England and Wales Lands Tribunal

 


Parkinson, Re [2005] EWLands LP_62_2004 (16 December 2005)

LP/62/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – discharge – restriction limiting development upon land to the rear of dwellinghouses – application for discharge to permit the construction of two residential dwellings – whether restriction obsolete – whether those benefiting from the restrictions have agreed expressly or by implication to the discharge – whether discharge would injure those entitled to benefit - Law of Property Act 1925 s.84(1)(a), (b) and (c) - application dismissed

IN THE MATTER of an APPLICATION under SECTION 84 of the

LAW OF PROPERTY ACT 1925

BY DAVID PARKINSON

and

JANET PARKINSON

and

CHRISTINE QUIGGIN

Re: Land at rear of 26 and 28 Lawn Avenue, Etwall, Derbyshire, DE65 6JB

Determination without an oral hearing under Rule 27, Lands Tribunal Rules 1996

By: P R Francis FRICS

DECISION

1. This is an application by Mr David and Mrs Janet Parkinson and Mrs Christine Quiggin ("the applicants") respectively of 28 and 26 Lawn Avenue, Etwall, Derbyshire for the discharge of 5 restrictive covenants affecting freehold land to the rear of their homes ("the application land") so as to permit the erection of two detached houses thereon. There are two objectors, Mr Anthony and Mrs Margaret Burns ("the objectors") of 22 Lawn Avenue, Etwall, Derbyshire. The applicants sought a direction that the matter be determined by written representations under Rule 27 of the Lands Tribunal Rules 1996, and the objectors agreed. An order was made to that effect on 2 September 2005. The parties stated that they did not wish to adduce expert evidence, and I rely therefore upon the undated originating application (received by the Tribunal 7 September 2004) and supporting documentation, the Notice of Objection dated 25 July 2005 and my inspection of the application land and surrounding area undertaken on 11 November 2005.

Background

2. The application land which, in total, extends to approximately 3,017 sq yds (0.62 acre) currently comprises extended garden land to the rear of 26 and 28 Lawn Avenue, Etwall. The northern boundary of the part of the land behind 28 Lawn Avenue (Parkinsons), which is a corner plot at the junction of Lawn Avenue and Burnaston Lane, has a direct frontage to the latter of about 75 metres. The application land forms part of a larger area (about 2.64 acres) lying behind numbers 10 to 28 Lawn Avenue and which was formerly in the ownership of local landowners who had applied for permission to erect 10 dwellings upon it. Planning permission was refused both on application and appeal, and most of the land was subsequently sold to those owners of 10 to 28 Lawn Avenue who wished to extend their gardens. However, some of the original purchasers did not wish to acquire all of the available land at the time (12, 22, 26 and 28), so they extended in part only, leaving areas of residual land which were sold to other nearby residents. Those properties have subsequently changed hands and all but one of the current owners (including 26 and 28 – the applicants' properties) have since purchased the residual land from them – hence the application land was conveyed to the applicants in two separate parts. The owners of 20 Lawn Avenue purchased the residual land behind their own property, together with that behind 22 to form an L-shaped rear garden plot. The owners of 22 (the objectors) therefore are the only ones still to have only a part extended rear garden. The original landowners have since sold the remainder of their interests in the area, have moved away, and their whereabouts are unknown.
3. For legal reasons which are not relevant to this application, the whole of the 2.64 acres was conveyed by its former owners to Trustees on 30 March 1979, (which I shall call the first conveyance) and on the same day the relevant areas were transferred to the individual purchasers (the second conveyances). Clause A (5) of the Second Conveyances gives effect to Fifth Schedule covenants and states:

" For the benefit and protection of the Blue Land or any part or parts thereto and so as to bind so far as may be the land into whosoever hands the same may come the Transferee hereby covenants with the Transferor and also as a separate covenant with every owner for the time being of any part of the Blue Land that the Transferee and his successors in title will observe and perform the restrictions and stipulations set out in the Fifth Schedule hereto but so that neither the Transferee nor the persons deriving title under him shall be liable for a breach of this covenant occurring on or in respect of the land or any parts thereof after he or they shall have parted with all interest therein;"

The blue land referred to is the whole of the now fully extended garden land behind 10-20 and 24-28 Lawn Avenue, and the part extended land behind 22.

4. The five Fifth Schedule restrictions for which the applicants seek complete discharge are:

1. No buildings shall be erected on the land other than a domestic type greenhouse and/or one garden or tool shed and/or one summerhouse and one poultry house

7. No steam traction engine motor cycles or other vehicles having an internal combustion engine (including diesel) shall be driven or parked on the land or any part thereof but this restriction shall not extend to lawnmowers rotavators agricultural machinery of any kind whatsoever or any vehicle (other than steam tractors) constructed for the carrying or towing of agricultural machinery and intended for use on the land PROVIDED that this restriction shall not prevent delivery to or collection from the land of a caravan boat or item of horticultural equipment or material

9. Not at any time to apply for planning consent under the Town and Country Planning Acts or any amended or substituted legislation to change the permitted user at the date hereof of the land

14. Not to erect upon the land conveyed any aerials masts dished aerials cables wires or antenna for the reception or transmission of radio or television signals

16. Not to erect on the land any fencing or hedges of a height greater than four feet six inches

5. The first conveyance and the second conveyances also imposed restrictions relating to land retained by the original vendors, the nature of which could affect the applicants' intentions. However, these are not the subject of this application.
6. Outline planning permission was granted by South Derbyshire District Council on 18 October 2001for the construction of 7 detached houses on the whole of the 2.64 acres of land that had been originally conveyed (including the application land), subject to conditions. Detailed consent for 6 houses was subsequently obtained on 21 May 2003 and for an additional single unit on 29 May 2003. Access to the road frontage plots (plots 1 and 2 – which would be on the application land) was to be directly off Burnaston Lane, with access to the remaining units being over a 5 metre wide private drive also off Burnaston Lane and lying in the north-eastern corner between plot 2 and the eastern site boundary.

Grounds for application

7. The application is made under paragraphs (a), (b) and (c) of section 84(1) of the Act. The issue under ground (a) 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".

8. Mr Parkinson (as spokesman for the applicants) said that in the period since 1979, when the restrictions were imposed, there has been a material change in ownership of the land, and a material change in circumstances of the owners. He said that in 1979 when the original owners, most of whom had young families, purchased the land, they did so not only to extend their then very small rear gardens but also to protect their own boundaries from development. Only three of the original purchasers remain, all of whom have retired, have families who have grown up and moved away, and who are finding their gardens an increasing burden to maintain. The rest of the owners (including the applicants) are successors in title.
9. All of the owners (apart from the objectors) were party to the planning application which received outline consent in 2001. It was the intention that seven of the owners would build properties whilst the remaining two would sell their land amongst the 7 for building purposes. Immediately following the grant of consent, all the owners whose land was involved formed a group called the "Lawnswood Land Consortium" and an inaugural meeting (at which Mr Parkinson was the chairman) was held on 21 October 2001. The consortium was constituted to take forward the proposed development and deal with matters such as obtaining a valuation of the land, identifying potential builders and dealing with the question of the restrictive covenants. The objectors, who also objected to the planning application, were not party to the consortium (none of their land actually being required for the development although a section of it had the benefit of the covenants), but had asked to be kept informed as matters progressed. They subsequently agreed to relinquish the benefit of their restrictive covenants subject to certain conditions relating to the siting and design of the property that would be immediately behind their house, in return for a payment of £12,000 compensation. A draft Agreement was prepared but it was never signed and Mr and Mrs Burns's agreement is now withdrawn.
10. It was acknowledged that by making the application, the owners were in breach of condition 9 of the Fifth Schedule. Several of the owners were also in minor breach of condition 1 (exceeding the number of permitted buildings), condition 11 (trees growing to such a height that views are obstructed) and condition 16 (hedges growing to more than 4'6" high). Mr Parkinson said that the actions of the parties confirmed the changes in circumstances, and constituted, either expressly or by implication, agreement to the required discharge under ground (b) [to which I shall turn].
11. The objectors said that the houses in Lawn Avenue were built in 1976, and the restrictions that were imposed in 1979 relating to the extended garden land were to maintain and keep the general character of the neighbourhood. That character had not changed subsequently, and it was submitted that changes in the personal circumstances of particular owners are not material changes to which ground (a) is intended to apply. It was, they thought, the applicants' intention to develop the application land for profit. Any such development would have a detrimental effect on the value of their property as the new houses would impact upon the open, rural views that were currently enjoyed.
12. In connection with their previously stated acquiescence with the proposals, Mr and Mrs Burns said that in the face of the number of neighbours wishing to pursue the scheme, they did not want to become at odds with them all. Thus, they had been prepared to agree to the discharge in return for a payment (which was not calculated as a result of any valuation advice), and in return for their having a say in the positioning and design of the properties. However, the draft agreement was never signed because, as was evident from the fact that it had now become necessary for the applicants to apply to the Lands Tribunal in the way that they had, all the interested parties had failed to reach agreement.
13. Ground (b) says:

"that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified".

The applicants say that there was agreement at some time between all the parties who own the land upon which the planning consent was obtained either to build properties or to sell the land for that purpose. The objectors, who are the only people not involved in the proposed development to enjoy the benefits of the covenants, had also agreed in principal to the discharge in return for a payment. In effect, therefore, ground (b) is complied with, although it is acknowledged that this application only relates to the land behind numbers 26 and 28 Lawn Avenue. This is because there is now disagreement on the price to be paid by those selling their land, on design issues and timescales. The mutuality that once existed between all the parties has, therefore, now dissolved. Mr Parkinson said that whilst it is believed there is agreement in principle to mutual discharge of all the relevant Fifth Schedule covenants, some belligerence is now creeping in respect of the signing of the agreement. The applicants, Mr Parkinson said, wished to proceed with the development of the reduced area of land and time was of the essence owing to the ill-health of Mrs Quiggin's husband. They would agree to the mutual discharge of the covenants in respect of the remaining land with all the other owners.

14. The objectors said that insofar as it is claimed there have been minor breaches of various covenants by some owners, and it is accepted that in residential areas such breaches might not cause disruption or materially alter the character of a property or neighbourhood, this does not imply agreement to the discharge (or modification) of relevant restrictions. They said that they have not, by act or omission, consented to the discharge as alleged by the applicants.
15. Ground (c) states:

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

The applicants said that discharge of the restrictive covenants on the application land would have little or no affect upon the objectors as their property does not directly adjoin it, the views to the east of their property will not be interrupted, they will not be overlooked and, if necessary, further suitable screening could be provided. Mr and Mrs Burns said that the proposed development would injure their property in that their present uninterrupted aspect over open countryside would be affected, and it was the existence of the restrictions that allowed them to continue to live in a neighbourhood that retains the character it had when the houses were built.

Conclusions

16. The Lands Tribunal will only discharge (or modify) a restrictive covenant where it can be shown that one of four conditions are met. Firstly, where the covenant is, in effect, obsolete (ground 1(a)); secondly that the covenant restricts the reasonable use of the land, that it confers no practical benefit of substantial value on those entitled to enforce it and the loss of the covenant can be compensated by money (ground 1(aa)); thirdly where there is agreement between all entitled to the benefit that there should be a discharge or modification (ground 1(b)), and fourthly that no injury will be caused (ground 1(c)). This application is made under the first, second and fourth conditions.
17. As to ground (a), I am not satisfied that the changed personal circumstances of local residents are sufficient to justify the argument that the covenants should be deemed obsolete. Whilst social changes such as, for instance, changing attitudes to the sale of alcohol have in the past been held to be sufficient grounds, I do not think that the personal situations relating to individual householders in each of the affected properties on one side of Lawn Close can possibly be. Furthermore, it is clear to me from an inspection of the application land, the adjacent land, the objectors' property and the surrounding area that there have been no material changes either in the character of the neighbourhood or the character of individual properties sufficient to deem these fairly recent restrictions (in historical terms) obsolete. The very purpose for which the restrictions were imposed – principally to keep the garden extensions free from development – is still manifestly capable of achievement.
18. The houses on the east-side of Lawn Close are on the absolute periphery of the village and enjoy an exceptional aspect over open countryside. In my judgment, the construction of any houses on the application land (and, if it ever proceeds, on the rest of the 2.64 acres referred to) will have a seriously detrimental impact upon numbers 10 to 28 Lawn Avenue. However, I do note that the only objection is from the owners of 22 who are the only occupiers to have the benefit of the restrictions yet do not own any of the land upon which planning permission has been obtained. Nevertheless, it is clear to me that the intention of the restrictions (and particularly numbers 1 and 9) was to protect all the existing properties in Lawn Avenue and, as I have said, there is nothing that persuades me that there is anything that has occurred to suggest the original purpose of the covenants is no longer being served. The application under ground (a) therefore fails.
19. Turning to ground (b), it is evident from the recent history, as outlined above, that the point at which it could be argued that all those with the benefit of the restrictions was almost reached when the current objectors agreed in principal to accept a compensation payment for the release of the covenants. If the draft agreement (which also dealt with the proposed siting of the 7 dwellings) had been accepted and signed by all parties then the matter would have been at an end. However, this is no longer the case, the objectors having confirmed that their previous agreement is withdrawn. I do not, therefore, accept the applicants' suggestion that the parties are currently in a position whereby they have agreed either expressly or by implication, the discharge of the covenants. The application under ground (b) also fails.
20. This leaves ground (c). In my judgment, the proposed development on the applicants' land would have some detrimental impact upon the objectors' property, albeit fairly limited. Whilst there are some tall trees and high conifer hedges in the line of sight between the principal rooms to the rear of the objectors' house and the application land, I do think the new 2 storey houses as proposed would be visible, especially from the bedrooms and more so in the winter when there are no leaves on the trees. The height of the hedges are, of course, in breach of restriction 16 of the Fifth Schedule, but nobody has suggested that any form of enforcement action would be taken in that regard. However, if it was, and the conifers were reduced to a maximum 4'6" in height, then the impact would obviously be greater. There is, as I have said, currently a wholly uninterrupted view over open countryside from the rear of the objectors' property and any intrusion into that aspect caused by the building of new houses on the application land will damage it.
21. Furthermore, despite the fact that in my view the injury caused to the objectors by a discharge of the covenants relating to the application land would be slight, such a discharge would weaken the integrity of the scheme of covenants as they apply to all the houses enjoying the benefit of them. Clause A(5) establishes a scheme of mutually enforceable covenants between the owners of the parcels of land conveyed by the second conveyances, and the objectors are able to enforce the restrictions in relation to each of those parcels. This system of covenants is at present unbroken, and the objectors could, in my view, reasonably feel that they are better protected with the system intact against applications that might in future be made to modify or discharge the covenants in relation to other parts of the burdened land. I conclude that ground (c) is not made out.
22. As the applicants have not succeeded in establishing any of the grounds relied upon, the application is dismissed. A letter on costs accompanies this decision which will take effect when, and not until, the question of costs is decided.

DATED 16 December 2005

(Signed) P R Francis FRICS