England and Wales Lands Tribunal

 


Dobbin v No Respondent [2006] EWLands LP_59_2004 (30 August 2006)

LP/59/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – modification – building scheme – proposed bungalow – reasonable user – public interest - whether practical benefits secured – substantiality – effect of scheme – application refused – Law of Property Act 1925, s84(1)(aa), (b) and (c)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

By

JOHN DOBBIN

Re: Land adjoining and formerly part of

1 Briar Close, Darlington

County Durham, DL3 8QX

Before: A J Trott FRICS

Sitting at Darlington County Court

on 28 and 29 June 2006

Philip Coppel instructed by Darling & Stephensons, solicitors of Darlington, for the applicant.

Christiaan Zwart instructed by Ward Hadaway, solicitors of Newcastle upon Tyne, for the objectors

The following cases are referred to in this decision:

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

Re Martin's Application (1989) 57 P & CR 119

Re Wiggins' Application (1998) (Lands Tribunal, LP/27/1996)

Re Collins' and Others' Application (1975) 30 P & CR 527

Re Brierfield's Application (1978) 35 P & CR 124

Gilbert v Spoor [1983] Ch 27

Re Bromor Properties Ltd's Application (1995) 70 P & CR 569

The following cases were also cited:

Elliston v Reacher [1908] 2 Ch 374

Re Dolphin's Conveyance [1970] Ch 654

DECISION

1. This is an application by Mr John Dobbin (the applicant) under section 84 of the Law of Property Act 1925 (the Act) seeking the modification of a restrictive covenant affecting freehold land comprising an undeveloped plot adjoining, and formerly part of, 1 Briar Close, Darlington, County Durham (the application land). The restriction in question is one of several imposed under a conveyance of the application land and other land dated 12 September 1960 between John Joseph Calder and Frederick and Lucy Winter. The restriction is contained in a covenant, which states:

"1. The Purchasers shall within twenty four months after the date hereof at their own cost erect and complete in a substantial and workmanlike manner and thereafter at all times maintain in substantial repair one dwellinghouse with suitable offices outbuildings at a cost in labour and materials of not less than two thousand seven hundred and fifty pounds Such dwellinghouse shall be built subject to the supervision and to the satisfaction of the Vendor's Architect and in accordance with detailed plans and elevations to be submitted to and approved by such architect before the work is commenced No other building or erection other than the said dwellinghouse and outoffices shall be erected upon the said land without the consent in writing of the Vendor"

2. The applicant seeks to modify the restriction so as to permit the development of a detached bungalow and private garage in accordance with the planning permission granted by Darlington Borough Council on 26 August 1987 (reference 8/87/228/DM). The applicant relies upon paragraphs (aa), (b) and (c) of section 84(1) of the Act.
3. There are two objections to the application. John Morse and Lilian Redpath have objected in their capacity as trustees of the Conniscliffe Road Settlement, the freehold owners of 3 Briar Close. Lilian Redpath has also objected in her own capacity as freehold owner of 4 Briar Close. A third objector, Blackwell Grange Golf Club Limited, withdrew its objection immediately before the hearing having entered into a consent agreement with the applicant on 27 June 2006.
4. Mr Philip Coppel of counsel appeared on behalf of the applicant. He called John Dobbin as a witness of fact and Simon Bainbridge MRICS, a partner in Smiths Gore, Chartered Surveyors of Darlington, as an expert witness.
5. Mr Christiaan Zwart of counsel appeared on behalf of the objectors. He called Anthony Redpath as a witness of fact and Geoffrey Crass FRICS of Crass and Co, Chartered Surveyors of Sedgefield, County Durham, as an expert witness. Lilian Redpath did not appear as a witness of fact but instead submitted a statutory declaration.
6. I made an accompanied inspection of the application land on 27 June 2006. I also viewed the application land from both inside and outside 4 Briar Close and from the garden that is known as 3 Briar Close.

Facts

7. Briar Close is a quiet residential cul-de-sac located approximately 2 kilometres to the south west of Darlington town centre in the area known as Blackwell. It is a short distance to the east of the A66(M) to which it has easy access. The close has a narrow concrete roadway that is approximately 4 metres wide with a single pavement on its western side. There are three houses on the western side of Briar Close (Nos.2, 4 and 5) and a single bungalow to the east (No.1). At the end of the cul-de-sac is the clubhouse and car park of the Blackwell Grange Golf Club. The golf course is located to the east of Briar Close and the 18th hole adjoins the application land with the fairway running parallel to the close.
8. The application land is located immediately to the north of 1 Briar Close from which it is separated by a wooden picket fence. It has an area of approximately 454.7 square metres and is open and undeveloped, being laid to grass and containing several trees. Between the application land and the golf club car park to the north is a triangular shaped piece of land also owned by the applicant (the triangular land). It has an area of approximately 291 square metres and is not physically separated from the application land. The triangular land and the application land appear to the observer to be a single plot. The western boundary of these two areas is formed by an unbroken evergreen hedge approximately 1 metre in height that fronts onto the roadway of Briar Close. The eastern boundary between the golf course, the triangular land and the application land is formed by a wooden fence behind which is a screen of tall (10 to 15 metres high) evergreen trees located on the golf course.
9. The objectors' properties lie to the west of Briar Close. 3 Briar Close is undeveloped and is currently occupied as a garden together with No.4 which is a two storey family house dating from the early 1960s. The southern boundary of No.3 is opposite the (invisible) boundary between the application land and the triangular land. The objectors' properties are therefore directly opposite the triangular land.
10. In 1938 John Calder purchased the Blackwell Hall Estate. From July 1959 until November 1961 he sold off the five plots upon which the properties in Briar Close were subsequently developed. The parties agreed at the hearing that these disposals formed a building scheme with the individual plots separately and consistently identified on plan and with each conveyance containing similar (but not identical) covenants in favour of a common vendor. Plot 5 comprised the application land and the land upon which 1 Briar Close was subsequently built and was purchased from John Calder by Frederick and Lucy Winter on 12 September 1960. Frederick Winter purchased the triangular land from John Calder on 1 February 1962. The parties did not agree whether the triangular land formed part of the building scheme; the objectors argued for its inclusion, the applicant against.
11. In July 1985 planning permission was granted on the triangular land for the construction of an overspill car park for the golf club. This permission was not implemented. In 1986 the applicant acquired plot 5 together with the triangular land. On 26 August 1987 detailed planning permission was granted for the erection of a detached bungalow and private garage on the application land (Reference No.8/87/228/DM). On 19 November 2003 Darlington Borough Council issued a certificate of lawful use or development confirming that the 1987 planning permission had been implemented within the relevant time period and that such permission remained extant. In 1993 the applicant sold 1 Briar Close to Frank and Nancy Malone, who remain the current owners. The applicant reserved rights of access to the application land across 1 Briar Close.
12. On 8 July 1959 John and Lilian Redpath purchased the freehold interest in plot 2, which has since become known as 4 Briar Close, from John Calder. They proceeded to construct a house on the plot and Mrs Redpath has lived there ever since. Plot 3 was purchased by John and Lilian Redpath in May 1966. The plot was undeveloped at that time and has remained so. In June 1986 Mr and Mrs Redpath gifted plot 3 to their son, Anthony Redpath, who in September 1994 created a settlement (known as the Conniscliffe Road Settlement) for the benefit of his two sons. Anthony Redpath, as settlor, gifted the property in fee simple to John Morse and Lilian Redpath in their capacity as trustees of the settlement. Plot 3 has been used since its acquisition as a garden that is connected directly to, and enjoyed with, 4 Briar Close.
13. Of the remaining two plots that formed part of the building scheme, 2 Briar Close (formerly plot 4) is a chalet style house that lies to the south of plot 3 and is directly opposite the northern half of the application land. 5 Briar Close (formerly plot 1) is a two storey house that lies to the north of 4 Briar Close and opposite the golf club car park. The owners of 1, 2 and 5 Briar Close did not object to the application.

The case for the applicant

14. Mr Coppel identified five grounds of objection. He submitted firstly that Mrs Redpath's statement in her statutory declaration that she would overlook the proposed development from 4 Briar Close was inaccurate and did not bear analysis. It was not possible to see the application land from inside 4 Briar Close nor was it possible to see it from either its rear or front gardens. The view of the application land was masked by the substantial screen of trees and shrubs situated along the length of the boundary between Nos 3 and 4 Briar Close. 4 Briar Close would continue to overlook the triangular land which would remain undeveloped under the proposals.
15. Secondly, Mr Coppel noted from Mr Redpath's evidence that the objectors considered that the proposed development would impact upon 4 Briar Close in terms of additional traffic and car parking. But Mr Redpath himself had acknowledged in his witness statement that parking on the road or footpath would not be a problem:

".... the low speed of vehicles means that they do not cause noise interference… Cars are prohibited from parking on the road or footway and therefore, the visual impact of their passing presence is slight. It has little impact on the residential amenity of Nos. 3 and 4 or on the footway itself".

16. Mr Bainbridge gave evidence that the addition of one further dwelling would not significantly affect the traffic pattern in Briar Close. The traffic using the close was dominated by the golf club which Mr Bainbridge estimated generated some 200 car movements per day. Allowing for a further 32 daily movements from the four existing dwellings in Briar Close, Mr Bainbridge calculated that the proposed development would increase residential traffic generation from 13.7% of the daily total to 16.7%. He also observed that the proposed vehicular access to the application land was from the south west of the site using the right of way reserved by Mr Dobbin across the forecourt of 1 Briar Close. This meant that no traffic entering the application land would pass 2, 3 or 4 Briar Close. Car parking could be accommodated within the application land and vehicles could turn around within the site. Mr Bainbridge concluded that the addition of an extra dwelling would not significantly alter the traffic pattern in the close and that the objectors' properties would not be affected. Mr Coppel noted that Mr Crass had conceded in cross-examination that the traffic issue was not hugely significant.
17. Thirdly, the objectors argued that the proposed development would detrimentally affect the view from the garden at 3 Briar Close. Mr Coppel noted that all of the objectors' arguments in relation to the asserted diminution in the amenity of 3 Briar Close were predicated upon it continuing in its current undeveloped state. But under a covenant in the conveyance of that plot dated 17 November 1961 it was a requirement that a dwellinghouse be constructed. The attributes of 3 Briar Close that the objectors sought to preserve through maintaining the restriction would be destroyed by the residential development that this covenant required to be built. In practice, as Mr Bainbridge said in his evidence, the application land could not be seen from the building line of plot 3 that was identified in the 1961 conveyance (30 feet back from the boundary with the footpath of Briar Close). The view was obstructed by the house at 2 Briar Close and the fence and vegetation along its northern boundary with No. 3.
18. Fourthly, Mr Coppel stated that the objectors had claimed that the proposed development would make the occupation of 3 Briar Close less enjoyable because the proposed development would overlook it. Mr Coppel submitted that the proposed use was for a single storey bungalow, that there would be no development within 10 feet from Briar Close in accordance with the building line contained in the 1960 conveyance of the application land and that the closest part of any development would be the garage. Mr Bainbridge's evidence was that the proposed development would not overlook 3 Briar Close which in any event was on the other side of the road and further separated by two frontages.
19. Lastly, Mr Coppel dismissed as a matter outside of the scope of the restriction the objection that the garden of No.1 Briar Close would lose its capacious quality if the proposed development proceeded. In any event the proposal would result in the creation of a bungalow with a sizeable garden. The application land was not physically separated from the triangular land and together they would give the impression of a garden at least as large as those elsewhere in Briar Close.
20. The applicant further contended that the proposal was supported by planning policy, that the amenity of the neighbourhood would not be adversely affected, that there would not be a material increase in development density and that there would be no reduction in the value of the objectors' properties.
21. Mr Bainbridge submitted that the proposals accorded with local planning policies, in particular policies H3 [Housing] and E2 [Environment] of the Borough of Darlington Local Plan 1997 (incorporating Adopted Alterations 2001). He was of the opinion that these policies supported infill development and that increased housing density was acceptable.
22. Mr Bainbridge considered that the proposals would have no adverse effect upon the amenity of the neighbourhood. Under cross examination he said that he understood amenity in this context to include the general feel and ambience of the locality and accepted that this could include views, privacy and the maintenance of a sense of openness. But the proposals did not affect the views from either 3 or 4 Briar Close and the privacy of the respective owners was not affected. Mr Bainbridge considered that the sense of openness enjoyed by the objectors had effectively been removed following the growth of the tree screen that had been planted by the golf club to prevent golf balls straying onto adjoining residential properties. Mr Dobbin explained that these trees had been planted by the golf club circa 1988 after golf balls had broken windows in 1 Briar Close. He produced a photograph, said to have been taken in 1987, which showed that at that time the boundary between No.1 and the golf course was completely open. The view from the objectors' properties was very different then to the current one which is of a tall evergreen barrier with little indication of the open golf course beyond.
23. In Mr Bainbridge's view the design of the proposed bungalow would not be out of keeping with that of the surrounding properties. There was a wide mix of house types, which Mr Bainbridge described as a hotchpotch, with each plot owner having their own idea of what to build and designing their houses accordingly. The result was buildings of varied size and design, the aesthetics of which would not be adversely affected by the proposed development.
24. Mr Bainbridge gave evidence that the density of residential development in the vicinity of the application land (50 houses in an area, excluding the golf course, of 3.38 hectares) was 14.48 houses per hectare. The proposed development would increase this to 14.77 houses per hectare, or by 1.3%. Taking the area in the immediate neighbourhood of the application land (17 houses in a net area of 0.92 hectares) the respective densities before and after inclusion of the proposed development were 18.55 and 19.65 houses per hectare, an increase of 6%. Mr Bainbridge considered that the existing density was very low and that it would remain so after the proposed development. By the current Government guidelines contained in PPG3 the density, with or without the new bungalow, was extraordinarily low.
25. Mr Bainbridge considered that the proposed development would have no adverse effect on the value of neighbouring properties. He cited three examples elsewhere in Darlington where a house and two bungalows had been constructed as infill development within existing residential areas. He was not aware that any owner affected by the development of these sites had been able to demonstrate that property values had been detrimentally affected as a result.
26. Mr Coppel concluded that the proposed development of the application land was a reasonable user which was impeded by the restriction and that the continuation of that restriction was contrary to the public interest. He noted that the two persons most affected by the proposals, the owners of Nos.1 and 2 Briar Close had not objected. Nor had the applicant reached any settlement with them. The absence of objections from the nearest neighbours was very significant and provided a normative yardstick by which to measure the substantiality of any practical benefits that were secured by the restriction. Those owners did not consider that the proposed modification would injure their interests or deprive them of practical benefits. Nor did they see modification as something for which compensation was due.
27. The restriction did not create or leave in place an immutable historical pattern of development. The purpose of the restriction was to protect the persons entitled to the benefit of it from fundamentally incongruous development. That was not the same as development that represented organic change sympathetic to context and it was such organic change that the objectors were opposed to. But the open views to the east that were enjoyed in the 1960s had now gone and the objectors had ignored the new circumstances.
28. Mr Coppel submitted that both experts had accepted that the development plan's policies favoured a higher density of development than currently existed. He rejected the objectors' argument that this policy warranted increased protection to the objectors under the restriction in order to secure the practical benefit to them of such a very low residential density. Mr Coppel considered that this argument turned section 84(1B) of the Act on its head by treating the development plan as an enemy; the stronger it became the more doggedly must the restriction be defended. Mr Coppel stated that the purpose of this section was not to put the restriction and the development plan into opposition but to make sure that they were in harmony. That section also required the context in which the restriction had been imposed to be considered together with any other material circumstances.
29. Mr Coppel concluded that the application should be allowed under grounds (aa) and (c) since the restriction did not secure to the objectors any practical benefit of substantial advantage or value and it could be modified without injury to them. He also submitted that as the objection from the golf club had been withdrawn immediately before the hearing this should be dealt with, and satisfied the requirements of, section 84(1)(b) of the Act.

The case for the objectors

30. In her statutory declaration Mrs Redpath explained the history of the development of Briar Close and gave details of the acquisition of Nos. 3 and 4 by her and her late husband. They were attracted to the area by its exclusivity, seclusion and privacy. Each of the five development plots was approximately the same size and the common restriction on each of them not to build more than one dwellinghouse meant that the sense of openness and space would be preserved. The unimpeded views across the golf course to the east made it feel as though one were in the countryside. These qualities had been, and remained, of substantial benefit and advantage to her. The vendor from whom she and her late husband had acquired plot 3 had tried unsuccessfully to develop two maisonettes on the site in the mid 1960s. The original covenantee, Mr Calder, had rejected this proposal as being in breach of the restriction and the idea had been dropped. The Redpaths had also opposed the proposals to develop the triangular land as an extension to the golf club car park. Mrs Redpath feared that the pleasant views from the house and garden would become crowded and enclosed if the application was allowed and that she would overlook the new development. The sense of peace and spaciousness that she got when tending the garden at 3 Briar Close would be lost. Mrs Redpath felt that the close had a rural quality and that it was quiet, uncrowded and exclusive. The application land was cramped and inappropriately small for the proposed development. No.3 would be directly overlooked and there would be disturbance from the additional traffic and parking.
31. Mr Zwart submitted that the applicant had incorrectly focused upon the outlook from, and overlooking of, the objectors' properties in relation to the application land. Consideration of the practical benefits secured by the restriction should not be limited to impacts as between plots. The correct approach was that taken by Mr Crass who had looked at the overall picture and had not limited himself to the views to and from 3 and 4 Briar Close. He had also considered the views from the pavement and from within the vicinity. Mr Crass concluded that the original purpose of the building scheme continued to prevail and that, in essence, the status quo had remained unaltered since the 1960s. The building scheme retained its integrity and continued to provide a quiet, exclusive and peaceful place to live for a limited number of residents. Mr Crass said that the proposed development would be inappropriate in terms of siting and design and that it would jeopardise the sense of quietude and spaciousness that were secured by the restriction. He also felt that it would lead to an increase in traffic that, although relatively small, would impact upon the development potential of the vacant plot 3.
32. Mr Zwart submitted that the common restriction against the development of more than one dwelling per plot had safeguarded the character and openness of the land within the building scheme. The restriction therefore had the effect of capping the density of development. Mr Crass stated in evidence that the addition of a further residence in Briar Close would increase the density of its development by 20% or by 25% if the undeveloped plot 3 were excluded. Mr Zwart contended that Mr Bainbridge's calculations could only refine this simple fact. Mr Bainbridge had not identified the density of the building scheme itself but had looked instead at a wider area. However his calculations could not alter the clear materiality of a significant increase in density and the direct contravention of the restriction that the proposed development would entail.
33. Mr Zwart also submitted that there was a difference between (permanent) built development and (temporary) vegetation which, regardless of size, could be cut down. The impact of the proposed development would, to all intents and purposes, be forever and would represent the imposition of a second permanent volume on a single plot where only one building was permitted. The tree screen along the eastern boundary of the application land could be removed at any time; indeed the golf club had mooted the possibility of constructing safety nets to replace the existing conifers. The new bungalow would impact upon the current building scheme that had remained unchanged for some 46 years. The design of that bungalow was nearly 20 years old and its construction would be apparent from the approach, pavement and from the fronts of the plots.
34. Mr Crass believed that it was uncertain whether the bungalow that was the subject of the 1987 planning permission would actually be built. He considered that the applicant would obtain a new planning permission, possibly for a two storey house. Notwithstanding the fact that the modification sought was limited in favour of the 1987 permission only, Mr Crass believed that a precedent would be set and that a further modification would inevitably follow.
35. The objectors accepted the fact that the conifers planted on the golf course adjoining the application land have grown tall. But they argued that their impact upon the building scheme is limited because the scheme was never laid out to create a "grandstand" view of the golf course for the benefit of the properties along the western side of Briar Close. This is evidenced by the scheme allowing for development on the eastern side, both on plot 1 and on the triangular land, which Mr Zwart argued should be included within the building scheme. Mr Zwart submitted that the trees actually increased the rural character of the area.
36. Mr Zwart stated that the presence of the mature tree screen so close to the new bungalow meant that the proposed development was not a reasonable user of the application land since it would be severely over shadowed, a point acknowledged in cross examination by Mr Bainbridge. The chief planning officer, in a letter to the applicant's architects in June 1987, said that he considered the proposed bungalow would constitute over development of the site. He considered it to be a "tight" development that would detract from the character of the area and consequently he did not support the proposal. Since that time the growth of the tree screen had made the site even more cramped. This represented a change in circumstances beyond the power of the applicant to control since the trees were situated on the golf course. This change, together with the applicant's dilatoriness in making the application, meant that the Tribunal was entitled to place less weight on the existence of a planning permission granted nearly 20 years ago.
37. Mr Zwart felt that the statutory development plan was of little assistance in this case because its provisions post-dated the 1987 planning permission that the applicant sought to implement. If anything the plan worked against the interest of the applicant since the Government's more recent moves towards higher levels of housing density and the development of brown field sites such as this meant that the protection afforded by the building scheme was of even more value because it increased the practical benefits to those entitled.
38. Mr Zwart observed that covenant 3 of Schedule 3 of the applicant's title contained a restriction confining the use of plot 5 for the purpose of a (singular) private residence only. He submitted that as there had been no application to modify this covenant, the development of a second dwelling on this plot must necessarily be in breach of it. He concluded that the construction of a second dwelling that could not be used as such because of the restriction in covenant 3 would not be a reasonable user of the land. Any interpretation of the restrictions in covenants 1 and 3 of schedule 3 that allowed for the implied modification of the latter would infect and undermine the totality of the whole building scheme since these are common covenants, mutually enforceable.
39. Mr Crass stated at the hearing that the open market value of 4 Briar Close, which needed modernising, would be close to £500,000. He considered that the open market value of plot 3 with a house developed on it would be in the region of £550,000 to £600,000. The site value for development he considered to be £200,000 to £250,000. The applicants did not demur from these figures which were said to be supported by the current asking price for 2 Briar Close of £465,000. Mr Crass believed that the proposed development would diminish the value of both properties, although No.3 would be more affected than No.4. In answer to questions from the Tribunal Mr Crass stated that, were the modification to be allowed, the open market value of No.3 would be reduced by 10% and that of No.4 by 7.5%. Mr Zwart said the comparables used by Mr Bainbridge were inappropriate because they were geographically remote from the application land and involved the redevelopment of unsightly land.
40. In relation to ground (c) Mr Zwart submitted that for the Tribunal to substitute its consent to the modification where Mrs Redpath had declined to give hers would itself be an injury to her. Such a decision would accept the principle of a second building inside a single plot and would be the thin end of the wedge. The triangular land is not physically separated from the application land and may be used as a garden in connection with it. This garden would overlook both 3 and 4 Briar Close.
41. Finally, Mr Zwart argued that the lack of an objection from the owners of 1 and 2 Briar Close could not be taken as acceptance by them of the proposed modification. Their reasons for not objecting are unknown and the applicant's conjecture about the significance of the absence of such objections should be dismissed as speculation.

Conclusions

Reasonable user and the public interest

42. For the applicant to succeed under section 84(1)(aa) of the Act it is necessary for him to show that the continued existence of the restriction, unless modified, would impede some reasonable user of the land. I have considered the issue of reasonable user on the basis that the restriction does not exist. In doing so I have had regard to the fact that there is an extant planning permission for the proposed development, albeit one that was granted in 1987. Following the case of Re Bass Ltd's Application (1973) 26 P & CR 156, this Tribunal has consistently expressed the view that the existence of planning permission for a proposed development is very persuasive in determining the reasonableness of the user for the purposes of section 84(1)(aa) of the Act.
43. The policy context for considering applications under section 84(1)(aa), and which is a specific requirement for me to take into account under section 84(1B), is contained within the Darlington Borough Council Local Plan 1997 (Incorporating Adopted Alterations 2001). In that plan the application land is shown within the development limits of the urban area of Darlington. Policy H3 (Housing) therefore applies which states that new housing development will normally be approved within that area provided it accords with other plan policies. Development will normally be expected to maintain existing densities and, where appropriate, increase them. The proposed development is therefore in accordance with the development plan policy. I prefer Mr Coppel's interpretation of section 84(1B) of the Act. Conformity with the development plan does not weaken the applicant's case but supports it. I conclude that the existence of a valid planning permission, compliance with the current development plan and the location of the application land within an established residential area means that the proposed user is reasonable for the purposes of section 84(1)(aa) of the Act.
44. Mr Coppel went so far as to suggest that by impeding the proposed user the restriction was contrary to the public interest under section 84(1A)(b) of the Act. I do not agree for the reasons given by the President of the Tribunal in the case of Re Collins' and Others' Application (1975) 30 P & CR 527 at 531:

"In my view for an application to succeed on the grounds of public interest it must be shown that that interest is so important and immediate as to justify the serious interference with private rights and the sanctity of contract. In my judgment this case comes nowhere near satisfying that test."

The mere fact that the proposal has planning permission and accords with the development plan is not of sufficient public interest to override the objections to this application.

Practical benefits

45. Having established that the proposed user is reasonable it is evident that the continued existence of the restriction, unless modified, will impede it. That being so the next question to be answered is whether impeding the proposed user secures practical benefits to the objectors. Before considering the arguments put before me in evidence on this point I turn first to the applicant's submission that the lack of objections from the owners of 1 and 2 Briar Close is highly significant. I agree with Mr Zwart that it is inappropriate to speculate on the reasons why these owners did not object. Their reasons are unknown and it cannot be inferred that their silence is tacit acceptance of the proposals.
46. A number of the objectors' claims in respect of the practical benefits they secure from the restriction are shortly dealt with. From my site inspection it was apparent that one cannot see the application land from inside 4 Briar Close, either at ground or first floor level. Nor is it possible to see it from either the front or back garden of No.4. The view of the application land is blocked by the dense tree and shrub screen at the front of the property and along the boundary with 3 Briar Close. Mr Redpath suggested that this screen becomes less effective during the winter months but any difference is likely to be minimal. 3 Briar Close is closer to the application land than No.4 but it is not immediately opposite it, despite the perverse insistence of Mr Crass during cross examination that it was. Nor is it possible to see the application land either from the centre of No.3 or from the building line except for the birch tree that is to be retained to the north of the proposed garage. There is a 2 metre high, wooden trellis fence between Nos.2 and 3 Briar Close which, together with a conifer and various shrubs, masks the view from No.3 to the southeast.
47. 3 and 4 Briar Close will not be overlooked by the proposed development, not only for the reasons outlined above, but also because there are only two windows in the northern elevation of the proposed bungalow, one in the dining room (which will probably be blocked by the proposed garage) and one in the utility room. The only other windows facing west, and therefore with an oblique view towards the objectors' properties, are located in the breakfast room, the bathroom and bedroom 2. Most of the windows are along the eastern elevation, facing away from Briar Close. All of the windows are at ground floor level. I therefore conclude that by impeding the proposed development the restriction does not secure any practical benefits to the objectors in terms of protecting an existing view or preventing overlooking.
48. Nor do I consider that the restriction secures any such practical benefit in terms of preventing an increase in traffic generation or disruptive on-street parking and this was not an argument that was pressed strongly by the objectors. It is clear that the great majority of traffic is generated by the golf club and that any increase caused by the proposal will be minimal. The vehicular entrance to the new bungalow is to the south of Briar Close and well away from Nos. 3 and 4, and there is provision within the application land for off-street parking.
49. Mr Zwart submitted that the fact that the application land formed part of a building scheme meant that it was necessary to go beyond considerations of sight lines between the objectors' properties and the proposed bungalow. He referred me to the case of Gilbert v Spoor [1983] Ch 27 and submitted that this was authority for the objectors' contention that the Tribunal is required to consider the adverse effects of the proposal upon a broad basis. That case involved the protection of a fine view that, whilst not being available from the objector's own property, was enjoyed by him within a minute's walk. The court rejected the applicant's case that in order to bring this within section 84(1A) of the act the practical benefit of substantial value must be one enjoyed actually from the objector's land. In doing so Waller LJ said at 35:

"If on a building estate a restrictive covenant is broken by any plot holder it is potentially an interference with the rights of all the other plot owners. It may be such that it is a momentary irritation to the owner of the land some distance away. The nearer it is the greater the possibility of it being an interference with the amenities of owners. If a building estate contains a pleasant approach with restrictions upon it and some building is done contrary to those restrictions which spoils the approach, if then the owner of a plot complains about that breach, the fact that he does not see it until he drives along the road, in my opinion, does not affect the matter. He is entitled to the estate being administered in accordance with the mutual covenants, or local law; so in this case."

50. Mr Coppel submitted that the circumstances of Gilbert were far removed from those in the present case. The proposal did not interfere with any noteworthy view enjoyed by the objectors, whether within or outside of their properties. That much was clear from my site inspection; any view that the objectors had to the east has now been blocked by the mature evergreen tree screen. The only remaining open views are to the north east across the golf club car park and these are unaffected by the proposals. But in my opinion Mr Coppel's argument is based upon too narrow a construction of the decision in Gilbert. The passage cited above refers to interference with the amenities of the owners on a building estate and is not necessarily limited to interference with a particular view. In the present case the amenities that are protected by the restrictions upon which the building scheme is based include a low density of development and a pleasant and peaceful ambience in Briar Close. In my opinion these constitute practical benefits that are secured in favour of the objectors by the restriction.

The substantiality of the practical benefits

51. My consideration of whether these practical benefits are of substantial value or advantage to the objectors has been based initially upon the assumption that the triangular land is excluded from the building scheme as submitted by the applicants. It seems to me that if such substantiality can be demonstrated under these circumstances there will be no need for me to consider the detailed legal submissions on the extent of the building scheme presented by counsel at the hearing.
52. I turn firstly to the question of whether the practical benefits are of substantial value to the objectors. Mr Bainbridge submitted that the proposed development would have no effect upon the value of the objectors' properties, whilst Mr Crass argued that were the application to be allowed the value of 4 Briar Close would be reduced by 7.5% (£37,500) and that of 3 Briar Close by 10% (£20,000 to £25,000). When asked about how he had arrived at these figures Mr Crass commented that he just thought it would have this effect and that there had to be a difference in value due to the modification of the restriction, albeit one that was difficult to quantify.
53. I acknowledge the difficulties that the valuers faced in this case and their need to make a subjective judgment about the impact of a new bungalow in Briar Close. I also acknowledge the limitations of Mr Bainbridge's comparables. However, I consider that Mr Crass's estimate of the effect of the proposal upon the value of 3 and 4 Briar Close is exaggerated and that the effect upon value would be nominal. I think Mr Crass's conclusions have been coloured by his insistence at the hearing that the proposed bungalow would not in fact be built, but would be substituted in due course by a house that would have a significantly greater impact upon neighbouring property values. I accept Mr Coppel's submission that the modification being sought is by way of a proviso that will limit any development to that which is the subject of the 1987 planning permission. It is the impact of that development, and nothing else, that falls to be considered in this case. I have also had regard to the fact that the proposal will have no direct effect upon the objectors' properties in terms of view, overlooking or traffic generation. I do not consider that a nominal diminution in value can be said to be substantial for the purposes of section 84(1A)(a) of the Act.
54. I turn now to the question of whether the restriction secures any practical benefits of substantial advantage to the objectors. I have identified these benefits earlier as including the low density of development and the pleasant and peaceful ambience of the building scheme. The scheme designated one dwelling per plot at a planned density of approximately 11.5 dwellings per hectare (based upon the agreed plot areas). I have calculated this figure by including an allowance for the road and assuming (as the original vendor intended) that plot 3 is developed. The density of development within the building scheme if the application is allowed would rise by 20% to some 14 dwellings per hectare. In this I agree with Mr Crass's estimate of the percentage increase in density. The figure of 14 dwellings per hectare, however, is close to Mr Bainbridge's estimate of the residential density of the wider area (encompassing 50 dwellings) which he calculated is currently 14.48 dwellings per hectare. But density does not tell the whole story; plot size is also relevant.
55. From the agreed statement of facts I calculate the average area of each plot within the building scheme to be approximately 769 sq m, although the average size of the four plots to the west of Briar Close is only some 674 sq m. The difference is due to the fact that plot 5, of which the application land forms part, is 58% larger than the next biggest plot (2 Briar Close). The subdivision of plot 5 has left 1 Briar Close on a site of 695 sq m which is larger than the average for the properties on the western side of the close. But at 454.7sq m the application land is just over two-thirds of that average plot size. Although the triangular land is not part of either the application land or the 1987 planning permission it is owned by the applicant and is, to a casual observer, conjoined with the application land, there being no physical barrier between the two. Furthermore there is a user restriction contained in the original conveyance of the triangular land which states that the land shall only be used for the purposes of a private garden. Were the application and the triangular land to be occupied together, as seems probable (although this was not stated in terms by Mr Dobbin at the hearing), the resultant plot will extend to 745.7 sq m which is comfortably above the average for the existing dwellings.
56. In considering this analysis of density and plot size I have had regard primarily to the overall effect of the proposal upon the integrity of the scheme. As the President of the Tribunal said in Re Collins' and Others' Application at 529:

"However, it is not merely the arithmetic of the density which matters, but the general effect on the amenity of the area."

The existence of a building scheme also increases the presumption that the restriction will be maintained. Thus in the case of Re Bromor Properties Ltd's Application (1995) 70 P & CR 569 the member, Mr P H Clarke, said at 582:

"But what is the effect of this finding [that a building scheme exists]? Does it assist the objectors, adding strength to their objections and putting a greater burden of proof on the applicants? I think that in general it does. The existence of a building scheme establishes a system of local law applicable to the whole estate, so that those with the benefit of it can expect to see that law observed throughout the estate and can expect to be able to enforce it even though they may be affected only indirectly or temporarily by a breach.... in short, I think that the effect of my finding of the existence of a building scheme is that there is a greater presumption that restrictive covenants will be upheld and therefore a greater onus of proof on the applicants to show that the requirements of section 84 are satisfied."

57. This is a small building scheme extending to only five plots. It came into effect in the early 1960s and has retained its integrity ever since. Its original purpose is still being fulfilled. Despite its small size the building scheme has achieved the creation of a pleasant, quiet cul-de-sac with low-density residential development. The presence of the golf club to the north does not detract from this. I acknowledge that the sense of openness and spaciousness has been affected by the rapid and overbearing growth of the tree screen along the boundary with the golf course. It is also apparent that there is no realistic prospect that this screen will be removed in future given its function of preventing golf balls straying from the course. But there was no requirement under the building scheme to protect the views over the golf course for the benefit of the houses on the west of Briar Close and the restriction never secured such a benefit.
58. Nor does the restriction require 1 Briar Close to be constructed where it is on plot 5. It could have been constructed on the application land to the north. The reason that it was sited further south is probably due to the much greater width of the plot at that point. The southern boundary of plot 1 is nearly twice as wide as the northern boundary (24.8m and 12.7m respectively). In my opinion the location of the proposed bungalow on the application land would give that land a cramped and over developed appearance. This would be especially noticeable given the narrowness of the road. It would occupy a site that is two-thirds of the average area of the other plots within the building scheme. The density of development of the scheme would increase by 20%, although it would remain low and in harmony with that of the surrounding area. But the building scheme has created a local environment that is distinct in character from that of neighbouring roads such as Briar Walk. The presence of the tree screen on the golf course to the east does not alter my conclusion that the density and character of the building scheme would be adversely affected were the proposal to be allowed and that their maintenance is a practical benefit of substantial advantage to the objectors. If anything the enclosing effect of the trees has made it more important to keep the application land undeveloped in order to maintain the scheme's sense of spaciousness.
59. In reaching this conclusion I have assumed that the triangular land is excluded from the building scheme and is therefore not subject to any covenants in favour of the objectors. The application land may or may not be occupied with the triangular land but there is no guarantee that the latter will remain undeveloped. In the past it has received planning permission for development as an extension to the golf club car park. Nevertheless I consider that the protection of just the application land from development will itself secure the benefits of low density, quietude and spaciousness that I have described above. Had I found that the triangular land was included within the building scheme, as the objectors contended, it would have strengthened these arguments and conclusions.
60. I have also had regard to the matters set out in section 84(1B) of the Act, including the provisions of the development plan. I acknowledge that this favours residential development and encourages higher density development, but I do not consider that these policy issues, applied to an individual plot, outweigh the increased presumption under a building scheme that the restriction will be maintained.

Grounds (aa) and (c)

61. I find that the applicant has failed to satisfy the requirements of ground (aa) and I therefore refuse the application under this ground. Having found that the restriction secures practical benefits of substantial advantage to the objectors it follows that those objectors would be injured by the proposed modification. The application is therefore refused under ground (c) also.
62. Having reached these conclusions it is not necessary for me to consider the objectors' arguments regarding the effect of covenant 3 in the third schedule of the 1960 conveyance. However I do think it would be useful for me to comment on the submission made by Mr Coppel that as the golf club had withdrawn its objection I had jurisdiction to deal with it under ground (b). I do not believe this to be the case. The word 'or' separates each of the four grounds of section 84(1) of the Act and it therefore seems to me that it is necessary for the applicant to make out a case wholly under one ground or another. It is not open to the applicant to pick and choose between the four grounds in relation to a particular restriction, resolving some objections under one ground and some under another. So in the present case it is not possible for the applicant to argue that the golf club's objection should be considered satisfied under ground (b) and that of the other objectors under ground (aa) or (c). As I suggested at the hearing the solution to this potential difficulty is to deal with all three objections under the latter two grounds since, by entering into a consent agreement, the golf club is no longer entitled to the benefit of the restriction nor can it be injured by its modification. However the golf club did not sign a deed of release and it is seemingly entitled to object to any further application in respect of the application land.
63. The applicant has not succeeded in establishing any of the grounds relied upon and the application is therefore refused. A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided. The attention of the parties is drawn to paragraph 22.4 of the Lands Tribunal Practice Directions of 11 May 2006.

Dated 30 August 2006

A J Trott FRICS