England and Wales Lands Tribunal

[2005] EWLands LP_51_2003 (9 February 2005)

LP/51/2003

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANTS – discharge – house – restriction on use to private dwellinghouse or learned or artistic profession – whether restriction obsolete – Law of Property Act 1925, s84(1)(a).

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

LAW OF PROPERTY ACT 1925

BY

MRS GILLIAN MARY BROMLEY

Re:

54 Bolsover Road

Worthing

West Sussex

BN13 1NT

Before: N J Rose FRICS

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

on 23 and 24 November 2004

The following case is referred to in this decision:

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

The following cases, although not referred to, were also cited:

University of Westminster's Application [1997] 1 EGLR 191

Diggens and Others' Application LP/27/1999, unreported.

Stuart Wright, instructed by Green Wright Chalton Annis, Solicitors of Worthing for the Applicant

Jonathan Gavaghan, instructed by Stephen Rimmer & Co, Solicitors of Eastbourne for the Objectors


 


DECISION

Introduction

1. This an application by Mrs Gillian Mary Bromley (the applicant) under section 84 of the Law of Property Act 1925 (the Act), seeking the discharge of certain restrictive covenants affecting freehold land known as 54 Bolsover Road, Worthing, West Sussex, BN13 1NT (the application property).
2. The restrictions in question were imposed in a conveyance dated 13 March 1946 by Field Place Estate Limited to Gladys Hembley. The conveyance contained, among others, the following covenants by the purchaser:

"4. Not to … permit any dwellinghouse thereon to be used for any purpose other than as a private dwellinghouse or for the carrying on of a learned or artistic profession.

5. Not to erect or permit to be erected on the property any advertisement or hoarding …

not to do or permit to be done upon the property anything which shall or may be or become a nuisance damage annoyance or disturbance to the vendors or the owners or occupiers of any land or dwellinghouse in the neighbourhood."

3. In August 2003 the applicant submitted a planning application, seeking consent for

"Extensions, alterations and change of use of part of the ground floor to a day nursery for up to 24 children aged 2-8 years operating between the hours of 7.30 am to 6.15 pm Mondays to Fridays inclusive".

4. On 29 September 2003 this application was approved, subject to certain conditions, one of which restricted the nursery use to 8 am to 6.15 pm Mondays to Fridays and not at any time on Saturdays, Sundays or Bank Holidays. The applicant now seeks the discharge of the relevant restrictions, relying on ground (a) of section 84(1) of the Act. It is agreed that the objectors represented at the hearing, who all live in Bolsover Road, are entitled to the benefit of the restrictions. They are Mr G R Fuller (42), Mr R Scott (44), Ms D Wooleter (46), Mr W S Marshall (47), Mr M Carter and Miss W Rushton (48), Mr P Menuge (48A), Mr M and Mrs C Coad (50), Mr and Mrs J Jillett (51), Ms A J Goodwin (52), Mr A and Mrs D Collier (56), Mr R and Mrs E Silverthorne (59), Mr K J Cantle (61), Ms J Bagley (63), Mr and Mrs Novis (65), Mrs S Shepherd (67), Mr H and Mrs J Farley (69), Mr G W Vial (71) and Mr P and Mrs C Goodall (73).
5. Mr Stuart Wright of counsel appeared on behalf of the applicant, whom he called to give factual evidence. He also called an expert witness, Mr K S Hurdley, FRICS, a partner in Messrs Hurdley Atkins, chartered surveyors of Worthing. Counsel for the objectors, Mr Jonathan Gavaghan, called one expert witness, Mr C T N Spratt, BSc, FRICS, principal of Messrs C G Spratt and Son of Worthing. On 30 November 2004, accompanied by representatives of the parties, I inspected the application property and the surrounding area.

Facts

6. In the light of the evidence and my inspection I find the following facts. The application property is a two storey detached house, erected in the late 1940s on the north side and close to the western end of Bolsover Road. It is of conventional construction, with cavity brick walls, a pitched tiled roof and reasonable sized gardens to the front and rear. It is situated in an established residential area of Worthing, close to the Durrington Strand shopping centre. Bolsover Road is mainly in residential use, although there are certain non-residential properties in the vicinity. The Worthing Sixth Form College is at the western end and on the south side of the road, with the main entrance being close to the application property. The Field Place community and recreation area lies to the rear of the application property. This is owned by Worthing borough council and is used as a bowling club (both indoor and outdoor), with tennis courts, a clubhouse building, theatre and car park.

Scope of the application

7. At the commencement of the hearing Mr Wright sought permission to amend the application so as to seek the modification of the restrictions as well as their discharge by adding the following qualification to the relevant covenants:

"save that nothing in this clause shall restrict the reasonable operation of a pre-school nursery."

8. Mr Wright also applied for permission to rely on grounds (aa) and (c) of section 84(1) in addition to ground (a). He justified the application on the grounds that the applicant had been acting in person for much of the time and as a result had not pleaded her case as she would have done had she instructed solicitors or counsel to draft the original application to the Tribunal.
9. I refused this application for the following reasons. Firstly, the applicant had had ample opportunity to take legal advice on the scope of the application before the hearing. Although the application, submitted in November 2003, was signed by the applicant in person, it stated that her representative was a partner in the firm of solicitors who acted for her at the hearing. Moreover, in a letter to the Tribunal dated 4 May 2004, that firm confirmed that they were acting for the applicant in the matter. Secondly, Mr Wright indicated that the applicant required the hearing to proceed without adjournment. In normal circumstances I would have permitted the proposed amendments on condition that the hearing be adjourned to enable the experts to take instructions and prepare any necessary supplementary reports, and that the applicant should be responsible for any wasted costs. Since, however, the applicant was not prepared to agree to an adjournment, it would in my judgment be unfair on the objectors for them to have deal with a case that was so significantly different from the one for which they had prepared, notwithstanding the fact that both experts had referred to the impact of a nursery use in their expert reports.

Ground (a)

10. The application for discharge of the restrictions is made on ground (a). This requires the Tribunal to be satisfied

"that 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".

11. The first issue between the parties was the extent of the relevant neighbourhood. Mr Hurdley considered that, in addition to Bolsover Road itself, the neighbourhood extended to the Sixth Form College and the Field Place complex on either side of Bolsover Road and also the retail and office buildings fronting the western side of The Boulevard, a dual carriageway running at right angles to and joining Bolsover Lane at the roundabout at its western extremity. Mr Spratt, on the other hand, considered that the neighbourhood did not extend to The Boulevard and the commercial properties to the west of it.
12. Both experts know Bolsover Road well. They both attended the Sixth Form College when it was a grammar school. In the light of my inspection, however, I am satisfied that Mr Spratt's opinion as to the extent of the neighbourhood is to be preferred.
13. The parties also disagreed on the extent of the changes which have occurred in what I have found to be the neighbourhood. Mr Gavaghan submitted that there had not been a significant or relevant change to the neighbourhood. On the other hand, although the Field Place complex was in existence when the restrictions were imposed, Mr Wright submitted that the uses to which it was now put were significantly more extensive that they had been in 1946. A play school regularly used the Heene Rooms in the complex and during the summer months children regularly played on its front lawn which lies to the rear of the application property. Also, the Barn Theatre had opened and various community groups met and educational activities took place in Field Place, which was advertised by a substantial hoarding at its entrance. On the other side of Bolsover Road was the Sixth Form College, on a site which was undeveloped when the restrictions were imposed. As well as operating as a college in term time, it was used for other educational activities during holiday periods and evenings and there was a sign advertising these in the road. In addition, Bolsover Road was regularly used by students to park their cars.
14. In my judgment, the construction of the Sixth Form College, together with the uses to which it is now put, on a site which was previously undeveloped, has constituted a significant change in the neighbourhood of the subject property. There has also been a limited increase in the intensity of development and use of Field Place, which was described as the Flamingo Country Club on the 1954 Ordnance Survey Plan.
15. The question I have to decide, therefore, is whether the construction of the Sixth Form College, together with the limited intensification of the Field Place buildings and activities, mean that the restrictions ought to be deemed obsolete. In that connection the test is whether their object is no longer capable of fulfilment (see Truman, Hanbury, Buxton and Co Ltd's Application [1956] 1 QB 261).
16. Mr Wright submitted that the primary purpose of the restrictions was to ensure that the application property and the immediately adjoining buildings were used only for residential purposes or for the non-residential uses specifically referred to, namely a learned or artistic profession, in order to protect the amenities of the neighbours, irrespective of the use to which their properties were put. Mr Gavaghan argued that their purpose was to protect the residential character of the area and to avoid nuisance and annoyance to the occupiers of neighbouring properties. The draftsman of the covenants had allowed some relaxation of the residential restriction, but of a benign and structured kind. The use of the words "profession", "learned" and "artistic" indicated that only the most non-disruptive commercial activities were envisaged.
17. I accept the submissions of Mr Gavaghan on this issue. Having done so, there is in my judgment nothing in the changes which have occurred at Field Place and the Sixth Form College which means that the restrictions are no longer capable of protecting the residential character of the area. Apart from the college, all the properties fronting Bolsover Road are in residential use and there was no evidence that that position was likely to change. The restrictions are therefore not obsolete and the application under ground (a) fails.
18. The application is dismissed. A letter on costs accompanies this decision which will take effect when, but not until, the question of costs is decided.

Dated: 16 December 2004

N J Rose FRICS

Addendum on Costs

19. The objectors ask for their costs, to be assessed on the indemnity basis. Relying on the decision of the President in Re Fairclough Homes Limited (LP/30/2001, unreported), they say that as successful objectors they should be awarded their costs unless they have in some respect been unreasonable and that there is no such reason to deprive them of their costs. Secondly, they say that there are factors which mean that it would be wholly just and proper for them to have an indemnity costs order, which would reduce the chances of there being a shortfall in the costs that they would recover. These factors were deficiencies in the applicant's conduct of the case which inevitably led to more time in preparation and extra costs that may be difficult to calculate with any exactitude. Those deficiencies included the absence of evidence to back up the assertion that the covenants were obsolete, the late production of the applicant's witness statement and skeleton argument and the attempt to change the nature of her claim substantially on the first morning of the hearing with only a few minutes warning. The objectors say that the applicant was aware that a number of objectors opposed her proposals when she purchased the property and yet she chose to see the legal costs incurred as the opportunity cost of a chance to make a profit. The objectors had no such choice and had the proceedings brought upon them. They should not be burdened with the risk of not recovering their legal costs. Finally, the objectors say that the Tribunal should take account of the unnecessarily aggressive tone of correspondence from the applicant's solicitors to the unrepresented objectors before the application was made to the Tribunal and the unjustified threats of damages and security for costs that they contained.
20. The applicant accepts that the objectors are entitled to part of their costs, but opposes the application for such costs to be assessed on an indemnity basis and submits that it is open to the Tribunal to make a split costs order or only award a percentage of the total costs to reflect the fact that the objectors were unsuccessful on certain issues. The grounds relied on by the objectors in support of their costs application did not make it more difficult for the objectors to prepare their case. The matters complained of were not raised at the appropriate time and did not increase costs. The applicant's witness statement was submitted at a late stage because of inaccurate factual assumptions in the objectors' expert report, which was itself served woefully late. The applicant was the sole proprietor of a small business and did not anticipate vast commercial profits from the venture. Indeed, she had sought to minimise her costs by conducting much of the early stages without legal representatives on the record. Any shortfall in costs resulting from assessment on the standard basis, when divided by the number of objectors, would be negligible. The pre-action correspondence had been referred to selectively, related to the objectors' threat of enforcement action in the county court, not the Lands Tribunal application, and expressly invited the objectors to discuss the proposal in a positive manner. The applicant had been successful in part, in that the Tribunal had found that development of the sixth form college and changes in the use of Field Place constituted a significant change in the neighbourhood, an aspect of the case which had been contested by the objectors. Given that a significant amount of time was expended on this issue, the applicant invited the Tribunal to make a split costs order or only award a percentage of the total costs to reflect such an issue based outcome.
21. In proceedings under section 84 of the Law of Property Act 1925, a successful objector will normally be awarded all his costs unless he has in some respect been unreasonable (see Lands Tribunal Practice Direction, 4 January 2005, para 20.4). In this case the objectors have won and, although they were unsuccessful in arguing that there had been no significant change in the neighbourhood, it was in my judgment not unreasonable of them to suggest that there had not been a change. It follows that the objectors are entitled to all their costs and the only question is whether these should be assessed on the indemnity basis or the standard basis. I accept that there are some aspects of the applicant's conduct which could reasonably be criticised. These are, however, not sufficient in my judgment to justify the award of costs against her on an indemnity basis, particularly bearing in mind the objectors' failure to submit their expert report until three months after the expiration of the second dead-line imposed by the Tribunal.
22. The applicant will pay the objectors' costs. In default of agreement such costs are to be assessed by the Registrar of the Lands Tribunal on the standard basis.

Dated: 9 February 2005

N J Rose FRICS