually been constructed. If the owner then wished to build another, smaller, house on the same plot, for example to be occupied by an employee or an elderly relative, there would be nothing to prevent him doing so, provided the additional dwelling also complied with the building line and minimum cost requirements.
38. The object of the covenant, in my view, is plain. It was Professor Chisholm's second suggestion, namely to ensure that the houses (and possibly the shop) were built along the frontage to St Andrew's Road and not behind it, thus leaving the area behind those buildings free of development. Apart from the appurtenances to the houses fronting St Andrew's Road, the only development to have taken place immediately to the rear of the houses on the burdened and the benefited land consists of the six houses at 30/40 Mariner's Way. In respect of the remainder of the burdened land – that is, 22 and 24 St Andrew's Road – and from there in a north-easterly direction over a succession of sixteen houses on the benefited land, there are no houses behind the frontage houses.
39. Where modification only is sought, the question of obsoleteness falls to be considered in relation to the development that is proposed. The question therefore is whether the restrictions are obsolete in respect of the construction of one house on the application site. The object of the covenant, to prevent the development of the rear of the burdened and benefited land, is still clearly capable of fulfilment. The covenant is therefore not obsolete and the application under ground (a) fails.

Ground (aa)

40. Under ground (aa) the issue is whether the Tribunal is satisfied

"(aa) 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 so impede such user…

(1A) subsection (1)(aa) above authorises the discharge or modification of the 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."

41. It is agreed that the proposed development would constitute a reasonable user of the application site for a private purpose and that it is impeded by the continued existence of the restrictions. The applicant does not suggest that any question of public interest arises. 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.
42. Mr Pocock said that the long gardens of the houses on the benefited land, now with the benefit of rear access from Mariner's Way, made the houses particularly desirable to a special group of people who enjoyed a sense of space, light and relative privacy that was difficult to find in the central part of Cambridge. The gardens in the group provided quite a large number of trees, much greenery and a useful habitat for birds and wildlife. Most of the gardens had garages, sheds and other buildings which were all appurtenances to the houses and the existence of these buildings had not changed or demonstrably harmed the immediate environment. The combined gardens were very attractive. Whenever a property became available in central Cambridge with a larger than average garden, the demand was greater. Most buyers now had to accept smaller gardens, but that did not affect the desire and the increased demand for more space. Most of the objectors fell within this category and considered the open space to be of great value to them, so much so that each was prepared to forego a very substantial potential cash benefit to preserve the effect of the covenant. Planning permission had been granted to build houses at the rear of 22 to 28 St Andrew's Road. It was now reasonable to assume that a planning application to develop the remaining gardens fronting Mariner's Way would also be approved. Without the restrictions imposed by the covenant, each owner would potentially stand to gain very much more from the sale of part of his rear garden than the resultant loss in value of his house. The refusal of such a substantial net gain was an indication of the importance the present owners placed on the covenant in affording future protection to their immediate environment, and of the fact that the benefits could not be quantified in monetary terms.
43. The subject application related specifically to the land at the rear of No.22. A new house on that plot would certainly overlook Nos.22, 24 and 26. The owner of No.24 did not have the benefit of the covenant, but No.26 did. Although a property built to the rear of No.22 would be visible from many of the other houses in the group, Mr Pocock did not believe the construction of a property there would materially affect the saleability or values of those other houses. It would have a significant impact on No.26, but would be unlikely to prevent it from selling. The overlooking aspect, the visual impact and the reduction in light would probably result in a slightly less competitive market, but more importantly the majority of prospective purchasers would become very concerned as to what might happen in the garden immediately adjacent, No.24. The impact of a house being erected on that land would be much greater. Although the present application was to vary the covenant so far as it affected No.22, if a house were built in that garden the majority of prospective purchasers of No.26 would almost certainly assume that the same thing would happen to No.24 and this would make the purchase of No.26 far less desirable. Although it was very difficult to quantify the effect of such concern, Mr Pocock suggested that it would put off many potential purchasers and might easily result in a loss to the seller of £10,000 or more. If there were a variation of the covenant in respect of No.22 there was little doubt that it would be much more difficult to resist a similar variation for other houses. If the present application succeeded, it would have an impact on the value and saleability of No.26. It might also have a minor effect on others within the group, to the extent that prospective purchasers would be worried about a further continuation of development. He thought there would be a general view that variation of the covenant in respect of No.22 would increase the prospects of a similar variation for other neighbouring houses. Quite understandably, those who currently benefited from the covenant were extremely concerned about the "thin end of the wedge". They were strongly opposed to the present application, not only because of its immediate impact on their surroundings, but also because they wanted to ensure that the "status quo" was maintained and that people, including the present applicant, were deterred from making further applications in respect of the gardens of other houses. There was, in his opinion, no doubt that the covenant was preserving the relatively unusual character of this confined area and its removal would result in a significant change to the environment.
44. Mrs Arrandale suggested that if a house were built on the rear part of the garden of No.22, it would need to be raised to avoid flooding, causing greater visual intrusion and loss of light that would otherwise be the case. In cross-examination, however, she accepted that No.22 did not lie within the flood plain and that, considered on its own, a new building confined to the rear garden of No.22 would not cause her concern.
45. Mr Cooke-Priest accepted that the occupiers of the proposed dwelling would be able to overlook the immediately adjoining gardens (No.24) to some extent and to a much lesser extent the garden one removed from that dwelling. Similar overlooking already existed from the rear windows of the houses fronting St Andrew's Road. The construction of dwellings along the Mariner's Way frontage would inevitably increase the extent of overlooking, but not very significantly. 20 St Andrew's Road, immediately to the south of No.22, was a motor tyre depot and not a dwelling. No.24 was not entitled to the benefit of the covenant and the overlooking of No.26 would be minimal as there would be no side windows in the dwelling proposed. The overall density of all the houses between St Andrew's Road and Mariner's Way would increase from 33 to 34 per hectare. This was a marginal increase and, in any event, higher building density was not a factor affecting value. Since differences in values reflected market demand, the slightly lower density which would be secured by maintaining the status quo could not be seen as a practical benefit.
46. Noise disturbance to residential property could come about from other residential property, but modern construction standards minimised this, unless it was a consequence of inconsiderate behaviour by the other occupiers. The planning consent for the proposed new dwelling house on the application site required the installation of acoustic double glazing and mechanical ventilation "to ensure that the occupiers have protection from nearby sources of noise such as traffic noise from Elizabeth Way and noise from the garage workshop on St Andrew's Road". The houses on the benefited land were not built to such standards and any normal domestic noise was likely to be more audible if emanating from the existing houses than from the proposed new house. Noise arising from inconsiderate behaviour was not a matter which could be controlled by the application and enforcement of covenants other than those specific covenants common in leases of flats. Whilst the addition of another household would obviously add to the possibility of an inconsiderate family coming to the area, that possibility was so remote that it could not be said that the impeding of the proposed user conferred any practical benefit on the owners of the benefited land in this respect. Mr Cooke-Priest accepted that it was possible that some hypothetical purchasers of 26 St Andrew's Road would not be in the market if there were a house on the application site. However, the demand for housing in Cambridge was so strong that the removal of one or two possible purchasers from the market would probably not have any effect on value. If there were any effect it would be limited to one bid in negotiations – perhaps £500 or £1,000.
47. As any noise disturbance was more likely to emanate from existing houses, the tyre depot adjoining 22 St Andrew's Road or Elizabeth Way, there seemed to be no practical benefit to the occupiers of houses on the benefited land in retaining the covenant in order to prevent noise.
48. Mr Cooke-Priest did not think that the proposed modification would result in any reduction in the value of any properties on the benefited land, with the possible minor exception of No.26. Indeed, if the restrictions against erecting houses in the rear gardens were removed in respect of all the benefited land, all the properties on it would increase substantially in value by reason of the hope of planning permission (and the existing permission in respect of Nos.24, 26 and 28 St Andrew's Road) for new dwellings along Mariner's Way. On a sale of any of these properties, any competent estate agent would advise the vendor first to seek planning permission for a new dwelling on the rear land or, if that was not practical for any reason, to seek bids from builders and developers as well as potential owners/occupiers. It was reasonable to assume that the owner of a benefited plot or his heirs could benefit at some future date from the modification or removal of the covenant and meanwhile chose not to do so. In such circumstances, an interim payment would be adequate compensation if the covenant were modified so as to benefit another owner's plot.
49. Mr Cooke-Priest referred to the pleasant views, whose preservation had been put forward by most of the objectors and more specifically by the owner of No.52. He produced photographs to show that generally the views were self contained within the individual properties and consisted of the garden of the particular property and the gardens of the two adjoining properties. There were no views beyond the rear gardens of the properties, apart from limited views to the tops of the houses in Capstan Close on the south-eastern side of Mariner's Way.
50. As for the claim that the covenant prevented overlooking, he produced photographs which showed that the garden of each property was overlooked by its immediate neighbour, particularly from the first floor where the windows faced directly over the gardens. The approved plan of the proposed new dwelling showed that the first floor window closest to the adjoining property was a bathroom window to be fitted with obscured glass. The only overlooking, therefore, would be from the first floor bedroom window furthest from the adjoining property. This would not affect No.26, or any of the other objectors' properties. Possible overlooking from the ground floor of the proposed new house would be prevented by fencing. It was also a planning condition that no development should be started until the planning authority had approved the position, design materials and type of boundary treatment to be erected.
51. Certain of the objectors had claimed that the existence of the covenants preserved the character of the benefited land as a vital pocket of green space. Whilst the benefited land did contain a substantial green area of mature gardens, whether this was necessary or vital was a planning issue. Had it been so considered by the local planning authority, planning permission would have been refused. There was, however, a significant green area running all along the river Cam from the Backs through Jesus, Green and Midsummer Common and the area of Logans Way (very close to the benefited land) and on to Stourbridge Common. In those circumstances it was difficult to describe the benefited land as either vital or necessary as green space.
52. Mr Cooke-Priest then dealt with the claim made by various objectors that the proposed modification would constitute the thin end of the wedge. He considered that the covenants affecting 16-24 St Andrew's Road had already effectively been modified by the construction of 30-40 Mariner's Way. The construction of a further house at the rear of 22 St Andrew's Road was simply a modest extension of this. He accepted that modification in respect of the application site would tend to make modification in respect of other back gardens forming part of the benefited land a little easier to achieve in the future. However, the acceptance of extensive building of sheds and garages which were expressly forbidden by the covenant must surely indicate the abandonment of any rights in respect of those properties where garages and sheds had been built. Even if the covenant were completely removed it did not compel anyone to build a house at the bottom of his or her garden if he did not wish to do so. The objectors would remain at liberty to retain their gardens as they presently existed.
53. Messrs Holt, Eggo and Learoyd said that they or their predecessor in title had each received several approaches from the applicant who wished to purchase the bottom half of their garden. Mrs Arrandale had received a similar approach from another developer about nine years ago. In the course of cross-examination Mr Hallam said that, if the restrictive covenants preventing the implementation of the planning permission dated 15 November 2000 were modified, the owners of Nos.26 and 28 could each expect to receive a net payment of approximately £50,000 for the rear section of their garden and the consequent reduction in the value of the remaining property would be about £10,000 in each case. I accept that evidence, which takes into account the fact that the applicant owns a narrow ransom strip abutting Mariner's Way along the rear of 22-28 St Andrew's Road. 26 and 28 St Andrew's Road are subject to virtually identical restrictions to those on the application site. By objecting to the current application, therefore, the owners of those properties are both jeopardising their chances of obtaining a potential net profit of about £40,000.
54. It might be argued that the restriction cannot be said to secure to those two objectors any practical benefits of substantial value or advantage to them, because their properties would have a higher value with the covenant modified than they do with the covenant in place. It is clear from the Court of Appeal judgment in Gilbert v Spoor [1983] 1 Ch 27, however, that any such argument would be incorrect. In that case Eveleigh LJ said

"The words of the subsection, in my opinion, are used quite generally. The phrase 'any practical benefits of substantial value or advantage to them' is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather to a restriction which secures any practical benefits. The expression 'any practical benefits' is so wide that I would require very compelling considerations before I felt able to limit them in the manner contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effects upon a broad basis."

55. With that in mind, I now consider the various concerns about the possible adverse effects of the proposed modification which were expressed by the objectors. Those effects included: loss of light, loss of privacy, loss of a vital pocket of open space, loss of a sense of space, loss of a habitat for birds and wildlife, adverse visual impact, change in character of the area, disruption during the construction period and the thin end of the wedge. All these matters must be considered bearing in mind that the proposal is only for a single house to be constructed on the application site.
56. On that basis, and setting the thin end of the wedge on one side, I find that the effects of the proposed development on the application site would be limited. In reaching that conclusion I have borne in mind, in particular, that the application site occupies only a small proportion of the total green space behind St Andrew's Road; that in general the rear view enjoyed by each objector is limited to his own garden and those of his two immediate neighbours and that there are limited views beyond the rear gardens of the objectors' properties; that the overlooking effect, the reduction in privacy and the long-term noise resulting from the proposed new house would be minimal and that the planning consent contains conditions regulating the method and hours of construction which should help to protect the amenity of adjoining properties and nearby trees during the construction period.
57. I now turn to the thin end of the wedge. Mr Eggo, Mr Learoyd and Mrs Arrandale all said that the proposed modification, if ordered, would constitute an unwelcome precedent which could adversely affect their houses. Mr Eggo of 28 St Andrew's Road put it this way:

"If further houses were to be built at the bottom of 24, and then 26 St Andrew's Road, the effects would be much more intrusive. Firstly all the trees would have to be removed, the houses would cause a significant loss of sunlight, especially in the afternoon. In winter nearly all the afternoon sun would be lost. The open skyline would completely disappear towards the southeast.

If the covenant were removed the new houses would start their inevitable march along the backs of our gardens. For each house built, the close neighbours lose their views, their tranquillity and their privacy. Inevitably since their quality of life has been reduced they would sell up and move on. The next house is built and so the new houses march on pushing the current residents before them. Please retain the covenant and allow it to protect us and our homes."

58. Mr Cooke-Priest's response to this concern was three-fold. Firstly, he suggested that the benefit of the covenant had been abandoned by the owners of those properties which contained garages and sheds. I have explained above why I consider that opinion to be based on an incorrect understanding of the legal position. Secondly, he argued that none of the objectors would be forced to build a house at the bottom of his or her garden if the relevant restrictions were removed from all the burdened and benefited land. That is, no doubt, true, but it does not serve to allay the concern expressed by Mr Eggo – which I find to be justified – that the construction of a house on a property immediately adjoining that of an objector who does not wish the rear garden to be built upon would adversely affect the quality of that objector's life. Finally, Mr Cooke-Priest suggested that the covenants on most of the burdened land had already been effectively modified by the construction of 30 to 40 Mariner's Way in the gardens of 16 to 20 St Andrew's Road. That argument would have considerable force if the development had been agreed to by the objectors in the knowledge that it would breach the covenant, or if the restrictions had been modified by this Tribunal. In fact, the objectors were not aware that 16 to 20 St Andrew's Way were subject to the restriction until the new houses had been completed and no application was made to this Tribunal to modify the covenant.
59. No evidence was called by the applicant to explain the circumstances of that breach of covenant. The only evidence on the matter was given by Mr Pocock, based on his professional experience. He said that, in the absence of the formal modification or discharge of the restriction, the applicant must have provided the purchasers of each of the new houses with an indemnity from an insurance company, which would compensate them for losses incurred if the beneficiaries of the covenant subsequently sought to exercise their legal rights. Mr Pocock added that such insurance cover could only be obtained if the applicant had had no previous contact with the beneficiaries. I accept Mr Pocock's evidence on this point. In the course of closing submissions, Mr Denyer-Green fairly accepted that, by the time the objectors first became aware that the construction of 30 to 40 Mariner's Way represented a breach of covenant, the houses had been completed and it was probably too late for them to obtain an injunction requiring their demolition.
60. Against that background, I do not consider that the applicant should be permitted to use 30 to 40 Mariner's Way successfully to argue that the thin end of the wedge consideration does not apply to the current application. In my judgment, the Tribunal should be slow to permit an applicant to take advantage of its own previous breach of covenant in this way. I consider that Mr Eggo's suggestion that the current application, if successful, will inevitably result in houses being constructed along the backs of all the objectors' gardens slightly overstates the position. Nevertheless, in the light of all the evidence I find that the chances of planning permission being granted for such development are high and that the proposed modification would provide the applicant with a strong argument to support further modifications of the covenants which – subject to minor difference of detail – burden all the benefited land. I also find that Mr Eggo's concerns as to the likely "domino effect" of such modifications are well founded. In my judgment it follows that, in preventing a development which would have some adverse effect, and in eliminating the prospect of future developments which would arise from further modifications of similar restrictive covenants which burden the benefited land, the restrictions do secure to the objectors practical benefits of substantial value or advantage to them
61. As for subsection 1B, in my view the provisions of the development plan and the other matters referred to do not have the effect of removing the benefits of substantial advantage that are secured by the restriction.

Ground (c)

62. The issue under para (c) is whether the Tribunal is satisfied

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

63. In view of my findings on ground (aa), it is clear that the proposed modification would injure the objectors. Ground (c) is therefore not made out.
64. As the applicant has not succeeded in establishing any of the grounds relied upon, the application is dismissed.
65. A letter on costs accompanies this decision which will take effect when, but not until, the question of costs is decided.

Dated 18 October 2004

N J Rose FRICS