England and Wales Lands Tribunal

 


Morgan v No Respondent [2006] EWLands LP_79_2004 (18 July 2006)

LP/79/2004

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT - modification – use of shop for sale of alcohol – whether restriction obsolete – change in character of neighbourhood – whether practical benefits secured – application refused – Law of Property Act 1925, s84(1)(a) (aa) and (c)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

by

DERRICK MORGAN

Re: Danni's Stores

85A Llansawel Crescent

Briton Ferry

Neath

Before: Mr A J Trott FRICS

Sitting at Swansea Civil Justice Centre

on 31 May 2006

Graham Walters instructed by G Huw Lewis, Solicitors of Neath, for the applicant

Milwyn Jarman QC instructed by the Head of Legal Services, Neath Port Talbot County Borough Council, for the objector

The following cases are referred to in this decision:

Re Kennett Properties' Application (1996) 72 P&CR 353

Re Quartleys' Application (1989) 58 P&CR 518

Ridley v Taylor [1965] 1 WLR 611

Re Truman, Hanbury, Buckston & Co Limited's Application [1956] 1 QB 261

Gilbert v Spoor [1983] Ch 27

Stannard v Issa [1987] AC 175, PC

Shephard and Others v Turner and Another [2006] 20 EG 294

The following cases were also cited:

Re Quaffers Ltd's Application (1988) 56 P&CR 142

Re Bradley Clare Estates Ltd's Application (1987) 55 P&CR 126

DECISION

Introduction

1. This is an application by Mr Derrick Morgan (the applicant) under section 84 of the Law of Property Act 1925 (the Act) for the discharge or modification of a restrictive covenant affecting freehold land comprising a shop and premises known as Danni's Stores, 85A Llansawel Crescent, Briton Ferry, Neath (the application land). If successful the application will allow the sale of intoxicating liquor for consumption off the premises.
2. The restriction in question is one of two imposed under a transfer of the application land dated 30 November 1992 between Neath Borough Council and Kenneth Griffiths. The restriction states:

"(2) Not to use or to permit or suffer to be used the premises or any part thereof as a public house or an off-licence wine merchant or beer shop or a licensed club or otherwise for the sale of wine malt liquors or other alcoholic drinks."

3. By an application dated 4 November 2004 the applicant seeks the discharge or modification of restriction 2. In doing so he relies upon grounds (a), (aa) and (c) of section 84(1) of the Act. In Schedule 3 to the application the applicant states that he does not seek to remove that part of restriction 2 which relates to use as a public house and that the application is for modification (or partial discharge) by deleting all the words that appear after the words "public house". This proposal would not enable the applicant to use the premises solely as an off-licence because of the wording of restriction 1 (which does not form part of the application):

"(1) Not to carry on or to permit or suffer to be carried on in or upon the premises or any part thereof any trade or business whatsoever other than that of a baker, confectioner, general provision merchant and ancillary trade including the sale of cooked meats and frozen foods."

The application land is currently used as a convenience store which falls within the description of a "general provision merchant" for the purposes of this restriction.

4. There is one objector to the application, Neath Port Talbot County Borough Council (the council). The objection was made on the grounds that the proposed user would have an adverse impact upon adjoining council owned premises and the local area generally as well as hindering the attempts of the council to rejuvenate the locality. The council is the original covenantee having assumed the rights of the former Neath Borough Council as a result of local government reorganisation. It retains ownership of adjoining properties and a number of adjacent dwellings. In its objection the council also relied upon an entitlement to enforce the covenant in accordance with section 609 of the Housing Act 1985 although at the hearing it stated that it was not pursuing this argument.
5. Mr Graham Walters of counsel appeared on behalf of the applicant. He called as an expert witness Graham Carlisle MRTPI of CDN Planning Limited, Pontardawe, Swansea.
6. Mr Milwyn Jarman QC appeared on behalf of the objector. He called seven witnesses of fact:

(a) Jan Lockyer, an Education Welfare Officer employed by the council.

(b) Liz Pearce, a Principal Officer in the council's Children and Young People Services Section.

(c) Colin Walters, a police sergeant in the South Wales Police currently stationed at Neath Police Station.

(d) Cheryl Benjamin, an Area Manager in the council's Housing Services Department.

(e) Esther Harris, a Senior Housing Officer employed by the council.

(f) Leigh Batchelor, the council's Communities First Coordinator for Briton Ferry West.

(g) Robert Rees, the council's Head of Housing Services.

A further witness on behalf of the objector, Joanna Ryan, an Anti-Social Behaviour Case Coordinator employed by the council, was unable to attend the hearing. Her written statement dated 7 October 2005 was submitted with the consent of the applicant.

7. I made two unaccompanied inspections of the application land, on the afternoon of 30 May and the morning of 1 June 2006. The shop was closed on both occasions. I viewed the shop externally and inspected the surrounding area.

Facts

8. The application land is located in Briton Ferry West at the western end of Llansawel Crescent close to its junction with Bryn Teg. Llansawel Crescent is a cul-de-sac with vehicular access from its junction with Shelone Terrace and Olive Branch Crescent. The majority of Briton Ferry west lies to the north of the A48(T) and to the west of a north-south railway line.
9. The surrounding area is predominantly residential with a mixture of semi-detached and terraced houses to the south and a more modern housing development to the west in Bryn Teg. Adjoining the application land to the east is 83A Llansawel Crescent which is a small newsagents shop trading as DMA News. To the north west of the application land is a terrace of three blocks of three storey council owned flats fronting onto Parc Newydd (formerly known as The Saltings), a road which forms an oval shape and rejoins Bryn Teg via Fairlawns. Eleven of these flats now provide assisted accommodation for vulnerable persons in housing need. The flats were previously semi-derelict and have been refurbished and re-tenanted. The flats that were formerly located to the north and east of The Saltings have been demolished. They, together with the application land and other council owned semi-detached houses, maisonettes flats and shops formed what was then known as the Fairlawns Estate which dated from the 1950s/1960s. There are now no buildings to the north of Parc Newydd which is an open grassed area. To the east the flats have been replaced by the Giants Grave and Briton Ferry Boys Club.
10. Adjoining the application land to the west is a three-storey block owned by the council and formerly occupied as flats but now known as The Community House. The bottom floor of this building is occupied by the charity NCH as a family centre. This provides support for young children and their families including counselling services. There is a playgroup for unaccompanied children aged two to three years and also a crèche. Part of the second floor is occupied by the council's Communities First Programme with the remainder of that floor, together with the whole of the third floor, being occupied by the council's Children and Young People Services Section as a Conference and Review Service.
11. Further to the west, between The Community House and the flats in Parc Newydd, is another three-storey former block of flats that is now occupied in part by the council's Estate Rangers Service. The Estate Rangers are employed to work with residents on the council's housing estates to help improve the quality of life and to reduce anti-social behaviour. The council also owns dwellings in Bryn Teg that have the benefit of the restriction.
12. The application land, which slopes down sharply towards the rear of the blocks of flats in Parc Newydd, has a single storey frontage onto Llansawel Crescent and a second storey at a lower level at the rear of the premises. There is a small off-street parking area to the front of the premises and steps to the left hand side leading to the lower storey. The shop on the application land is currently closed, ostensibly for refurbishment. Its normal opening hours are 08.30 to 22.00 on seven days a week. The applicant submitted a planning application in respect of the application land on 13 April 2006. The proposal is for the change of use of the ground floor to a flat.
13. The parties believe that the restriction that is the subject of the application was originally included in a lease dated 12 June 1961 between Neath Borough Council and the applicant's predecessor in title Mr Kenneth Griffiths. The lease merged with and was extinguished in the fee simple of the application land when this was sold to Mr Griffiths on 30 November 1992. Prior to the sale Mr Griffiths's solicitor wrote to the vendor asking it to reconsider the restriction relating to the use of the premises as an off-licence. In its reply dated 1 October 1992 the Solicitor and Assistant Director (Legal Services) of the council stated:

"... I am informed by the Director of Housing and Leisure that he has reservations as to the removal of the restriction of the premises as an off-licence.

His concern centres around the position of the shop and its proximity to Fairlawns, and the problems that may arise with the purchasing by youths of alcohol from a shop immediately adjacent to the site. Consequently it is felt that the restriction ought not be relaxed....."

14. The applicant became the registered owner of the application land on 9 July 1999 at which time it was apparently in residential use. On 22 October 2002 the applicant obtained planning permission for the

"change of use of domestic residence to convenience store and rear two storey extension".

15. On 27 May 2003 an application made by Caroline Morgan for the grant of a justices off-licence in respect of the application land was heard by Neath Magistrates Court. Both the Council and the police objected to the application. The council's opposition was based upon similar arguments to those it is pursuing in relation to its objection to the current application. The magistrate dismissed the application.
16. On 17 November 2003 the applicant wrote to the council's Cabinet Committee asking that the restriction on the use of the application land as an off-licence be removed. The request was refused, the reason for which is recorded in the Cabinet Committee's Minutes of 8 January 2004 as:

"It was considered inappropriate for alcohol to be sold from these premises due to its proximity to the children's centre, likely adverse impact on the reduction of anti social behaviour in the area, and that it would be contrary to the redevelopment of the area."

17. The application land is located within an area (Briton Ferry West) that forms part of the Communities First Programme. It is one of ten such areas in Neath Port Talbot. Communities First is a long term programme established by the Welsh Assembly Government which aims to improve the opportunities and quality of life of people living and working in the most disadvantaged communities in Wales.
18. No national or local planning policies restricting alcohol sales are relevant to the case and the application land is not within an alcohol free zone. However, an area of land south of Ynysymaerdy Road, including Jersey Park, to the east of Briton Ferry was so designated on 30 January 2003. This is approximately one kilometre from the application land.

The case for the applicants

Ground (a)

19. The applicant identified the purpose of restriction 2 from the letter dated 1 October 1992 from the Solicitor and Assistant Director (Legal Services) of the council (see paragraph 13 above). Mr Walters submitted that the contents of this letter meant that the restriction sought to prevent youths from Fairlawns from buying alcohol on the application land and/or to prevent unparticularised anti-social activities that might follow from such purchase. The restriction therefore served the purpose of preserving the amenity of the then council owned residential property in Fairlawns.
20. Since the restriction was imposed there had been a significant change in the character of the neighbourhood, by which was meant the area referred to as Fairlawns in the letter dated 1 October 1992. Mr Walters noted that there was not an agreed definition of what was meant by Fairlawns in this context. It might mean the road of that name or the wider area of the Fairlawns Estate. Mr Walters submitted an aerial photograph at the hearing that was taken in May 1988 and that showed the presence of a multi-storey block of flats located at the junction of Bryn Teg and Fairlawns. Those buildings had been demolished after the imposition of the restriction on the application land and the area had been redeveloped by new housing association houses and maisonettes. Prior to the redevelopment the blocks of flats had been boarded up and unoccupied and the area had been one of pronounced deprivation. The character of the neighbourhood had materially changed both physically and socially. It was no longer a council estate dominated by multi-storey flats. These had been replaced by new houses and there had been an increase in owner-occupation.
21. Mr Carlisle gave evidence about the changes in the character of the neighbourhood since 1992. He stated that planning permission had been granted on 24 April 2001 for the demolition of existing buildings and the construction of 50 dwellings on land adjoining Bryn Teg and Fairlawns. This redevelopment was said to have reduced the housing density and to have led to an increase in owner-occupation. Mr Carlisle analysed data supplied to his firm by the council which suggested that from April 1996 until September 2004 a total of 62 council owned properties had been purchased under the right to buy legislation. This related to that part of Briton Ferry West that lay to the north of Brynhyfryd Road and which Mr Carlisle considered to be the catchment area of Danni's Stores. He said that these figures were not corroborated by an analysis of the census data for 1991 and 2001. This showed that the number of council owned properties had reduced by 58 over that period whilst the number of owner-occupied properties had only increased from 56 to 59. Later in his evidence Mr Carlisle stated that in 1991 34% of residential properties in the area were owner occupied. By 2001 this had risen to 47%. Mr Carlisle concluded that this analysis showed that the area had changed in character from one of predominantly social landlord property to one of predominantly owner-occupation. This in turn pointed towards the changing character of the area and the levels of deprivation having reduced significantly. This improvement in the area indicated to Mr Carlisle that the original purpose of the restriction was no longer applicable.
22. In answer to questions in cross-examination Mr Carlisle explained that he had based his research upon an analysis of the returns from census enumeration districts in the vicinity of the application land. He was unable to reproduce this data for the 1991 census but had included as an appendix to his report the 2001 census results for the Briton Ferry West Ward. This showed a level of owner-occupation of 60.1% for the ward as a whole. However, the equivalent figure for 1991 was not given.
23. Mr Carlisle accepted that there had probably not been an influx of new residents resulting from the redevelopment of the Fairlawns Estate and that it was very likely that the people who lived there before lived there still. However, he considered that the original purpose of the restriction was no longer applicable because of the change in the character of the area and, as a consequence, there was a reduced potential for trouble due to the sale of alcohol from the application land. The whole area, including Llansawel Crescent, had been uplifted by the redevelopment of the Fairlawns Estate. Mr Carlisle said that he was unable to comment upon whether the improved visual amenity of the area had been matched by improved social amenity or whether there were continued problems of youth annoyance in the area.
24. Mr Carlisle stated that the objectors' witness statements had not changed the view expressed in his report that the council's belief that the grant of an off-licence would cause a public nuisance or threat to public order was unsupported conjecture on its part. Mr Walters, referring to the objector's evidence, submitted that the police did not consider Briton Ferry West to constitute a crime hot spot and that Briton Ferry East was more of a problem. He contended that youths intent on anti-social behaviour would target one area only to be moved on. That was why they had come to Llansawel Crescent; it had nothing to do with Danni's Stores.
25. Mr Walters submitted that the council's objection must be considered in the context of the purpose of the restriction. The council's first point of objection, that there would be an adverse impact on adjoining council owned premises due to the sale of liquor on the application land, had been limited by the council in its written objection to the impact of the application upon the use of The Community House. This building was now used as an office and was no longer in residential use. The purpose of the restriction was to protect residential amenity and an adverse impact (if any) upon offices used for social purposes was a concern that fell outside of the original covenant. That covenant had never been intended to help protect vulnerable families from the whole of Neath who were visiting the neighbouring property to receive counselling services. Those services were typical of those at other locations within the borough and were not specifically related to alcohol. Mr Walters contended that any problems of alcohol abuse would not be worsened by the persons affected attending The Community House given the ready access to alcohol in numerous other outlets which they would daily pass or visit.
26. The council's second point of objection, that there would be an adverse impact on the local area due to the sale of alcohol, was not supported by any specific policy relating to alcohol sales nor to any policy that was specific to this location. There were no land use or planning policies referred to or relied upon by the council. Nor had the council referred to its licensing statement under the Licensing Act 2003. That Act required the council to carry out its licensing functions with a view to promoting the licensing objectives, namely the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. But notwithstanding its statutory duty under that Act the council could not cite any policy that was relevant to the application land. Mr Walters submitted that the question to be answered was why the simple fact of alcohol sale as part of a general stores at this location should be restricted when it was not restricted in the general area and there was no policy that the council opposed alcohol sales generally. Nor were any concerns about the suitability of the applicant to hold a premises license for the sale of alcohol under the 2003 Act relevant to the current application. The council had failed to distinguish between the use of land and the misuse of it. Only the former is the proper subject for control by a restrictive covenant.
27. The third point of the council's objection was that the sale of alcohol from the application land would hinder the council's attempts to rejuvenate the locality due to a likely increase in crime and anti-social behaviour. Such rejuvenation was supported by general policies such as the Communities First Programme. But none of these policies contained anything specific about alcohol sales nor about the location of the application land. For the council to argue that alcohol sales would jeopardise rejuvenation initiatives overlooked the fact that they would already have been undermined by the existence of countless other outlets from which alcohol could be readily purchased. The council did not cite any other example where it made similar attempts to restrict the sale of alcohol. The council's case relied upon general statements regarding the cause of anti-social behaviour rather than upon specific examples. There was no evidence to support the council's view that the sale of alcohol would be prejudicial to the welfare of residents. The evidence given by the objector did not identify alcohol as being the cause of any significant existing problems. Under-age drinking had not been identified by the objector as a problem but in any event the covenant restricted lawful sales.
28. Mr Walters submitted that whether a narrow or a wide definition was taken of the area known as Fairlawns there had been a significant change in the character of the neighbourhood since the restriction was imposed in 1992. Indeed the council had deliberately tried to change the perception of the area by means of demolition and redevelopment. The council's witnesses talked of re-branding and re-badging the area, of removing street names that had negative connotations such as The Saltings. This amounted to a change in character that was of sufficient degree and type to render the restriction obsolete because its original purpose was no longer served and general social policies could not be relied upon to support a covenant that had a specific land use objective. The lawful use of the application land for off-sales would not impact negatively on the area.

Ground (aa)

29. Mr Walters submitted that the sale of alcohol from the application land was a reasonable user of the land that was not contrary to the public interest. He submitted that today general stores almost invariably have off-licence sales. This was not the case when the restriction was imposed but had become the norm over the intervening years and with the introduction of the new licensing regime under the Licensing Act 2003. The council had failed to recognise that this legislation effectively gave them much greater powers of regulation to target and control problem premises. The restriction prevented free competition by making Danni's Stores an exception in not being able to sell alcohol.
30. Mr Carlisle gave evidence of the number of convenience stores in the vicinity of the application land. He identified a total of 10 other stores all except one of which had an off-licence. The exception was DMA News, the property adjoining the application land at 83A Llansawel Crescent. That property had the same restrictive covenant imposed upon it as did the application land. Mr Carlisle suggested that the fact that all the other shops had an off-licence meant that it was financially imperative for them to do so. The current profit margins of Danni's Stores were tight and in Mr Carlisle's view this meant that without an off-licence it was possible that the store would have to close. Under cross-examination Mr Carlisle accepted that his examples were not limited to the vicinity of the application land but were spread throughout Neath. He did not accept that many of his examples, unlike the application land, were on busy main roads or in commercial areas. He considered that they were all in residential areas. He acknowledged that he had not investigated the financial viability of any of the 10 other shops.
31. In his evidence Mr Carlisle referred to a concession that the applicant was prepared to make by restricting the opening hours of the off-licence section of his shop until after The Community House was closed. The applicant had made a similar offer when applying to the council's Cabinet Committee in November 2003 to remove the restriction. In answer to a question from the Tribunal Mr Walters said that this concession was still on offer although he submitted that the control of opening hours was more appropriately dealt with through the Licensing Act 2003.
32. Mr Walters submitted that there were no practical benefits secured to the council by the restriction. He argued that any such benefit could only be one of two things. Either the council derived a clear benefit from restricting the lawful sale of alcohol from the application land or it was a reasonable and necessary conclusion that such lawful sales would generate unlawful sales and/or anti-social behaviour. The council was only concerned with the behaviour of youths and with unlawful underage drinking. There could be no practical benefit to the council in preventing the lawful sale of alcohol if it was only concerned with unlawful alcohol sales. That was a matter controlled by a variety of agencies, including the council. The council had suggested that the practical benefits that it enjoyed from the restriction were related to the amenity of the community. But none of the council's policies that targeted social problems had any reference to a restriction on alcohol sales. Since there were no practical benefits secured to the council by the restriction there could be no loss or disadvantage suffered by it for which compensation would be payable.
33. With regard to the matters that the Tribunal should take into account for the purposes of section 84(1B) of the Act, Mr Walters submitted that there was no relevant policy in the development plan that supported the restriction. Mr Carlisle stated that the relevant development plan was the deposit draft Neath Port Talbot Unitary Development Plan published in January 2003. The application land was shown in that plan as lying within an area of blanket policy allocations H3 and EC3. The former allowed infill and windfall housing development within established residential areas whilst the latter allowed the creation or expansion of business, industrial, storage or office premises provided they would not create unacceptable impacts. The map accompanying the development plan showed an area of land fronting Fairlawns and Bryn Teg as being specifically allocated for residential development as proposal H1/12. This site appears to correspond to that which Mr Carlisle identified as having received planning permission for 50 dwellings in April 2004. The proposed use as an off-licence did not require planning permission for a change of use.
34. Mr Walters submitted that the only declared or ascertainable pattern for the grant or refusal of planning permission in the area related to the residential redevelopment that had taken place in the neighbourhood since the imposition of the restriction in 1992. He also reiterated his submissions under ground (a) in respect of the period at which and the context in which the restriction was created and how that had changed significantly since that time. Mr Walters identified two material circumstances for the purposes of section 84(1B) of the Act. Firstly, he identified as a change in social policy the expectation today that a general stores would have a licence for off-sales of alcohol. Secondly, he referred to the change in licensing laws since the creation of the restriction and how the Council, as licensing authority, now had specific powers to regulate and control the sale of alcohol. Mr Walters considered it to be highly material that the Council had made no reference to its licensing statement in support of its three grounds of objection.

Ground (c)

35. Mr Walters submitted that there was a significant overlap between the other two grounds and ground (c). Allowing the sale of alcohol from the application land would not injure the council as it did not promote any general policy restricting alcohol sales. The council's general social policies have wider application than just the neighbourhood of the application land and the presence of off-licences elsewhere was not shown by the objector to have had an adverse impact upon such policies. He argued that there was no causative link between allowing the lawful sale of alcohol from the application land and the anti-social problems that, the council asserted, might arise from the misuse of the alcohol sales. It was unreasonable for the council to allege injury and to object to a lawful use of the application land on the grounds of an asserted misuse of the product (alcohol) to be lawfully sold.

The case for the objector

36. Mr Jarman submitted that the evidence of fact produced by the objector was not controversial and was largely unchallenged. That evidence came from eight witnesses. All the witnesses gave evidence that the sale of alcohol from the application land would be detrimental to the amenities of the area and to the use of the adjoining council-owned buildings. It would attract miscreant youths, lead to an increase in anti-social behaviour and set back the council's and the community's efforts to improve and rejuvenate the area. I summarise the particular concerns of the witnesses below.
37. Jan Lockyer gave evidence about the attraction of Danni's Stores to youngsters during the day and in the evening. Pupils have often been collected from the stores and returned to school. She had collected more than 10 pupils there herself over an 18 months period. She stated that it would appear that there were a number of parents living in the area of the application land who suffered with alcohol and drug related problems. She knew of more than 20 such families in the area. Ms Lockyer did not know where these families presently went to obtain alcohol but she considered that the sale of alcohol from Danni's Stores would have a direct impact on poor school attendance and the welfare of the children concerned. She stated that children with poor school attendance take part in anti-social behaviour.
38. Liz Pearce said that a large proportion of parents and families attending multi-agency conferences at The Community House do so as a consequence of alcohol and/or substance abuse that impacts upon their parenting capacity. Under cross-examination she was unable to give an estimate of what percentage of such persons had alcohol related problems. She felt that to sell alcohol from the adjoining application land could be detrimental to such parents who are often distressed and vulnerable following challenging conferences. Parenting groups run by the NCH Family Centre were attended by a number of young mothers who were also striving to overcome problems of alcohol and/or substance abuse. They too might be undermined in their rehabilitation efforts if Danni's Stores were to sell alcohol. An operation by Trading Standards officials and South West Police in Port Talbot in August 2005 had revealed that 10% of shops had sold alcohol to under 18s. She also said that Danni's Stores was a venue where youths regularly congregate and that there was a realistic prospect of over 18s purchasing alcohol on behalf of under 18s. Staff and service users of The Community House had reported feeling intimidated by such groups and empty cans of alcohol had been found outside those premises. The Learning and Disabilities Section of the council has a number of placements in flats in the vicinity of the application land. Such people are vulnerable to exploitation and abuse and she feared this might occur if alcohol were to be made available to youths in Danni's Stores.
39. For the last three years Police Sergeant Colin Walters' duties have included supervising community beat officers in the Briton Ferry area. Sergeant Walters stated that the Llansawel Crescent area, and particularly outside Danni's Stores, was a meeting place for local youths and that the police were often called to attend incidents of anti-social behaviour. Selling alcohol from the stores would act as a strong magnet for such youths. He commented that Danni's Stores had been closed recently for a few weeks and that the problems associated with youths congregating there had reduced significantly. Sergeant Walters considered that the recent problem of anti-social behaviour outside Danni's Stores had been caused by the displacement of its perpetrators from another location at Chasers Convenience Store in Brynhyfryd Road. That shop had an off-licence. Sergeant Walters stated that there were still problems in the Llansawel Crescent area but that they had reduced significantly since three years ago. There were two off-licences in Briton Ferry the nearest of which was five minutes walk from the application land. Sergeant Walters accepted that Briton Ferry East had a higher incidence of anti-social behaviour and crime than Briton Ferry West.
40. Cheryl Benjamin gave evidence about the use of The Community House. She corroborated Sergeant Walters' evidence that a gang of up to 40 youths had been displaced from its traditional gathering place and had recently been active in the Llansawel Crescent area in general and outside Danni's Stores in particular. She also described the history of the term Fairlawns. She stated that the flats in The Saltings had been demolished at the time she started her employment with the council in 1990. There was a stigma attached to the name The Saltings and there had been an attempt by the council to re-brand the area for housing purposes and to relaunch it with the name Fairlawns. The flats in the road of that name were demolished in 2000/01 and redeveloped in conjunction with a social housing provider, Tai Dewi Sant Housing Association, with a mixed development of one and two bedroom flats, two and three bedroom houses and bungalows for the disabled. Priority was given when allocating the new housing to existing residents so as to create a sustainable community. Consequently the make up of the residents was very similar to what it had been previously. Ms Benjamin confirmed that the council had retained ownership of properties in Bryn Teg and also the blocks of flats in Parc Newydd as well as The Community House. Under cross-examination Ms Benjamin stated that the reference to the term Fairlawns does not appear in any document except in her statement and the council's letter of 1 October 1992. It is the name used on the council's computer system to describe a letting area. She said that the area had previously also been known as Giants Grave but local people have never given up the name The Saltings. Ms Benjamin said that perhaps 12 to 20 residents had complained about anti-social behaviour in the vicinity of Danni's Stores. She acknowledged that she had not spoken to Mr Morgan about the problem because she had not considered it appropriate and thought that a meaningful response would be unlikely.
41. Esther Harris gave evidence about the results of a door to door survey of residents in Llansawel Crescent (16 respondents) and Bryn Teg (4 respondents) that was undertaken by the council's Estate Ranger Service on 9 March 2005. The survey contained six questions about anti-social behaviour. 16 respondents indicated that the increased availability of alcohol in the area would increase the problem of anti-social behaviour. The remaining four respondents said that it would not lead to more problems. Nine of the respondents said that youth annoyance around Danni's Stores, DMA News and The Community House was a problem. She stated that the Estate Rangers had witnessed large groups of youths outside Danni's Stores and that they had been encouraged to linger there by the owner. She had seen such gangs there herself. Ms Harris feared that the shop would not promote responsible consumption of alcohol. Under cross-examination Ms Harris said that the survey was one of five or six that had been conducted in this and other areas. It had been targeted at the parts of Llansawel Crescent and Bryn Teg where the problem of anti-social behaviour was concentrated. She accepted that none of the respondents had stated that alcohol was involved in any of the reported incidents of anti-social behaviour. Ms Harris could not recall why the question regarding alcohol had been included and accepted that it was not relevant to non-alcohol problems. She said that Danni's Stores might not promote responsible consumption of alcohol because of the risk of it being bought by proxy by older youths for underage drinkers but she accepted the figure given earlier in evidence by Liz Pearce that 90% of local retailers selling alcohol had acted lawfully.
42. Leigh Batchelor gave evidence that youths presently congregate around Danni's Stores and under the walkway of The Community House drinking alcohol and smoking drugs. He felt that if Danni's Stores sold alcohol then problems of youths annoyance would increase. He referred to extracts from the "Briton Ferry West Youth Works Feasibility Study" produced by Crime Concern Cymru in April 2004. This report revealed that Briton Ferry West Ward was one of the most deprived wards in the County Borough and is designated as a Communities First Area. At interview respondents from Briton Ferry West perceived the main problems in their community as being burglary, drug or alcohol related crime, criminal damage and drunkenness. Key community concerns included alcohol abuse and parenting styles which resulted in children being left to occupy themselves in sometimes unsafe and illicit activities. The type of anti-social behaviour observed included young people congregating close to shops and an off-licence, egg and stone throwing, vandalism, graffiti and drinking on the streets. Under cross-examination Mr Batchelor said that he had not spoken to licence holders about alcohol related problems identified in the area because he considered that to be the job of the police. He had spoken to the police and requested them to talk to the licence holders about the need for the responsible sale of alcohol.
43. Robert Rees gave evidence about the history of the redevelopment of the area around Llansawel Crescent and described how the image of the area had been completely transformed. Given the investment that the council had made in the area and the current uses made of the adjacent buildings, including the provision of services to very vulnerable groups, he was concerned about the sale of alcohol on the application land undermining all the council's work and leading to increased problems of anti-social behaviour and youth annoyance. He felt that the restriction most definitely still had an important purpose to serve. Mr Rees explained that historically the names of Giants Grave and The Saltings created a poor image in the eyes of both existing residents and applicants for housing. The demolition of the old blocks of flats had been part of a deliberate campaign to re-badge the area under the Fairlawns name. That was now the name of the letting area and included Bryn Teg, Parc Newydd and Llansawel Crescent. Under cross-examination Mr Rees stated the re-badging of the area started some four to six years before 1992. The restriction that the applicants sought to modify had previously been in standard use at the time when the council had built large housing estates.
44. Joanna Ryan submitted a written statement in which she identified 28 incidents of anti-social behaviour having been recorded in Llansawel Crescent between January and July 2005, or 20% of the calls across the Briton Ferry West area as a whole. She also stated that four youths from the Briton Ferry area had been invited to sign Acceptable Behaviour Contracts in 2003, one of the conditions of which was that they agreed not to congregate on Llansawel Crescent or to drink alcohol.
45. Mr Jarman submitted that there would have been no difficulty about defining what was meant by the neighbourhood of the application land had it not been for the specific reference to Fairlawns made in the council's letter of 1 October 1992. But it was important to consider the intentions of the council in the context of the factual matrix as it existed in 1992 and not just by reference to a single letter. Mr Rees and Ms Benjamin had given evidence that by the time the restriction was created in 1992 the blocks of flats in The Saltings had been demolished and the council had begun to regenerate the area. The problem area had been given different names at different times but to suppose, as the applicant had, that it related only to the demolished block of flats in the road known as Fairlawns was plainly wrong. It was inconceivable that the council should have had regard to those flats when imposing the restriction but not to the blocks which were nearer to, and in one case adjoining, the application land.
46. Mr Jarman said that it was clear that the restriction was not imposed to protect the commercial interests of the council. The purpose was to protect social amenity. This purpose was divided between the narrow protection of the council's retained property portfolio and the wider issue of the social amenity of the area generally. The purpose of the restriction was not to protect the narrow view of amenity but not the wider one. There was no evidence to support such an interpretation. Both aspects of amenity were proper purposes for a local housing authority to have regard to.
47. The applicant had argued that the change in the character of the neighbourhood had been so great that the restriction was now obsolete. But the restriction was imposed only some 13 years ago and the context had not greatly changed since then. The changes in the surrounding area were to the tenure and type of residential accommodation but the area remained predominantly residential and occupied by groups of a similar social background to those who lived there previously. It was accepted that the council owned less property that they had done previously but its ownership remained significant and the changes to the neighbourhood were not such as to have rendered the restriction obsolete.
48. Mr Jarman submitted that the change in the use of the council's adjoining property from flats to offices did not necessarily mean that the restriction was now obsolete. This was not a case such as that in Re Kennett Properties' Application (1996) 72 P&CR 353 at 358 where changing circumstances had given a restriction a value that it did not originally have. Instead he relied upon the wider social amenity that he submitted was a proper purpose of the restriction and that he argued should not be excluded by the applicant's unduly narrow interpretation.
49. Nor was it sufficient for the applicant to suggest reliance upon other legislation such as the Licensing Act 2003 to protect the council's interests. The question for the Tribunal was whether the application fell within any of the grounds relied upon under the Act.
50. Mr Jarman submitted that the amount of utility gained by the council from the restriction only needed to be slight for the purposes of grounds (a) and (aa). Furthermore where the benefit of the restriction was held by a public body for public purposes money was rarely adequate compensation, see Re Quartleys' Application (1989) 58 P&CR 518 at 525. The continued provision of public housing (albeit of a lesser amount than at the time the restriction was created) where the council retained some control over the sale of alcohol in circumstances where anti-social behaviour might thereby be diminished was a practical benefit of substantial value or advantage to the public. The evidence of the objector had clearly identified these practical benefits including some, such as the prevention of the sale of alcohol next door to a building housing the council's Children and Young People Services Section, which although not a benefit originally envisaged was still likely to come within the ambit of section 84(1A) of the Act.
51. Mr Jarman stated that if the application failed under ground (aa) then it must also fail under ground (c). Even if the council's owner-occupied offices were not to be taken into account there would still be injury to the council owned residential property. Mr Jarman submitted that ground (c) was essentially a long stop measure designed to discourage vexatious or frivolous objections, as per Russell LJ in Ridley v Taylor [1965] 1 WLR 611 at 622, and that was not true of the council's objection as was clear from the evidence.

Conclusion – Ground (a)

52. The test of obsoleteness under ground (a) is whether the original object of the restriction can still be achieved (see Re Truman Hanbury, Buckston & Co Limited's Application [1956] 1 QB 261 per Romer LJ at 272). In the present case the purpose of the restriction is said by the applicant to be set out in the council's letter dated 1 October 1992 (see paragraph 13 above). That letter expressed the concerns of the Council's Director of Housing and Leisure about the position of the shop and its proximity to Fairlawns and the problems that might arise with the purchase by youths of alcohol from a shop immediately adjacent to the site. In fact the letter gives the council's reasons for not removing the restriction which, the parties believe, was originally included in a lease dated 12 June 1961. The reasons for keeping the restriction upon merging the leasehold and freehold titles may not be the same as those for which it was originally created. I have received no evidence about the council's original intention in 1961 except for the comments during cross-examination of Mr Rees, who has 32 years experience with the council, that the restriction was in standard form and commonly used at the time when the council were building large housing estates.
53. Nevertheless I attach considerable weight to the letter from the council dated 1 October 1992 as being the only contemporary evidence of the covenantee's intentions at the time the restriction was imposed upon the sale of the freehold interest. I do not consider that the restriction had the object of protecting the commercial interests of the council. No evidence was produced that it did. I conclude that the purpose of the restriction was to protect the residential amenity of the council's housing in the neighbourhood of the application land.
54. The applicant argued that the neighbourhood in this context meant the site referred to as Fairlawns in the council's letter of 1 October 1992. He understood this to mean the blocks of flats located in the street of that name and which were demolished circa 2000/01 to be replaced by a modern development of houses, flats and bungalows undertaken in conjunction with Tai Dewi Sant Housing Association. I consider that this definition of the neighbourhood is too narrow for the purposes of section 84(1)(a) of the Act. Although no documentary evidence was produced of a wider interpretation of the area known as Fairlawns I have placed reliance upon the witness statements of Cheryl Benjamin and Robert Rees, as elaborated on during cross-examination, who were both employed by the council in 1992 and who described in some detail the history of the area and the deliberate attempt by the council to re-brand the neighbourhood as Fairlawns during the late 1980s. Ms Benjamin said that the expression Fairlawns was used on the council's computer programme to denote the local letting area whilst Mr Rees described the expression as being the generic term for the area that was the subject of regeneration. This undoubtedly includes the property identified by the applicant but, in my opinion, extends beyond it to include Bryn Teg, Woodlands Close, and Parc Newydd (formerly The Saltings). It also includes The Community House.
55. I accept that the physical character of the neighbourhood has changed in recent years. Apart from the redevelopment described above the blocks of flats that previously stood to the north and east of The Saltings have been demolished without replacement. The Community House, which was previously a residential block of flats, is now used as offices. But the neighbourhood remains predominantly residential despite the change in the number and type of residential properties.
56. Mr Carlisle sought to show that there had been a significant increase in owner-occupation in the neighbourhood and that this change in tenure from property tenanted from social landlords pointed towards significantly reduced levels of deprivation. I did not find Mr Carlisle's analysis and quantification of the levels of owner-occupation to be helpful. He queried the accuracy of information provided by the council for the period 1996 to 2004 by comparing it with census data for 1991 to 2001 for a different (much smaller) area. He did not compare like with like. Nor was he able to provide details of which enumeration districts he had included in his analysis and without this information it is impossible to verify his conclusions. There were also inconsistencies in his figures for the number of owner-occupied properties in 2001. However I do accept the general, if not the specific, conclusion of the applicant that levels of owner-occupation in the area have increased. Even so the percentage of owner-occupied properties in 2001 in Briton Ferry West as a whole at 60.1% is considerably less than the equivalent figure for the whole of Neath Port Talbot at 71.3%. Mr Carlisle's assertion that there is a correlation between the levels of owner-occupation and those of deprivation in the area (the implication being that anti-social behaviour would be reduced as a result) was not supported by his evidence.
57. I do not consider that it was any part of the original purpose of the restriction to protect the present use of The Community House. This building is a part of the neighbourhood that has changed significantly from its former residential use. It is now used as offices and for counselling services by the council and for the charitable purposes of NCH. There is no longer any residential use made of this property and insofar as The Community House now benefits from the restriction this is incidental to its original purpose.
58. However with regard to the remainder of the neighbourhood I find that the original purpose and object of the restriction remains capable of fulfilment. The Council retain residential properties that have the benefit of the covenant and the character of the neighbourhood has not changed from its predominantly residential use. Changes in patterns of tenure and the redevelopment of the blocks of flats have not negated the ability of the restriction to protect the amenity of the residents. I therefore find that the restriction is not obsolete and I refuse the application for its modification under ground (a).

Conclusion – Ground (aa)

59. The questions that arise for determination under section 84(1)(aa) of the Act are whether the restriction impedes some reasonable user of the land; if so, whether in so doing it secures to the objector any practical benefits; if so, whether those practical benefits are of substantial value or advantage to it; and, if not, whether money would be an adequate compensation for any loss or disadvantage suffered; whether, if ground (aa) has been made out, I should exercise my discretion in favour of modification; and, if so, how much if anything I should award as compensation.
60. On the first question I find that the proposed sale of alcohol from the application land is a reasonable user of the land that is impeded by the restriction. It is common for a general store to have an off-licence and the use requires no planning permission in this instance.
61. The expression "practical benefits" in section 84(1A)(a) of the Act is to be construed widely and is not limited to a restriction for the benefit or protection of land (per Eveleigh LJ in Gilbert v Spoor [1983] Ch 27 at p32). In my opinion the protection of residential amenity by discouraging the congregation of youths is a practical benefit to the council that is secured by the observance of the restriction. The problems that may arise from the sale of alcohol from the application land are not limited, in my view, to the direct anti-social consequences of drunkenness and underage drinking, but may also include the associated behaviours of groups of youths who are attracted to premises with an off-licence such as rowdiness, vandalism, graffiti and intimidation. The objector's witnesses have reported such anti-social behaviour both near to and outside Danni's Stores in the past and Sergeant Walters stated that these problems reduced following the recent closure of the shop. To an extent, therefore, such anti-social behaviour already exists and its avoidance is thus not secured by the restriction. However I am satisfied from the evidence that the sale of alcohol from the application land would exacerbate this behaviour. The gangs of youths reported in the Briton Ferry West area are peripatetic and premises with an off-licence (such as nearby Chasers) have been shown to act as a magnet to them.
62. The council has also argued, and I agree, that the restriction secures the practical benefit of avoiding the sale of alcohol from the property adjoining The Community House, many of whose visitors suffer from drink related problems. I have already found that this was not part of the original purpose of the restriction. Consequently such a practical benefit is incidental to that purpose. However, as Lord Oliver said of ground (aa) in Stannard v Issa [1987] AC 175, PC at p188:

"The question is not 'what was the original intention of the restriction and is it still being achieved?' but 'does the restriction achieve some practical benefit and if so is it a benefit of sufficient weight'...."

More recently in Shephard and Others v Turner and Another [2006] 20 EG 294 at p300 Carnwath LJ said of benefits which arise coincidentally from compliance with a restriction:

"That does not mean that such a benefit is irrelevant. It does however mean that it is a factor which the Tribunal is entitled to give less weight in the overall judgment of substantiality."

63. Mr Walters submitted that the council can derive no practical benefit from impeding a lawful user through a restriction that does not serve any general policy preventing the sale of alcohol and where that user is commonly found in general stores. I accept that the council have no general policy against the lawful sale of alcohol but I do not consider that to be significant when considering the overall policy background against which this application has been made. The council has a long-term policy of regenerating this neighbourhood and is committed to the Communities First Programme which is specifically designed to make lasting improvements in the lives of people living in the poorest areas of Wales, of which Briton Ferry West is one. I have had regard to these long term policies in determining under section 84(1B) of the Act whether this is a case falling within subsection 84(1A). Mr Walters also submitted that the availability to the council of the control of alcohol sales under the Licensing Act 2003 is a material circumstance to which I should have regard. But this application falls to be determined in accordance with the terms of the Act and not other legislation. Insofar as the powers of the council under the 2003 Act are relevant as a material circumstance I note that the applicant apparently does not have, nor has he applied for, a premises or a personal licence under that legislation. An application for a magistrate's off-licence in 2003 under previous legislation was refused. In any event the practical benefits that I have described above are not solely related to what Mr Walters referred to as the misuse of lawful alcohol sales. It is the availability, not the misuse, of alcohol that may undermine the work of The Community House and that attracts the youths whose behaviour has been shown in the past to be anti-social (although the former may be alleviated by a restriction on the hours of sale of alcohol).
64. Having determined that the restriction does secure practical benefits to the council there are two further criteria to be considered under ground (aa). Firstly, for the application to succeed, those practical benefits must not be of substantial value or advantage to the council and secondly, if they are not, that money would be an adequate compensation for any loss or disadvantage suffered by the council. In my opinion the application fails on both criteria. From the evidence before me and from my two site inspections I find that the practical benefits that I have identified are of substantial advantage to the council in its attempt to consolidate the improvements that have already been made to the physical and social fabric of the neighbourhood. In reaching this conclusion I have considered the totality of those practical benefits including those related to the use of The Community House to which, in isolation, I attach less weight for the reasons stated above. Had I decided otherwise the application would still have failed under ground (aa) because the practical benefits do not have monetary value to the council. They relate to the protection of the residential amenity of the area and to the efficacy of the counselling services provided in The Community House and are matters of social welfare rather than pecuniary loss. Mr Jarman submitted that these were not benefits that were compensatable by money and this was not challenged by the applicant. I therefore refuse the application under ground (aa).

Conclusion: Ground (c)

65. Having found that the restriction secures to the Council practical benefits of substantial advantage it follows that the Council would be injured by the proposed modification. The application is therefore refused under this ground also.
66. 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 18 July 2006

A J Trott FRICS