England and Wales Lands Tribunal

Bates v No Respondent [2004] EWLands LP_9_2004 (27 April 2005)

LP/9/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANTS – practical benefits of substantial value or advantage – proposal for 3-storey building to replace bungalow – effect of proposed development on outlook from objectors' adjacent flat – possible overlooking – no planning permission for proposed development – modification ordered – compensation £2,500 to reflect uncertainty over planning permission – Law of Property Act 1925, s 84(1), grounds (aa) and (c)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

by

JOHN STANLEY BATES

Re: 2 The Downs Wimbledon

London SW20 8HN

Before: The President

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

on Friday 15 April 2005

Alexander Hill-Smith instructed by Sherwood Wheatley, solicitors of Wimbledon, for the applicant

The objector Linda MacDonald in person and on behalf of Laurence Garnett

No cases are referred to in this decision.

The following cases were referred to in argument:

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

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


 


DECISION

Introduction

The applicant in this case seeks the modification of covenants burdening land at 2 The Downs, Wimbledon. The covenants, which I set out fully below, restrict building on the land to the erection of a single bungalow, and this is what the land at present contains. The applicant wishes to be able to erect two semi-detached 3-storey houses in place of the bungalow and seeks modification of the covenants to permit this. The objectors, Linda MacDonald and Laurence Garnett, are the leaseholders and occupants of a second-floor flat in King's View Court, a block of 14 flats situated immediately to the north of the application land. They say that the outlook from their windows would be damaged by the proposed development and that they would suffer from overlooking, loss of sunlight and increased noise.

Application land and surroundings

The application land is 60 ft (18.3m) wide by 90 ft (27.4m) deep and lies within the West Wimbledon Conservation Area. The existing bungalow is set back 30 ft (9.1m) from the footpath on the east side of The Downs, a residential road running generally southwards from Ridgway, and a pair of semi-detached houses to the south. Development in The Downs south of Ridgway for 300 yards or so consists predominantly of 4-storey blocks of flats with flat or very low pitched roofs. There are some 3-storey buildings with pitched roofs, like the pair of semi-detached houses immediately to the south of the application land. The bungalow on the application land is a single-storey anomaly in these surroundings. Some of the development is of long-standing, notably the substantial blocks of Wimbledon Close, to the south of the pair of houses on the east side of the road and opposite them on the west. There is much development, however, that has been recently permitted and constructed, including the two semi-detached houses, which were permitted in 1998 and constructed in 1999, and King's View Court, constructed in about 1990.

King's View Court occupies an L-shaped site. The part containing the building fronts Ridgway as well as The Downs and the other part stretches southwards to the rear of the application land and the two semi-detached houses. This latter part of the site is open and contains a parking area for the flats and, beyond this, a lawn and some mature trees. To the east of this part of the site, and occupying the whole of the area between it and Edge Hill, the next road to the east off Ridgway, is the Convent of Marie Reparatrice. The application site, the site of King's View Court and other adjacent land that is now developed once formed part of the convent. The land on which King's View Court now stands previously contained a chapel.

The restrictions and the modifications sought

The application land was sold by the convent in 1968. The conveyance, of 1 May 1968, contained the following covenants on the part of the purchaser that are the subject of the present application:

"1. No building shall be erected on the land hereby conveyed except one detached bungalow with outbuildings thereto (including private garage). The plans and siting of any such building shall first be approved by Vendors or their surveyors such approval not to be unreasonably withheld.

2. No building shall be erected on the land hereby conveyed within thirty feet of the said road called The Downs Wimbledon aforesaid.

3. No building erected on the land hereby conveyed shall be used for any purpose whatsoever other than as a private bungalow in the single occupation of one person or family.

4. No garage erected on the said land shall be used for any purpose other than as a private garage for the use of the residents in the said bungalow."

There was also a covenant against nuisance or annoyance (number 6).

The covenants were imposed for the benefit of each and every part of the land of the vendors. This included at the time the site of the chapel, now occupied by King's View Court. The application, which was dated 19 December 2003 sought the modification of the four covenants set out above by the substitution of the following:

"1. No buildings shall be erected on the land hereby conveyed except two storey dwelling houses with our without loft conversions (provided that any windows above second floor level at the rear of any such dwelling house shall have a floor to window sill height of not less than two metres) with outbuildings thereto.

2. No buildings shall be erected on the land hereby conveyed within thirty feet of the said road called The Downs Wimbledon aforesaid.

3. No buildings erected on the land hereby conveyed shall be used for any purpose whatsoever other than as private dwelling-houses in the single occupation of one person or family.

4. Any garages erected on the land hereby conveyed shall not be used for any purpose other than as a private garage for the use of the residents of the said dwelling-houses".

The grounds set out in the application were all four of those in section 84(1) of the Law of Property Act 1925, that is to say, (a) (obsoleteness), (aa) (no practical benefit of substantial value or advantage), (b) (consent) and (c) (no injury).

Procedural matters

The objectors lodged notice of objection dated 26 May 2004, but the applicant did not accept that they were entitled to object. Following a hearing under section 84(3A), on 15 December 2004 I determined that they should be admitted to oppose the application. An objection by O'Brien Properties Ltd, the freehold owner of King's View Court, was rejected by the Registrar as being out of time, and I dismissed the appeal against the Registrar's decision. Following the section 84(3A) hearing I ordered that expert reports and witness statements must be exchanged and sent to the Registrar not later than 31 January 2005.

On 31 January 2005 the report of Brian Madge BA, MA, MRTPI was sent to the Tribunal by the applicant's solicitors. It dealt only with planning matters. It annexed some architects' drawings showing a potential redevelopment of the application land and it expressed the conclusion that there was no reason why that development should not achieve planning permission. During the week before the hearing the applicant's solicitors sent a bundle of documents to the Tribunal and to the objectors. They included a report from a chartered surveyor expressing a view on the effect that development would have on the value of the objectors' flat. In view of my earlier order, the lack of any earlier application to permit it and the insufficiency of time for the objectors to consider it, I refused permission at the hearing for this report to be relied on.

On 20 February 2005 Ms MacDonald had written to the applicant's solicitors expressing concern about the limited number of drawings that had been supplied. Those produced with Mr Madge's report were plans of the ground floor, first floor and second floor and the west elevation. Ms MacDonald had requested drawings showing the proposed north and east elevations (the two elevations which the objectors would see from their windows) and she also asked that certain measurements, including the external height, width and depth of the proposed building should be stated. On 2 March 2005 Sherwood Wheatley sent the drawings, which together with the drawings already supplied, formed a set of drawings that had been produced by architects in June 2003. On 17 March 2005, following a repeated request by Ms MacDonald for measurements, Sherwood Wheatley wrote saying that "these measurements can be ascertained from the plan we have already supplied to you by reference to the scale."

Mr Alexander Hill-Smith, who appeared for the applicant, said that the application was now advanced on grounds (aa) and (c) only. I pointed out to him that normally in a case of this sort there would be before the Tribunal a detailed planning permission by reference to which the Tribunal would be able to judge whether ground (aa) was made out, so that, if it concluded that the covenants should be modified, it would be able to order modification by express reference to the planning permission. All that there was in the present case was a small scale plan (1/1250) showing the existing development in the immediate vicinity of the application land and the architects' drawings at a scale of 1/50 which showed virtually no dimensions and did not show where on the application land the development would be. Mr Hill-Smith asked, in view of what I had said, that the case should be adjourned to allow the applicant to apply for and to receive planning permission. I refused this request since it seemed to me that the applicant had had plenty of time to put his case in order and that it would be unfair to the objectors to prolong the uncertainty of the unresolved application. Mr Hill-Smith said that he would invite me to consider whether the application should succeed in the light of the scheme shown on the architect's drawings and to order the modification of the covenants by reference to these.

Case for the applicant

Mr Madge said that, under Planning Policy Guidance Note 3: Housing, local planning authorities were asked to promote development to make the most efficient use of land. Design practice notes issued by the Government in 2000 and 2001 showed how housing gain could be achieved without sacrificing environmental quality. The development shown in the architects' drawings was consistent with this advice and would be appropriate in the context of the surrounding area. Mr Madge referred also to PPG15 which gave advice on development in conservation areas. He considered that the proposed development would enhance the conservation area by replacing an incongruous bungalow with a larger building that was in keeping with the built forms of the locality. He referred to the London Plan and to Policy HS1 of the Merton Unitary Development Plan, dealing with housing layout and amenity. That policy required all proposals for residential development to safeguard the residential amenities of occupiers of nearby properties in terms, among other things, of the adequacy of daylight and sunlight, the protection of privacy and the avoidance of noise. Mr Madge said that the proposal ensured privacy through the considered siting of windows and design features whereby windows on the upper level were high level. He said that similarly, since they were only houses with limited depth, light would penetrate around the buildings at different times of the day. His conclusion was that the proposal was consistent with planning policy and would produce housing and conservation benefits. He considered that there was no reason why it should not achieve planning permission.

Mr Hill-Smith submitted that the evidence of Mr Madge established that the proposal constituted a reasonable user of the subject land and that the criteria in ground (aa) were satisfied. He accepted that the objectors' concern about loss of privacy was genuine, but he said that the windows represented a perfectly standard state of affairs in a suburban situation. There would be no loss of view, as the windows of the flat looked down on the car park of King's View Court. The roof of the bungalow was at present visible at an angle and the proposal would be just as pleasing to the eye as the bungalow, which was out of keeping with other buildings in The Downs. The loss of sunlight would be minimal, and an argument based on noise was fanciful.

Case for the objectors

Ms MacDonald said that the principal concern of the objectors was with the large number of windows that were proposed, particularly on the eastern elevation. The application would result in a two storey development with rooms and windows in the loft, effectively creating a three storey development that would be higher than their windows, all of which faced the proposed development. There would be a loss of privacy, since windows on the upper two levels would look into their windows. Moreover the plans could be changed further, as no planning permission had been obtained. The open outlook that the objectors at present enjoyed from their lounge window would be destroyed. Doubling the number of families on the application land would lead to increased noise, and there would be an increase in the level of lighting at night. There would be an adverse effect in terms of daylighting and sunlighting. She and Mr Garnett had only recently purchased their flat, and if the development went ahead they would not wish to continue living there. Her estimate of the profit that would be made from the development was £500,000, and, although compensation was not their chief objective, she suggested that 20% of this would be a reasonable amount for the objectors to receive. Alternatively she suggested that they should be paid the amount by which the value of their flat would be depreciated, which she put at £20,000, plus their removal expenses.

Conclusions

The restrictions that are the subject-matter of this application were imposed to protect the land retained by the convent, including the site of what is now King's View Court, which at the time contained a chapel. It is improbable that the parties to the 1968 conveyance had in mind the possibility that leaseholders in a block of flats subsequently erected on the site of the chapel would seek to enforce the restrictions, but, rightly in my view, the case for the applicant is not advanced on the ground that the restrictions are obsolete. King's View Court was evidently designed in the expectation that the bungalow would be replaced by a higher building. The objectors are very much the chance beneficiaries of the operation of the law, but if their right to prevent the development that the applicant has in mind is of substantial value or advantage to them the applicant will not be able to achieve modification under ground (aa).

The applicant asks me to consider the application in relation to the proposals shown on the architects' drawings. As I have already noted, there is no planning permission for this, or indeed any other, redevelopment. The task of considering the probable impact on the objectors' property is made difficult by the fact that apart from the drawings, which lack dimensions and fail to show where the building would be positioned on the application land, there is only a relatively small scale plan, at 1/1250, showing the application land and the buildings in its vicinity. No evidence was adduced on the part of any witness seeking to describe or evaluate the effect of the development in any detail and in other than planning terms. I was provided with photographs, and after the hearing I viewed the application land and its surroundings. I have scaled off from the plan some of the measurements that seem to me material but which were not provided by the applicant.

Doing the best I can, therefore, on the material before me, I find that the width of the proposed building would be 16.25 m and that this compares with the plot width of 18.3 m, leaving about 1 m on either side of the building. The full depth of the building would be 13.4 m, so that, with a plot depth of 27.4 m and a set-back from the road frontage of 9.1 m, the rear wall would be 5 m from the boundary. It would extend about 3 m beyond the rear wall of numbers 4 and 4a. The building would be 3 m less deep at the rear corners. At its nearest point it would be rather less than 20 m from the bay window of the objectors' flat. The nearest window with outward views, in the eastern elevation, would be about 20 m away, at first floor level (as compared with the second floor level of the objectors' flat) and set at an oblique angle to windows in the objector's flat. The sills of the windows in the side and rear elevations on the second floor would be 2 m above floor level. The overall height of the building would be 10 m, and 4 m of this would be above the floor level of the second floor. It would shut out views to the south-west from the windows of the objectors' flat.

Although such a new building would make an obvious change in the outlook from the objectors' flat, it would not in my view create an interrelationship that was out of accord with those of other residential buildings in the immediate vicinity. The extent of intervisibility between the windows in the new development and the objectors' flat would be limited, given the relationship I have just described. King's View Court was quite evidently designed in the expectation that the application land would be redeveloped with a higher building, so that windows in the flank wall immediately to the north of the application land are those of secondary rooms. The large bay window in the objectors' flat was designed to look southwards across the extensive open land at the rear of the application land and numbers 4 and 4a The Downs. My conclusion is that while the objectors would notice the change and would find it regrettable, and there could be some minor effects in terms of noise and possibly of sunlighting, the adverse effects would not be substantial. I have no reason to believe that the market value of the objectors' flat would be affected, and I consider that the objectors could properly be compensated for the adverse effects of the proposals shown on the submitted drawings by the payment of a relatively small sum, which I put at £1,000.

I am in no doubt at all that planning permission would be forthcoming for a 3-storey residential development on the application land that was in design terms compatible with the adjoining development and that a development of two semi-detached houses would be regarded as appropriate. I accept that such a development would be seen by the local planning authority to be in accordance with planning and conservation policy. I am, however, unable to conclude that the design shown on the submitted drawings would probably be approved. It seems to me to be certain that the local planning authority would scrutinise the detail of the proposals with care and that they could well require amendments to them. In these circumstances, if I were to tie any modification to the submitted proposals it is likely that the applicants would have to make a further application to modify the covenants. It seems to me to be strongly desirable, in the interests of all concerned, that such an outcome should be avoided if it is possible to do so. The conclusion I have come to is that the covenants should be modified so as to permit the erection of two 3-storey semi-detailed houses and that the design of these should be left to the planning process to determine. The relevant planning policies make it unlikely, in my view, that anything with a greater adverse effect on the objectors than the illustrated proposals would be permitted. Nevertheless this is not certain, and to compensate the objectors for the uncertainty I think it appropriate to increase the payment of £1,000, to which I have earlier referred, to £2,500.

To summarise my conclusion in terms of the statutory provisions, I am satisfied that by preventing the erection of two 3-storey semi-detached houses on the application land the covenants impede a reasonable user of that land; that in so doing the covenants secure to the objectors practical benefits; that these benefits are not, however, of substantial value or advantage to them; and that money would be adequate compensation for the disadvantage that they would suffer. Ground (aa) is made out; ground (c) is not.

I consider it appropriate that covenants 1, 3 and 4 should be modified so that they provide:

"1. No building shall be erected on the land hereby conveyed except two 3-storey semi-detached houses with outbuildings thereto, provided that any windows above second floor level on the northern and eastern elevations shall have a floor to window sill height of not less than two metres.

3. No buildings erected on the land shall be used for any purpose whatsoever other than as private dwelling houses in the single occupation of one person or family.

4. Any garage erected on the land hereby conveyed shall not be used for any purpose other than as a private garage for the use of the residents of the said dwelling-houses."

No modification was sought of covenant 2. In relation to covenant 1, the applicants' proposed modification would omit the words in the existing covenant, "The plan and siting of any building shall be first approved by the Vendors or their surveyors each approval not to be unreasonably withheld." The vendors were the trustees of the convent land. The convent has not objected to the present application and, in particular, has not suggested that this provision should be retained in its existing or some modified form. I see no justification for its retention. A straightforward reference to a three storey building seems to me to be preferable in this covenant to the words suggested by the applicant. I see no justification for the imposition of any additional restrictions beyond those set out above.

The applicant must pay to the objectors the sum of £2,500 by way of consideration.

The parties are now invited to make submissions on costs, and a letter about this accompanies this decision. The attention of the parties is drawn to paragraph 20.4 of the Lands Tribunal Practice Directions of 4 January 2005.

Dated 27 April 2005

George Bartlett QC, President

ADDENDUM ON COSTS

The applicant says that he seeks no order as to costs, and the objectors have made no application for costs. I therefore make no order as to costs.

Dated 13 May 2005

George Bartlett QC, President