England and Wales Lands Tribunal

 


Dartmouth & Anor v No Respondent [2006] EWLands LP_64_2004 (08 June 2006)

LP/64/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT- modification – conversion and extension of dwelling house into self-contained apartments – no outstanding objections – whether the persons entitled to the benefit of the restrictions agreed to modification – ground (b) not established – practical benefits of substantial value or advantage where there are no objections – application granted – Law of Property Act 1925 s84(1)(aa)(b)(c)(1A)(1B) and s84(6)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

LAW OF PROPERTY ACT 1925

BY

CHARLES DARTMOUTH

and

BERNICE DARTMOUTH

Re: Three Penny Bit,

33 East Street,

Fareham,

Hants PO16 0DF.

DETERMINATION WITHOUT AN ORAL HEARING UNDER RULE 27,

LANDS TRIBUNAL RULES 1996

by A J Trott FRICS

The following cases are referred to in this decision:

Re Bass Limited's Application [1973] 26 P & CR 156

Re Purkiss' Application [1962] 1WLR 902

University of Westminster v President of the Lands Tribunal [1998] 3 ALL ER 1014

Re Fairclough Homes Limited's Application (2004) (Lands Tribunal, LP/30/2001), [2004] EWLands LP_30_2001

Gilbert v Spoor [1983] Ch27

DECISION

Introduction

1. This is an application by Charles and Bernice Dartmouth (the applicants) under section 84 of the Law of Property Act 1925 (the Act) seeking the modification or discharge of restrictive covenants affecting freehold land comprising a dwelling house known as "Three Penny Bit" at 33 East Street, Fareham, Hampshire (the application land). If successful the application will allow the erection of a single storey side and rear extension and a second floor extension to enable conversion of the property into four self-contained apartments.
2. The restrictions in question were imposed under two conveyances. Firstly, a conveyance of the application land dated 3 September 1954 made between Patrick Stevenson and Frank Hawkins (the 1954 conveyance) and secondly a conveyance of the application land dated 4 August 1971 made between Thomas Gage and the applicants (the 1971 conveyance). The applicants have been unable to produce copies of either deed of conveyance.
3. The 1954 conveyance contained four restrictive covenants of which the applicants consider numbers 2 and 3 to be the material restrictions for the purposes of the application:

"2. Not more than one house should be erected upon each of the plots of land numbered 6 and 7 on the said plan the plans of each such house having first been approved by the Vendor's Surveyor.

3. No trade or manufacture or business should be carried on upon any of the said plots nor should any house erected thereon be used for any purpose [other] than that of a private dwellinghouse but nothing therein should be deemed to prevent the carrying on of a recognised profession."

4. The 1971 conveyance contained seven restrictive covenants of which the applicants consider numbers 1 and 3 to be the material restrictions for the purposes of the application:

"1. Not to erect on the land hereby conveyed any building other than one detached dwellinghouse with ancillary outbuildings such dwellinghouse to have an internal floor area of not less than one thousand two hundred square feet exclusive of outbuildings and garages.

….

3. not to use the said dwellinghouse other than as a private dwellinghouse for one household only and not to convert the same into flats or for a dwelling in multiple household occupation."

5. Detailed planning permission was granted on 26 June 2001 (reference No.P/00/1334/FP) for the "erection of single storey rear/side and second floor extension to enable conversion to four apartments". On 27 June 2003 the local planning authority approved an amendment to the permission permitting the change of facing brickwork to tile hanging at second floor level (reference P/00/1334/MA/A).
6. By an application dated 20 September 2004 the applicants seek the modification or discharge of the restrictions referred to above. In doing so they rely upon grounds (aa), (b) and (c) of section 84(1) of the Act. Reliance upon ground (b) is in respect of all persons who consented to the application, or did so after it was made; all persons who did not object to the application; and all persons who, having objected, withdrew their objections before, during or following the hearing. In a letter dated 28 March 2006 and in their subsequent written submissions the applicants stated that they were seeking a modification order only and that they were not seeking an order discharging these restrictions. The applicant did not propose a form of wording for such modification.
7. There was one objector to the application, Mr and Mrs E Bayer of Woodcote Lodge, 6 Bridgefoot Drive. This objection was withdrawn on 20 January 2006, the objector having agreed to enter into a deed of release with the applicants which would become unconditional in the event that the Tribunal made an order for the modification of the restrictions affecting 33 East Street so as to permit the implementation of the 2001 planning permission. In the light of the withdrawal of the only objection the applicants wrote to the Tribunal on 24 January 2006 asking the Registrar whether an order could now be made to modify the covenants. I had been allocated the case by the President on 6 January 2006 and so this request was passed to me for consideration. Having done so I declined to make the order requested because I did not accept the applicants' submission that, with the withdrawal of the only objection, ground (b) of section 84(1) had necessarily been established. I reached this conclusion because three of the persons who had the benefit of the restrictions wrote in support of Mr and Mrs Bayer's objection and had not withdrawn their opposition to the application. I deal with this point at length in paragraph 36 et seq below. Upon the application of the applicants I agreed to proceed without an oral hearing and the applicants submitted written representations on 27 April 2006.
8. I made an accompanied inspection of the application land on 24 April 2006. I viewed the existing dwellinghouse both internally and externally and from the flat roof of the first storey. I did not view the application land from within any of the properties that have the benefit of the covenants although I viewed it from the surrounding public highways, ie East Street, Bridgefoot Drive, Bridgefoot Path and Lysses Path.

Facts

9. 33 East Street is a two storey, detached house constructed in the early 1970s. The property was built by the applicants to their own design. It is constructed from cavity brick and block walls with brick faced elevations under a flat felt roof. It has a balcony and patio area at first floor level above the double garage. There is a parking bay for two cars at the front of the house. The property, which is set well back from East Street, has a distinctive and individual appearance that is different to, and generally more modern than, the other houses in the area. The premises are approximately 500 metres from the High Street and some 2 kilometres from the railway station. Junction 11 of the M27 is approximately 1 kilometre to the north east.
10. The proposed second floor extension will raise the height of the existing house by 2.8 metres to approximately 8.5metres. Under a condition of the planning permission the second floor windows which are proposed to be inserted into the south western elevation shall be glazed with obscure glass and retained in that condition. It is another condition that at no time shall any windows or other openings (except as shown on the approved plans) be inserted into the second floor level of that elevation without the prior written consent of the local planning authority.
11. To the west of the application land is "Montana", 9 Bridgefoot Drive which is owned by Mr J Lincoln. This property is a part single, part two storey detached house with a shallow pitched roof. It is lower than 33 East Street even though it is on higher ground (East Street slopes down from the west). The single storey part of Montana is at the rear of the house and is directly overlooked by No.33. The two storey part at the front is set forward of No.33. The two houses are approximately 4m apart at their closest point. There is a mature tree and shrub screen along the length of the boundary between the two properties. At their closest point the houses are separated by shrubs which appear to be on Mr Lincoln's side of the boundary.
12. To the north west of the application land is Woodcote Lodge, 6 Bridgefoot Path. This property is a detached house owned by Mr and Mrs E Bayer. Woodcote Lodge does not overlook the application land and, because of the mature evergreen tree screen at the rear of the application land, cannot be seen from it. There are no windows in the gable end of Woodcote Lodge that face the application land. Between Woodcote Lodge and the application land is a garage, the side wall of which effectively forms the boundary between the two properties, although there is also a dilapidated wooden fence at the end of the garden of the application land. Adjoining this garage to the east is a wooden shed. There is therefore an effective and continuous boundary treatment formed by these buildings.
13. To the east of the application land lies 35 East Street. This property is now owned by Mr J Mould and Ms H Townsend. The property was previously owned by Mr and Mrs Cockman with whom the applicants entered into a deed of release in November 2002. Under this deed Mr and Mrs Cockman released the benefit of covenants 2, 3 and 4 in the 1954 conveyance and of covenants 1, 2 and 3 in the 1971 conveyance. The deed of release is binding upon successors in title and for the purposes of this application the owners of 35 East Street are not entitled to the benefit of these covenants.
14. The applicants were unable to provide copies of either the 1954 or the 1971 conveyances. They therefore used the best evidence available to them to determine the persons who were likely to be entitled to the benefit of the restrictions under those two conveyances. The land benefited by the restrictions contained in the 1954 conveyance is not specifically identified in the office copy entries (OCE) of the application land. From notes on the OCE and from the only original deed that they were able to find, a conveyance dated 8 March 1956 which formed the root of title of Mr Lincoln, the applicants concluded that the persons entitled to the restrictions under the 1954 conveyance were likely to be the owners of Nos.1, 1A, 2, 7, 8 and 9 Bridgefoot Drive and 35 East Street. The status of 6 Bridgefoot Drive (Woodcote Lodge) and of 37 East Street was, and remains, uncertain.
15. The land benefited by the 1971 conveyance is more readily ascertainable since the restrictions are said to be for the benefit of the vendor's property known as "Brenchley". At that time "Brenchley" comprised 33 and 35 East Street and what is now 6 Bridgefoot Drive. As with the 1954 conveyance the position of 37 East Street under the 1971 conveyance appears uncertain.
16. In April 2004 the applicants, through their solicitors, wrote to all nine persons who they thought might have the benefit of the 1954 and 1971 covenants. Of the replies received Ms J Reading of 1 Bridgefoot Drive stated that she wished to claim compensation in the event of an order being made in the applicants' favour. Mr and Mrs Gibbs of 2 Bridgefoot Drive replied that they were not in favour of the proposed development. Mrs Gillen of 8 Bridgefoot Drive wished to "strongly evoke the terms of the restrictive covenant clearly stating that there should only be a single dwelling unit on this land".
17. Mr Lincoln of 9 Bridgefoot Drive wrote a letter of objection to Fareham Borough Council against planning application No.P/00/1334 in December 2000 citing the restrictive covenants and arguing that the scale of the proposed development would be overbearing and intrusive and would involve the loss of trees along his boundary. Following the grant of planning permission in June 2001 the applicants continued to discuss their proposals with Mr Lincoln. To allay the latter's fears that the appearance of the new second storey would be overbearing the applicants agreed to clad the second storey elevation with tiles to make it appear more like a roof. The applicants relied upon alleged assurances from Mr Lincoln that, given these changes in elevational treatment, he would not object to their proposals. In the event, however, negotiations between the applicants and Mr Lincoln broke down in November 2003 and Mr Lincoln apparently indicated that he would object to an application to modify or discharge the covenants. The applicants said that had they known this earlier they would not have negotiated the deed of release with the then owners of 35 East Street, Mr and Mrs Cockman. The applicants stated that they had incurred losses amounting to £20,000 arising from reliance on the alleged assurance from Mr Lincoln that he would not object. In a letter to Mr Lincoln on 19 April 2004 the applicants stated that "an estoppel could well arise in this instance and that it would unconscionable …. to renege on what [the Lincolns] agreed with [the applicants] at an early stage in view of the detrimental reliance to which …. it gave rise on the part of [the applicants]". The applicants proposed that the Lincolns entered into a formal deed of release under which no consideration would be payable and in return for which the applicants would waive any financial claim against them. No substantive response to the letter of 19 April 2004 was received from the Lincolns and it appears that no such deed of release was entered into.
18. In the event none of the persons entitled to the benefit of the 1954 and/or 1971 covenants objected to the application except for Mr and Mrs Bayer of 6 Bridgefoot Drive. The witness statement of Mr and Mrs Bayer, submitted in December 2005 before the withdrawal of their objection, was accompanied by six letters of support. Three of these were from persons who the applicants accept are entitled to the benefit of the 1954 covenants, ie Mr and Mrs Gibbs of 2 Bridgefoot Drive, Mrs M Gillen of 8 Bridgefoot Drive and Mr Lincoln of 9 Bridgefoot Drive. The other three were from residents of Bridgefoot Drive who do not appear to have the benefit of the said covenants. All of the letters were written in December 2005 except that from Mr and Mrs Hurren of 3 Bridgefoot Drive, which was undated.

The case for the applicants

19. The case for the applicants was contained in the written representations submitted on 27 April 2006. These referred to, and relied upon, witness statements produced by Mr Charles Dartmouth (the applicant) and Ms Debra Samways of Brook Oliver, solicitors of New Milton, Hampshire and two expert reports produced by Mr Stephen Downham FRICS, a Director of Hughes Ellard Limited, Chartered Surveyors of Fareham. Mr Downham's reports were dated 8 December 2005 (valuation) and 8 May 2006 (planning). Mr Dartmouth's statement dealt with the history of his ownership of the application land and of the current proposals. It also gave the background to negotiations with both Mr Lincoln and Mr and Mrs Bayer. Ms Samways' statement gave details of the efforts made by the applicants to ascertain which parties had the benefit of the two covenants.
20. The applicants acknowledged that it had been a difficult task to ascertain who had the benefit of the 1954 and 1971 covenants (the result of their researches are summarised in paragraphs 14 and 15 above). In their objection Mr and Mrs Bayer claimed the benefit of the 1954 conveyance but did not provide supporting evidence. Nevertheless, the applicants have stated that the relief contended for should also allow for the possibility, no matter how remote, that operative restrictions may exist in the context of a hitherto undisclosed building scheme.
21. The applicants submitted that only Mr and Mrs Bayer benefited from the 1971 conveyance once the owner of 35 East Street had signed a deed of release in 2002. They had now withdrawn their objection and were consenting to the modification order sought. If an order were to be made by the Tribunal then Mr and Mrs Bayer have agreed (for a consideration) to release the applicants from the restrictions contained in 1954 and 1971 Deeds.
22. The position of Mr Pedley at 37 East Street was uncertain in respect of both the 1954 and the 1971 conveyances but the applicants did not believe that he had the benefit of either of them and observed that he had not objected to the application.
23. Given that there were now no objectors against the application the applicants submitted that ground (b) of section 84(1) had been established. They recognised that Mr and Mrs Bayer had produced six letters addressed "To Whom It May Concern" in support of their objection and which were said by Mr and Mrs Bayer to have been written by persons who "strongly object" to the proposed development. The applicants contended, however, that such evidence should be discarded because it was subsumed within the withdrawal of Mr and Mrs Bayer's objection and could not stand in isolation.
24. The applicants submitted that three of the parties who had written such a letter did not have the benefit of the restrictions affecting the application land. These were Mr and Mrs Hurren, Dr McGrath and Mr and Mrs Wilson of 3, 4 and 5 Bridgefoot Drive respectively. Alternatively, the applicants contended that these were informal objections that had come too late and should be excluded.
25. The remaining three persons who had supported Mr and Mrs Bayer's objection all had the benefit of the restrictions and were formally notified of the application. However, none of them served a notice of objection or a claim for compensation. Their latest correspondence was informal and should be excluded.
26. The applicants contended that, if the Tribunal was not satisfied that ground (b) had been established, then the application under ground (aa) was an alternative to that under ground (c). The latter ground applied where the proposed modification would not injure the persons entitled to the benefit of the restrictions and this was a question of fact. The proposals did not involve new buildings replacing the existing one and would not cause annoyance by overlooking, loss of outlook, overcrowding or increased traffic. They would not create a purpose-built block of flats set amongst an estate of houses. Instead the proposals were mainly an internal conversion of an existing building, albeit with the addition of a second storey and a side extension. The construction works would be insubstantial and of limited duration. There was no evidence of any loss in value and the "thin end of the wedge" argument was answered by the need for each case to be decided upon its own facts at the appropriate time. The applicants contended that any objection to the application would be frivolous or vexatious and therefore not well-founded. The applicants also relied upon the argument that an additional storey could have been added to extend the use of the existing building as an enlarged dwelling house without being in breach of any of the covenants. The lack of any objections was considered by the applicants to indicate acquiescence in the proposals and in those circumstances they submitted that no compensation should be awarded for any loss or damage suffered.
27. With regard to section 84(1)(aa) of the Act the applicants submitted that the Tribunal should consider the questions first raised in Re Bass Limited's Application [1973] 26 P & CR 156:

(1) Is the proposed user reasonable?

(2) Do the covenants impede that user?

(3) Does impeding the proposed user secure practical benefits to the objectors?

(4) If the answer to (3) is yes, are those benefits of substantial value or advantage?

The applicants contended that the answer to questions (1) and (2) was yes but that the answer to question (3) was no. Question (4) was therefore redundant.

28. The applicants relied upon the valuation and planning evidence of Mr Downham in support of their submissions under ground (aa). He referred to several conditions attached to planning permission P/00/1334/FP which protected the amenities of nearby residents. These included conditions requiring the installation and retention of obscure glazing into the proposed second floor windows overlooking 33 East Street, the protection of existing trees and shrubs, the provision of sound insulation and restrictions on working hours and the disposal of site materials.
29. Mr Downham contended that the restrictions which were the subject of the application only applied to the conversion of the property to multiple occupation and not to the enlargement of the building. He therefore concluded that any impact upon adjoining properties as a result of such an enlargement need not be considered. In any event, however, he considered that the proposed enlargement did not impact upon the value of any adjoining or neighbouring property. Nor did the enlargement affect the external appearance of the property. There would be additional car parking spaces in the front drive which might impact on the street scene and possibly properties at 9 Bridgefoot Drive and 35 East Street but on nobody else. The mature trees to the rear of the application land effectively screened the enlarged building from neighbouring properties.
30. There would probably be an increase in traffic movement onto East Street as a result of the proposed development, that street being a major access route into the town centre from the M27 and A27. 35 East Street was set far enough away from the proposed car parking area for it not to cause concern. Although 9 Bridgefoot Drive was situated in close proximity to the new parking area there was already an existing hard standing and turning space in that location and therefore any marginal additional disturbance should be minimal.
31. Mr Downham considered that any future impact through noise would be minimal given the existing use of the property as a family home and the extensive tree screening around the rear garden. Having considered what he took to be all the possible matters that would impact upon the adjoining properties, namely visual impact, traffic movement and noise, Mr Downham concluded that there would be no adverse effect on the value of adjoining property.
32. Mr Downham's second expert report dealt with the planning issues to be taken into account by the Tribunal under section 84(1B) of the Act. He described the relevant policies of the Fareham Borough Local Plan which was adopted on 31 January 1992 and of the review of that plan that was adopted on 23 March 2000. In particular he identified planning policy H6 of the review as allowing for the subdivision of existing dwellings in the urban area for the purposes of multiple occupation, provided that the property to be converted is not a small family dwelling, that a satisfactory living environment is provided for the occupants and that the proposal, or its cumulative impact with other similar proposals, would not adversely affect the character of the area, or have unacceptable environmental amenity or traffic implications. The proposal should also, where appropriate, meet the criteria in policies DG3, HE2, and HE4. Policy DG3 was concerned with impact on the surrounding area. Under this policy development would be permitted provided it did not detract from the existing landscape, streetscene, skyline and building line, was in keeping with the character of the surrounding area in terms of scale, layout, density, form, mass, height, and space around and between buildings, and did not conflict with adjoining land uses or result in a volume of traffic that would adversely affect the amenity of the surrounding area.
33. Mr Downham stated that the demand for smaller residential units and the conversion of larger properties into small flats had changed dramatically over the last 20 to 30 years. He submitted that schemes were now put forward on a regular basis for converting existing buildings into a large number of flats. He cited, in general terms, areas of Portsmouth and Southsea where such conversion had taken place. He contended that conversion of properties of similar style to 33 East Street have become more prevalent over the last 10 years as the demand for one and two bedroom properties had increased, helped by Government policy that encouraged such development to help meet housing need. Mr Downham concluded that planning permission P/00/1334/FP was in keeping with local authority planning policies and that there was now a greater demand for smaller residential units than previously.

Conclusions: the identification of the persons entitled to the benefit of the restrictions

34. The applicants were unable to produce to the Tribunal either the 1954 conveyance or the 1971 conveyance. However from the originating application and the witness statement of Ms. Samways, I am satisfied that I have sufficient evidence of those instruments as I think sufficient for the purposes of Section 84 (6) of the Act.
35. I conclude that the owners of numbers 1, 1A, 2, 7, 8 and 9 Bridgefoot Drive and 35 East Street are persons having the benefit of the restrictions in the 1954 conveyance. I have seen no evidence to establish that 6 Bridgefoot Drive has the benefit of those covenants. I further conclude that the owners of 6 Bridgefoot Drive and 35 East Street are persons having the benefit of the restrictions in the 1971 conveyance. The position with regard to 37 East Street is uncertain with respect to both conveyances but no objection has been received from the owner of that property.

Conclusions: Section 84 (1)(b) of the Act.

36. Under Section 84 (1)(b) of the Act, the Tribunal has the power to discharge or modify any restriction arising under covenant on being satisfied:

"(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction… have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified;"

37. The applicants submitted that this ground had been satisfied following the withdrawal of the only objection to the application. Those persons entitled to the benefit of those restrictions who did not object are said to have agreed to the restrictions being modified by implication and by omitting to act. Mr and Mrs Bayer are said to have so agreed expressly through their act of withdrawal. In reaching this conclusion the applicant referred to the judgement of Upjohn LJ in Re Purkiss' Application [1962] 1WLR 902 at 911, where he said, in respect of persons entitled to the benefit of the restrictions contained within a covenant:

"The fact that there may be such persons and that they have not appeared before the Tribunal can not effect their legal rights, save to this extent. If they choose to take no objection before the Tribunal in relation to the proposed modifications and the Tribunal sees fit to make modifications, they are, of course, bound by those modifications…"

I do not consider that this passage goes to question whether all persons entitled to the benefit of the restrictions have agreed, whether expressly or by implication, to the same being modified.

38. I accept that by withdrawing their objection and agreeing to enter into a deed of release, Mr and Mrs Bayer have agreed to the proposed modification of the 1971 restrictions (and also the 1954 restrictions should they apply). The current owners of 35 East Street are bound by the deed of release of their predecessors in title, Mr and Mrs. Cockman, dated 28 November 2002 and are thus taken to be in agreement. It is not certain whether Mr. Pedley, the owner of 37 East Street, has the benefit of either the 1954 and/or 1971 restrictions. But he has not objected and there is no other evidence to refute what I consider in the circumstances of this case to be his implicit agreement by not doing so. I therefore find that the requirements of Section 84 (1)(b) of the Act have been satisfied in respect of the proposed modifications of restrictions 1 and 3 of the 1971 conveyance.
39. The applicants submitted that the six letters from neighbours which had been obtained in support of their objection by Mr and Mrs Bayer could not stand in isolation and should be taken to be subsumed within the withdrawal of that objection. None of the six correspondents objected to the application. Three of the six letters were sent by persons who do not appear to be entitled to the benefits of the restrictions in the 1954 conveyance. But the other three persons all have such benefit. The letters from Mr and Mrs Gibbs and Mr. Lincoln make reference to the covenants. That from Mrs. Gillen refers to her objection to "planning permission being given" for the conversion of the application land into flats and does not refer to the covenants. All three letters were written in December 2005. There is no evidence that the views expressed in the letters have changed since that time nor that the correspondents only intended them to form part of Mr and Mrs Bayer's objection rather than to reflect their independent views. None of them have been expressly withdrawn.
40. In the case of University of Westminster v President of the Lands Tribunal [1998] 3 ALL ER 1014 Chadwick LJ offered a number of observations which he considered may be of future assistance to the Tribunal. In relation to Section 84 (1)(b) he stated at 1023:

"(3) It is a question of fact whether or not ground (b) is made out in circumstances in which the only material from which agreement can be established is the failure of persons to whom notice of application has been sent to respond to the notice. There is no presumption that failure to respond is sufficient evidence of agreement. The tribunal must ask itself whether, in the particular circumstances before it, it is appropriate to draw the inference that the absence of response is the result of agreement rather than inertia or misunderstanding. The tribunal is bound to consider how a person served with a notice would be likely to react. It is only if the tribunal is satisfied, on the balance of probabilities: (1) that every person 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 interests in the property to which the benefit of the restriction is annexed, has been served with notice, or has otherwise become aware, of the application; and (2) that any such person who was not in agreement with the proposal to discharge or to modify the restriction (as the case may be) would think it necessary to object in order to protect his interest that the tribunal can exercise jurisdiction under ground (b) in a case where there is no other evidence of agreement."

41. In the present case there are two recent letters written by persons whom the applicants accept are entitled to the benefit of the restrictions in the 1954 Conveyance which, although not objections, expressly disagree with the proposed modification or discharge of the 1954 restrictions (the applicants' proposal not to seek the discharge of those restrictions was not known at the time those letters were written). The third letter of disagreement refers to planning permission rather than the restrictions. I find that in the particular circumstances of this case, Mr. and Mrs. Gibbs and Mr. Lincoln cannot be said to have agreed to the 1954 restrictions being discharged or modified and that the requirements of section 84 (1)(b) have not been satisfied with respect to the 1954 conveyance.

Conclusions: section 84 (1)(c) of the Act

42. The Tribunal's power to discharge or modify restrictive covenants under this ground depends upon it being satisfied:

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

43. It is the proposed discharge or modification of the restrictions, rather than the proposed development, which must not be injurious. However, I consider that the effect of the proposed development upon those persons entitled to the benefit of the restrictions is of paramount importance in this case since such development is the reason for the applicants seeking an order for the modification of the restrictions. The applicants have argued that the proposed development will not disadvantage its neighbours. They state that there are no new buildings, no annoyance caused by overlooking or loss of outlook nor increased traffic. The proposal is effectively an internal conversion with the addition of a second storey and side rear extension. Such an extension could have been effected to the existing dwelling house without being in breach of the restrictions. The appearance of the building will be essentially unchanged. The "thin end of the wedge" argument is answered by each case being considered on its merits. Mr. Downham has concluded that there will be no adverse effect on the value of any other property arising from the proposed development. Finally, there are no outstanding objections to the application.
44. The person entitled to the benefit of the restrictions who is most affected by their proposed modification is Mr. Lincoln at the adjoining property 9 Bridgefoot Drive. In his letter of objection dated 12 December 2000 to the local planning authority against planning application reference P/OO/1334/FP Mr Lincoln stated that the proposed structure would be "overbearing, intrusive and an invasion of my privacy." The proposed increase in height of the building by 2.8 metres would "have a dramatic impact upon my dwelling, making one room very dark, the kitchen, dining and second bedroom would also suffer a noticeable loss of light." He was also concerned about the possible loss of a tree screen so as to accommodate a large car parking area and a reduction in the value of his property. These concerns were repeated in Mr. Lincoln's letter dated 2 December 2005 that was submitted in support of Mr. and Mrs. Bayer's objection.
45. The local planning authority acknowledged the potential impact of the proposals upon Mr. Lincoln's property by imposing conditions regarding the use of obscure glazing in the second floor elevation facing 9 Bridgefoot Drive and by prohibiting the insertion of any further windows or openings into the elevation without the authority's prior written consent. The applicants agreed to vary the appearance of that second floor elevation by using tiles rather than brick to make the new storey appear more like a roof. Mr. Downham has acknowledged the proximity of the enlarged car park area to Mr. Lincoln's property although he considered that any additional disturbance would be minimal.
46. The proposal entails an increase in height of the existing building of 2.8 metres or approximately 50 per cent. At its closest point the proposed three storey building on the application land will be only 4 metres from the single storey rear elevation of the adjoining property. Given this proximity there is likely to be temporary disturbance in the enjoyment of Mr. Lincoln's property due to the construction works.
47. For these reasons I do not accept that the proposed modification of the restrictions in the 1954 Conveyance will not injure Mr. Lincoln and I am not satisfied that ground (c) has been established. In reaching this conclusion I have considered the applicants' argument that they would be able to construct a similar enlargement of their existing property as a single dwelling house without being in breach of the restrictions. I have considered the point in the light of the comments of the President in Re Fairclough Homes Limited's Application (2004) (Lands Tribunal, LP/30/2001) where he said:

"29…How the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without breaching the restriction and comparing it with what the proposed modification is intended to permit…"

There was no evidence presented about whether planning permission for such a significantly enlarged single dwelling house was likely to have been granted. There was no suggestion that the applicants propose to make such a planning application. Mr. Downham's policy evidence suggested that although there was still demand for privately owned detached three and four bedroom dwelling houses, there was a greater demand for smaller residential units. I therefore find that the applicants' submissions on this point do not alter my conclusions on ground (c). Having found that this ground has not been established in respect to the adjoining property I do not think it necessary to consider the point in respect of the other persons who are entitled to the benefit of the restrictions.

Conclusions: section 84 (1)(aa)of the Act

48. Having concluded that neither ground 84 (1)(b) or (c) has been established in respect of the restrictions contained in the 1954 conveyance, I turn to the remaining ground of the application which is contained in section 84 (1)(aa) of the Act. The relevant provisions state:

"(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of land for public or private purposes or, as the case may be, would unless modified so impede such user….

(1A) subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either –

(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.

(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances."

The applicant has not submitted that by impeding the proposed user the restrictions are contrary to the public interest. I agree with the applicant that the appropriate way to consider the requirements of these provisions is to answer the series of questions first raised in Re Bass Limited's Application (1973) 26 P&CR 156 at 157:

Is the proposed user reasonable?

49. The proposed development has received detailed planning permission and is for the continued residential use of the property. The proposal is for an extension of an existing building rather than the development of a new one. I therefore find that the proposed user is a reasonable user of the land for private purposes.

Do the covenants impede that user?

50. The 1954 conveyance provides that not more than one house should be erected upon the application land and that any house erected should not be used for any purpose other than that of a private dwelling house. In their originating application the applicants reserved their position on the construction of these restrictions and, in particular, whether or not they can be invoked to prevent the proposed conversion of the application land into four self-contained flats. However, in their written submissions, the applicants concede that: "for the purposes of the present application, however, the Tribunal may assume that these restrictions apply to this case." I therefore find that the restrictions do impede the proposed user of the application land.

Does impeding the user secure practical benefits to the persons entitled to the benefit of the restrictions?

51. The applicants answered this question in the negative for the reasons I have outlined in paragraph 43 above. However, the expression "practical benefits" in section 84 (1A)(a) is to be given a broad interpretation and is not to be limited to financial factors (per Eveleigh LJ in Gilbert v Spoor [1983] Ch27 at page 32). In my opinion the following practical benefits are secured by impeding the proposed user: preventing a worsening of the overlooking of, and outlook from, 9 Bridgefoot Drive; preventing the increase in car parking spaces adjoining that property and the associated increase in traffic and disturbance; protecting the amenity and ambience of the properties entitled to the benefit of the restrictions and the preservation of a low density of household development; and preventing the creation of a precedent in favour of flat development and avoiding temporary disturbance and disruption during construction works. There is no evidence that the proposed development would adversely affect the value of the properties that have the benefit of the restrictions. Mr. and Mrs. Gibbs and Mr. Lincoln have asserted in correspondence that this will be the case but neither person objected to the application. The only evidence on the point is from Mr. Downham whose conclusions I have reported above.

Are the benefits of substantial value or advantage?

52. The practical benefits described above must be of substantial value or advantage to defeat an application under ground (aa). I have already found above that there is no evidence upon which to conclude that there are any benefits of substantial value. I place considerable weight upon the absence of any outstanding objections to the application for the discharge or modification of the restrictions in the 1954 conveyance. It is clear from the correspondence to which I have referred above that some of the persons entitled to the benefit of those restrictions, and especially Mr Lincoln in the adjoining property, were opposed to the application. But, and for whatever reason, they chose not to object. They had the opportunity to do so and had been formally notified of the application. I have therefore received no evidence about the substantiality of the practical benefits in terms of the advantage which is secured to such persons by the restrictions. The applicants have gone no further than to submit that the restrictions do not secure any (or, at most, nominal) practical benefits to the persons entitled to the benefit of them. A lack of any objections creates a presumption that the persons entitled to the benefit of the restrictions do not consider that they secure practical benefits of substantial value or advantage to them. In the absence of any evidence to the contrary I so conclude in this case with respect to all such persons.
53. Although it is not known why Mr Lincoln did not object to the application it is clear from the documents submitted with the application that there was a threat of litigation against him had he done so (see paragraph 17 above). Under these circumstances I might have found that his failure to object did not necessarily imply acceptance by him that any practical benefits secured by the restrictions in the 1954 conveyance were not of substantial advantage to him. However, and without commenting on such litigation which lies outside of my jurisdiction, I note that the applicant referred in the originating application to a document dated 6 April 2003 which was signed by Mr Lincoln. It states:

"I John Lincoln of Bridgefoot Drive, Fareham, Hampshire, hereby state that I withdraw my previous objection to the construction of 4 luxury apartments at the property known as Three Penny Bit, East Street, Fareham, Hampshire.

I now support this proposal in full."

This statement was made before the current application was made on 20 September 2004 and the objection referred to was not an objection to that application. Nevertheless this document appears to represent Mr Lincoln's views on the proposals contained in the application and remained his stated position until he wrote a letter in support of Mr and Mrs Bayer's objection on 2 December 2005. That being so I do not consider that the latest letter should rebut the presumption I have referred to above and that Mr Lincoln's failure to object, combined with his earlier statement of support for the proposals, is sufficient evidence to satisfy me that the practical benefits secured to him by the restrictions in the 1954 conveyance are not of substantial advantage to him.

Is money an adequate compensation?

54. Having found that the requirements of section 84(1A)(a) of the Act have been satisfied I now consider whether money will be an adequate compensation for the loss or disadvantage (if any) which any person will suffer from the proposed modification. I have described the practical benefits in this case in paragraph 51 above. In my opinion any loss or disadvantage that may arise upon the modification of the restrictions in the 1954 conveyance is capable of being compensated adequately by a monetary payment.
55. Section 84(1) of the Act provides that an order modifying a restriction may direct the applicant to pay any person entitled to the benefit of the restriction such sum by way of consideration as I may think it just to award to make up for such loss or disadvantage. In the absence of any objections or evidence and in all the circumstances of this case I do not consider that it would be just to make any such award.

Discretion

56. I have found that the requirements of section 84(1)(b) of the Act have been satisfied in respect of the modification of restrictions 1 and 3 of the 1971 conveyance and that the requirements of ground (aa) of that section have been satisfied in respect of restrictions 2 and 3 of the 1954 conveyance. This being so I must now consider whether it is appropriate for me to exercise my discretion under the jurisdiction that has been established. In reaching my determination I am obliged to take into account the factors listed in section 84(1B).
57. Mr Downham's planning evidence was summarised in paragraph 32 above. Whilst I generally accept Mr Downham's policy analysis I note that this refers to policy H6 which deals with Houses in Multiple Occupation rather than policy H5 which deals with Conversions to Flats. The proposal is for the creation of four self-contained apartments rather than the conversion of a single dwellinghouse into multiple occupation. However there are no material differences between these policies. Mr Downham has not, however, given any examples of similar conversions in Fareham, relying instead upon general comments about such conversions in Portsmouth and Southsea. I do not find such examples to be helpful or relevant in this case and they do not help in ascertaining a pattern for the grant of planning permission in the locality of the application land. Although Mr Downham refers in his first report to "instances, particularly on the south side of East Street, where properties have been converted to two separate flats" he gives no specific examples. However, the proposals satisfy policy H5 and detailed planning permission has been obtained. Having considered all the relevant factors I find no reason for refusing the relief sought as a matter of discretion.

Order

58. The applicants have not stated the modifications that they are willing to accept. Under section 84(1C) of the Act I have the power to add such further provisions restricting the user of the building on the land as appears to me reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicants. I may refuse to modify the restrictions without some such addition.
59. The following order will accordingly be made:

In the 1954 conveyance –

Restriction 2 is modified on ground (aa) by insertion of the following:

"Provided that a single storey rear/side and second floor extension to enable conversion to four self-contained apartments may be constructed in accordance with planning permission P/00/1334/FP issued on 26 June 2001, as amended under reference P/00/1334/MA/A on 27 June 2003, and the approved drawing numbers referred to therein."

Restriction 3 is modified on ground (aa) by insertion of the following:

"Provided that the four self-contained apartments constructed in accordance with planning permission P/00/1334/FP issued on 26 June 2001, as amended under reference P/00/1334/MA/A on 27 June 2003, may be used as such."

In the 1971 conveyance –

Restriction 1 is modified on ground (b) by insertion of the following:

"Provided that a single storey rear/side and second floor extension to enable conversion to four self-contained apartments may be constructed in accordance with planning permission P/00/1334/FP issued on 26 June 2001, as amended under reference P/00/1334/MA/A on 27 June 2003, and the approved drawing numbers referred to therein."

Restriction 2 is modified on ground (b) by insertion of the following:

"Provided that the four self-contained apartments constructed in accordance with planning permission P/00/1334/FP issued on 26 June 2001, as amended under reference P/00/1334/MA/A on 27 June 2003, may be used as such."

60. Reference to planning permission P/00/1334/FP (as amended on 23 June 2003) shall include any subsequent permission that is the renewal of that planning permission and any matters approved in satisfaction of the conditions attached to such permission.
61. An order modifying the restrictions in accordance with the above shall be made by the Tribunal provided, within one month from the date of this decision, the applicants shall have signified their acceptance of the proposed modifications.
62. There being no objectors to the application the issue of costs does not arise in this case and this decision shall take immediate effect.

Dated 8 June 2006

A J Trott FRICS