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Cite as: [2005] EWLands LP_32_2003

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LP/32/2003

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANTS – modification – proposed house on garden land in cul-de-sac development – restrictions preventing this – held practical benefits but not of substantial value or advantage – £500 compensation awarded to each of three objectors – Law of Property Act 1925 section 84(1) ground (aa)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

BY

JOSEPH AND KAYLET CHOJECKI

Re: 1 St Michael's Gardens

Winchester

Hampshire SO23 9JD

Before: The President

Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL

on 18 March 2004

Mark Sefton instructed by Neale Turk, solicitors of Fleet, for the applicants

Dr Michael Arnheim, instructed by direct public access, for the objectors

No cases are referred to in this decision.

The following cases were referred to in argument:

Gilbert v Spoor [1983] 1 Ch 27

Re Lee's Application (1996) 72 P & CR 439

Re Felton Homes Limited's Application LP/3/2003 (unreported)

Re Kershaw's Application (1975) 31 P & CR 187

Re Banks's Application (1976) 33 P & CR 138

DECISION

The applicants in this case, the owners of 1 St Michael's Gardens, Winchester, seek the modification of restrictive covenants so as to enable the construction of an additional house and a garage on their land. The objectors are the owners of three of the thirteen other houses in St Michael's Gardens. In an earlier decision under subsection (3A) of section 84 of the Law of Property Act 1925 I gave directions that these objectors should be admitted and that objectors in the other houses should not be admitted as they were not entitled to the benefit of the covenants.

St Michael's Gardens is a cul-de-sac that runs east of St Cross Road, about 400 metres south of the High Street in the centre of Winchester. It was formerly the site of a large rectory standing in grounds of, I think, just less than an acre and it was developed in or about 1972, following its sale by the church to a developer. The development consisted of two blocks of 2-storey maisonettes, numbers 1 and 2 and numbers 12 to 15, on the entrance corners from St Cross Road, and two terraces of 3-storey houses, numbers 3 to 7 on the northern side of the cul-de-sac and numbers 8 to 11, set at right angles to these at the eastern end of the cul-de-sac. The applicants' house, originally the maisonettes numbers 1 and 2, has been converted into a single house.

In November 2001 Winchester City Council resolved to grant full planning permission subject to conditions for the erection of a single 2-bedroom dwelling with parking space and the demolition of the existing double garage and the erection of a new single garage between the applicants' house and number 3, the first of the terrace of houses to the east. The council said that, before it issued the permission, it required an agreement under section 106 of the Town and Country Planning Act 1990 to ensure that the occupants of the house should not benefit from on-street parking permits and to provide for a contribution to the council's open space funding system. The agreement has not yet been entered into, so that the planning permission has still not been issued.

The distance between the east wall of number 1 and the west wall of number 3 is rather less than 20 metres, and the depth of the site to be developed is between 21 and 17.5 metres. There is a close-boarded fence along rear of the site, and beyond this, to the north, is a residential development, very recently completed, referred to as The Friary, on the site of a former nursing home standing in large grounds. Part of this development consists of a staggered terrace of eight 3-storey houses to the north of the proposed development site and numbers 3 to 7 St Michael's Gardens. The nearest corner of the new terrace is between 5 and 6 metres from the site.

The land slopes down to the east from St Cross Road. The 3-storey terrace comprising numbers 3 to 7 St Michael's Gardens is set into the land at its western end, so that its roofline is at about the same level as that of number 1. The houses in the terrace have small rear gardens backing onto The Friary development. At the front of the terrace and on the southern side of the cul-de-sac are a number of trees, some of them, including a cedar, of substantial size. The front façade of the terrace is about 6 metres forward of the front façade of number 1 and the road is thus slightly angled across the proposed development site. At the front, south-eastern, corner of the site are two Norway maples. The rest of the site, except for the garage that is to be demolished, is grassed over. It previously contained a large cedar, but this was felled in about 2001 after a branch had come down in a storm, causing damage to the garage.

The applicants' predecessors in titled acquired the 999-year leases of the two maisonettes that had been granted in 1972 and then, on 12 May 1988, they acquired the freehold of both premises, including therefore the site of the proposed development, from the freehold owners of St Michael's Gardens. The conveyance was subject to a number of restrictive covenants, including the following:

"(2) The Purchaser will not place or park any caravan or house on wheels or other obstruction other than of an ornamental character and will not erect any buildings on or over the gardens or yards of the property hereby conveyed shown edged green on the plan annexed hereto.

(3) Not to use the gardens or yards edged green on the plan other than as garden land and to keep the same and every part thereof (except such parts as are laid out as passageways) at all times properly maintained and free from weeds and generally cultivated and tidy.

(4) The Purchaser will not use the property hereby conveyed or any part thereof or suffer the same or any part thereof to be used otherwise than for the purpose of a single private dwelling."

The applicants now seek the modification of these restrictions to enable development to be carried out in accordance with the planning permission that the local planning authority resolved to grant in November 2001. They seek modification on ground (aa) of section 84(1) of the Law of Property Act 1925. The objectors are the owners of numbers 6, 8 and 10. Evidence on behalf of the applicants was given by Richard Edward Meeson FRICS, a partner in Dreweatt Neate based in Winchester, and for the objectors by Dr Russell Burdekin, the owner (with his wife) of number 10. On 23 March 2005 I carried out a site inspection accompanied by the two witnesses. The description I have given of the application land and its surroundings is based on their evidence and my inspection.

Mr Meeson said that since 1998 he had been head of the survey and valuation department of Dreweatt Neate at Winchester, carrying out valuations and surveys on a wide range of residential property throughout Hampshire. He said that recent development in the immediate vicinity had changed the character of the area from medium to high density. In particular, four modern town houses had been constructed on the opposite side of St Cross Road, and the terrace of town houses in The Friary development were very close to the rear gardens of numbers 3 to 7 St Michael's Gardens and had windows and balconies that overlooked them. The view in virtually every direction was of houses and flats. The proposed development on the application land was small in scale, with a roof that was lower than the neighbouring buildings and dipped to reduce the mass of the building. In his view the replacement of the existing double garage would have minimal detrimental effect on the feeling of open space within St Michael's Gardens. It would not be visible from the objectors' houses, and his conclusion was that there would be no detrimental effect on their value. He disagreed with the suggestion that the Norway maples at the front of the site could not survive if the house was constructed behind them, and he said that, properly managed, they would not present a problem in terms of light.

Dr Burdekin said that he and his wife had moved in to 10 St Michael's Garden in 1987 on a 999-year lease and that they bought the freehold in 1995. St Michael's Gardens was within walking distance of the city centre, offered a pleasant ambience and reasonable privacy and was well maintained. When it was built it was a type of development that was new to Winchester. The garden of number 1 was the most extensive, and, until 2001, it had contained a large old cedar tree that was damaged in a storm and subsequently felled. It was a fine specimen, which was now missed. He and the other residents were concerned that the Norway maples might be lost during construction of a new house or afterwards, since those living there would find that they blocked out light. The gardens of The Friary had contained a number of trees that were felled for the new development, so that the area was previously a lot more leafy. He considered that the detrimental impact of that development could be alleviated by planting along the fence at the back of the application land. He produced a statement signed by residents of St Michael's Garden which said that they objected to the building of the proposed house, which would result in the loss of most of the garden and greenery in that area and would irreversibly change the character of St Michael's Gardens for the worse.

The questions that arise under ground (aa) are whether the restrictions impede some reasonable user of the land; if so, whether in doing so they secure to the objectors any practical benefits; if so, whether those practical benefits are of substantial value or advantage to them; and if not, whether money would be an adequate compensation for any such loss or disadvantage; whether, if ground (aa) has been made out, I should exercise my discretion in favour of modification; and, if so, how much if anything I should award by way of compensation. For the applicants Mr Mark Sefton made clear that modification was being sought only for the purpose of enabling the carrying out of the development for which the local planning authority had resolved to grant permission, and it is relation to this, therefore, that these questions fall to be considered.

On the first question, Dr Michael Arnheim for the objectors submitted that the existing use of the application land as garden land was reasonable, and therefore the restrictions did not impede some reasonable user and, in consequence, ground (aa) had not been made out. That, however, is to misunderstand the provision. The question is not whether there exists some reasonable use that can be made of the land despite the restrictions but whether there is some reasonable use that is impeded by the restrictions. The proposed development, having been the subject of a favourable resolution by the local planning authority, is undoubtedly a reasonable use, and it is clearly impeded by the restrictions.

In the light of the evidence and my site inspection I am satisfied that the restrictions, which enable the objectors to prevent the proposed development, confer in that respect a practical benefit on them. Although the new house would not be visible from the objectors' houses and there would only be a limited view of it from the garden of one of them, number 6, it would be seen by them whenever they entered St Michael's Gardens on foot or by car. As I saw on my view, despite the development of the houses at The Friary, there is at one point near the entrance a view eastwards past the rear of numbers 3 to 7 that is not obstructed by the houses at The Friary but would be obstructed by the proposed house. It is, however, the most fleeting of views. I accept that the objectors would prefer surroundings that did not include the proposed house. However, I am in no doubt that, in the context of those surroundings as they are now, the house would have very little impact. It would be set back so that it was more or less in line with number 1, behind the Norway maples, which make a significant contribution to the character of St Michael's Gardens. Views into the application land (with the exception of the momentary view eastwards that I have mentioned) are dominated by the development at The Friary.

I accept that the development could give rise to a desire on the part of a future occupant of the house to have the Norway maples removed, so that the restrictions can be said to have the practical advantage of preventing the risk of this from arising. It is, however, a condition of the proposed planning permission (condition 4) that those trees should be retained and should not be lopped or felled without consent. The reason for this condition is said to be: "To retain and protect the trees which form an important part of the amenity of the area." In view of this, it seems to me unlikely that any purchaser of the house would be able to achieve consent for their removal, and I accept Mr Meeson's evidence that the trees would not be physically damaged by the proposed development. Nevertheless I acknowledge that there would be some increased risk of the loss of these trees and that this is a matter of concern to the objectors.

I do not think that the possibility of cars being parked on the land other than on the proposed parking bay (a concern that the objectors voiced) would be significantly greater than it is at present, and in any event the restrictions would continue to apply so as to prevent this. Dr Arnheim contended that there would be disturbance during building works, but there was no evidence to suggest that this was of concern to the objectors. Mr Meeson's evidence was that the development would not reduce the value of the objectors' houses, and I see no reason to doubt this. Overall my conclusion is that, while the restrictions confer practical benefits on the objectors, those practical benefits are not of substantial value or advantage to them.

Although the value of the objectors' houses would not be reduced were the restrictions to be modified, it would in my view be appropriate to reflect the displeasure that they, as existing owners and residents, would feel about the appearance of the new house when passing the application land and their concern about the increased risk to the existing trees through the award to them of small sums by way of compensation. Dr Arnheim, while stressing that compensation was not the objectors' primary goal, urged me to award each of them £25,000, as a restitutionary sum reflecting the profit that the applicants would be able to realise from the development. However, not only was there no evidence to support his assertion of what the applicants would gain from the modification, but I can see no reason for thinking that the applicants' gain could in this case conceivably be a proper measure of the objectors' loss. In my judgment a sum of £500 for each objector would be adequate. I am satisfied, therefore, that ground (aa) has been made out, and I think it appropriate that the restriction should be modified and that compensation should be awarded.

I should add that Dr Arnheim also contended that the covenants under consideration were part of a system of mutually enforceable covenants applying to the properties in St Michael's Gardens, and that this meant that there was a greater burden of proof on the applicants in seeking to make out a case for modification. He accepted that the documentary evidence before me did not show that there was such a system of covenants, but he suggested that I should invite further evidence to enable the point to be established. I see no need to do this. Those who objected to the application have had the opportunity to establish their entitlement to the benefit of the restriction, and I have in an earlier decision determined the matter. In any event I can see no reason for thinking that modification of the restrictions applying to the application land would weaken any similar restrictions that there may be on other small areas of undeveloped land in St Michael's Gardens, none of which is comparable in terms of physical features with the application land.

The restrictions will be modified to permit the development of a two bedroom dwelling with parking space, the demolition of the existing double garage and the erection of a single garage in accordance with the terms of the draft planning permission (reference W09582/06) sent to the applicants by Winchester City Council in November 2001. The applicants must pay £500 to the owners of each of numbers 6, 8 and 10 St Michael's Gardens by way of consideration.

The parties are now invited to make submissions on costs, and a letter relating to this accompanies this decision, which will only become final when the question of costs has been determined.

Dated 29 March 2005

George Bartlett QC, President