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LP/31/2006 |
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LANDS TRIBUNAL ACT 1949
RESTRICTIVE COVENANT -
modification
-
dwellinghouse
-
restrictions
preventing
erection of
more
than
one
dwellinghouse
or
bungalow
-
application
to
modify
to
permit
two
or
three dwellinghouses
-
whether
restrictions
obsolete
-
whether
proposed
user
reasonable
- whether
restrictions
secured
practical
benefits
of
substantial
value
or
advantage
-
whether
discharge would
cause
injury
-
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 ALAN HOWARD
FISHER |
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Re: Dayspring Shady Lane
Bromley Cross Bolton BL7 9AF |
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Before: N J Rose FRICS |
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Sitting at Preston Combined Court, The Sessions House,
Lancaster Road, Preston, PR1 2PD
on 28-30 May 2008 |
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Ian Foster, instructed by
Harrison Drury and Co, solicitors of Preston for the
applicant.
Michael Collard,
instructed by Colemans-ctts, solicitors of Kingston-upon-Thames for
Ian
Christopher Swift,
objector.
Andrew Clark, instructed
by DWF LLP, solicitors of Preston for Bridget Horner Nutter,
objector.
Nigel Dennis Tinker, objector, in
person. |
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© CROWN COPYRIGHT 2008
1 |
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The following cases are referred to in this
decision:
Re Fairclough Homes Ltd’s
Application LP/30/2001, unreported Shepherd v Turner [2006] 20 EG 294, CA |
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The following cases were referred to in argument:
Re Davis’ Application
(1950) 7 P & CR 1 Wakeham v Wood (1981) 43 P & CR 40,
CA Knight v Simmonds [1896] 2 Ch 294, CA Re Quaffer’s Ltd’s
Application (1988) 56 P & CR 142 Price v Bouch (1989) 58 P
&CR 257 |
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2 |
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DECISION
Introduction
1. This is an
application by Mr Alan Howard Fisher under section 84(1) of the Law of
Property Act 1925, seeking the modification of restrictive covenants
affecting freehold land containing a dwellinghouse, garden and swimming
pool and known as Dayspring, Shady Lane, Bromley Cross, Bolton, BL7 9AF so
as to permit the construction of one, two or three new dwellings
thereon.
2. The
applicant has, since 12 November 2001, been the registered proprietor of
the whole of the site of Dayspring. A principal part of that site (the
application site) was conveyed by deed dated 23 December 1953 (the 1953
conveyance) by The Personal Representatives of Algernon Seymour Hoare
deceased (the Vendors) to Annie Gill (the Purchaser). The conveyance
contained, among others, the following covenants by the
Purchaser:
“For the benefit of the Vendors
and their successors in title owners and occupiers of the land known as
‘The Turton Estate’ adjoining the property hereby conveyed and each part
of such land” ...
(2) Not to
erect build or maintain on the said property more than one dwellinghouse
nor to use the same for any other purpose than that of a private or
professional residence in one occupation and that nothing shall be done or
suffered thereon which shall be a nuisance or annoyance to the owners or
occupiers of adjacent hereditaments.
(3) Not to
rebuild alter or add to any building on the said property except in
accordance with plans previously approved in writing by the Vendors’
surveyor.”
The application seeks the
modification of these restrictions so as to permit one or more of the
following residential development proposals to be
implemented:
(a) The
retention of the existing dwelling and the construction of one additional
two-storey dwelling on the north-eastern part of the site, where a
swimming pool currently stands, pursuant to planning permission granted on
2 October 2003.
(b) The
demolition of the existing dwelling and the construction of two new
two-storey dwellings on the south-western part of the site, pursuant to
planning permission dated 15 April 2005.
(c) The
demolition of the existing dwelling and the construction of three new
dwellings pursuant to planning permission granted on appeal on 20 June
2005. The permitted houses would have two main storeys and an additional
floor lit by dormers at the front and rooflights to the rear.
3. It is to
be noted that, if proposal (b) were carried out following the
implementation of proposal (a), the effect would be almost the same as if
scheme (c) were undertaken. |
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4. There are
three objectors to the current application, each of whom owns a
dwellinghouse abutting the application site. They are Mr Nigel Dennis
Tinker of 7 Grangewood, Mr Ian Christopher Swift of 9 Grangewood and Mrs
Bridget Horner Nutter of Oak Lea, Shady Lane. It is agreed that all three
objectors are entitled to the benefit of the restrictions in the 1953
conveyance.
5. Mr Ian
Foster of counsel appeared on behalf of the applicant. He called two
expert witnesses, Mr Anthony Whitehead Dip TP, MRTPI, sole principal of
Whitehead and Company, town planning and development consultants of Wigan
and Mr Alan Bell Firth, MRICS, sole principal of Joseph Jackson &
Sons, general practice chartered surveyors of Bolton. Mr Michael Collard
of counsel appeared for Mr Swift. He called Mr Swift and one expert
witness, Mr Peter Richard Higham FRICS, senior partner of Higham & Co,
chartered surveyors and planning consultants of Manchester. Counsel for
Mrs Nutter, Mr Andrew Clark, called his client and, as expert witness, Mr
Keith Woodrup Skelhorn FRICS, MCIArb of Longden and Cook Commercial of
Salford. Mr Tinker appeared in person and gave evidence.
6. On the
morning of 30 May 2008, the third day of the hearing, I inspected in
company with counsel the application site, the objectors’ houses and the
surrounding area.
Facts
7. In the
light of the evidence and my inspection I find the following facts.
Bromley Cross is an attractive residential area about 2½ miles north of
Bolton town centre. It is hilly and on the edge of open countryside and
moorland. The east side is bounded by the steep valley of Bradshaw Brook
and the west side by the equally steep valley of Eagley Brook. The Jumbles
reservoir and country park is about quarter of a mile to the north,
approached by Shady Lane and Grange Road. The early development of Bromley
Cross, mainly a mixture of terraced and larger houses, was focused on
Shady Lane. There is now a small local centre about half a mile to the
north-west. A local railway line runs north/south through the area and
Bromley Cross station is centrally situated. There are some very large
individual pre- and post-war homes. Most of the housing in Bromley Cross,
however, has been developed over the last 40 years or so in the form of
private housing estates, generally of good quality, with the majority
comprising detached houses.
8. The
application site contains a bungalow, built in the mid 1950s and
subsequently extended. Walls are of brick, with some timber panelling at
the rear, and a mono pitched roof slopes forward towards the road. The
total site area (including parts of the site not included in the 1953
conveyance) is 0.24 hectare (0.59 acre). The plot is generally level,
although there is a pronounced fall south-eastwards across a woodland area
to the north (that is, down from Grange Road). The site also starts to
fall to the east, close to the boundary with 9 Grangewood. This fall in
levels continues beyond the eastern boundary of the application site.
There is a large swimming pool enclosed with a glazed, aluminium frame to
the north-east of the house, and a shed and a boiler house nearby. The
site has a main, western frontage of approximately 280 feet to Shady Lane
and Grange Road, both of which are unmade. The southern frontage of
approximately 138 feet is to a private driveway which serves two other
bungalows, Oak Lea |
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and Sunningdale and runs
south-east from Shady Lane. Immediately south of this driveway is a large
detached house known as Beechwood, currently used as a nursery school. On
the western side of Shady Lane, opposite the entrance to the driveway, are
three pairs of modern semi-detached houses. They lie immediately north of
a building currently use as offices, but otherwise the immediately
surrounding area is in residential use.
9. Nos.7 and
9 Grangewood form part of an estate developed in the 1970s on the Turton
Estate land and comprising attractive housing, built in medium density
along an undulating estate road, Grange Park Road, and incorporating
several small cul-de-sacs of which Grangewood is one. Both houses are
detached two storey dwellings, with gardens at the front and rear. They
are located at the western end of Grangewood, which runs west from Grange
Park Road. The head of the cul-de-sac is marked by a large grass island
containing three mature trees and there are additional mature trees in the
verge. The road has a pronounced fall eastwards, giving views across the
valley to the hills beyond. It contains 8 detached houses and 5 bungalows.
No.9 lies to the north-east of Dayspring, with which it shares a common
boundary of approximately 130 feet. No.7 lies immediately south-east of
No.9. Its rear, south-western boundary is approximately 55 feet long, of
which approximately 15 feet are shared with the eastern boundary of
Dayspring and 40 feet with the north-eastern boundary of Oak Lea. Nos. 7
and 9 Grangewood lie at a significantly lower level than Dayspring and Oak
Lea.
10. Oak Lea is an
attractive detached bungalow designed and constructed in the 1970s. The
design of the house is focused upon a landscaped front garden area which
is the main garden to the property. This garden is open plan and fronts
directly onto the north-east side of the private driveway. It is
overlooked by full length picture windows in the main rooms to the
bungalow. To the north-west, Oak Lea shares a common boundary of
approximately 100 feet with Dayspring. In addition to Dayspring and Oak
Lea, the private roadway serves a third detached house, situated at its
southern extremity and known as Sunningdale.
Grounds for the application
11. The application
is made under paragraphs (a), (aa) and (c) of section 84(1). I start with
ground (a), namely whether, by reason of changes in the character of the
property or the neighbourhood or other circumstances of the case which the
Tribunal may deem material, the restriction ought to be deemed obsolete.
It is agreed that the restriction is obsolete if its original purpose can
no longer be fulfilled.
12. For the
applicant Mr Foster submitted that the purpose of the restrictions was to
maintain the status or exclusivity of the neighbourhood by ensuring that
development was restricted to single detached properties on reasonably
large plots. He said that the character of the neighbourhood which
included the application site had changed radically. He referred to the
six semi-detached houses opposite Dayspring, constructed on what had been
agricultural land in 1953; the significant amount of residential
development on small plots along Shady Lane and Grange Road, very often in
the form of infilling, which had led to the intensification of the use of
Shady Lane, a no through road; the change of use of Beechwood from
residential to educational and the construction of many houses on the
Grange Park Estate. Taking all these |
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factors into account, said Mr
Forster, the plot size of the application site was now significantly
larger than that of the majority of the other residential properties in
the neighbourhood. The covenant had therefore failed to achieve its
objective of maintaining the status of the neighbourhood by ensuring the
retention of reasonably large plots. It was therefore obsolete to the
extent that it restricted the use of the application site to one
dwellinghouse.
13. Mr Clark
submitted that the purpose of the restrictions was to benefit the
remainder of the Turton Estate - an area of
approximately 25 acres adjoining the application site to the north, east
and south-east. The preamble to the restrictions in the 1953 conveyance
expressly stated this intention. He also relied on Mr Higham’s opinion
that the Estate land had been identified for residential development at an
early stage and with increasing certainty during the 1960s until the
formalisation of the residential allocation in the approved Turton Town
Map in 1968 and the subsequent grant of planning permission for that use
in the 1970s. Mr Higham considered that the only way the restrictions
could benefit the retained land was by protecting the future residential
development of that land, which was intended to extend up to, and abut,
the land to be sold. The adverse effect of any inappropriate development
on the retained land, and thus on the future housing, would be exacerbated
by the elevated nature of the three plots fronting the private driveway.
Mr Collard adopted Mr Clark’s submissions on this issue.
14. I accept Mr
Higham’s evidence on the purpose of the restrictions. I have not
overlooked the fact that a document entitled the Town Plan for Turton 1947
suggested that the Estate was suitable for industrial development. The
proposed industrial area, however, included the sites of the three houses
fronting the north side of the private driveway. As Mr Higham pointed out,
the sales for residential development of the application site in 1953 and
of the Oak Lea site in 1957 took place despite the suggestions made in the
1947 Town Plan. Moreover, if the owners of the Estate had considered that
their remaining landholding was likely to be used for industrial purposes,
it is difficult to imagine why they would have considered it necessary to
impose the restrictions which form the subject of this application. I
accept Mr Higham’s characterisation of the 1947 Town Plan as an informal
document, suggesting rather grandiose plans for the Turton area which were
never acted upon. I find that the purpose of the restrictions was to
protect the potential residential development of the Turton Estate. That
purpose is still capable of fulfilment and the restrictions are not
obsolete.
15. I should add
that there was disagreement between the experts as to the extent of the
neighbourhood which falls to be considered for the purposes of ground (a).
Mr Whitehead took the view that the neighbourhood consisted of the area
which was visually and physically linked to Dayspring. In his opinion this
included the western side of Shady Lane, Grange Road north-east from the
junction with Shady Lane as far as a house known as Langtry (a distance of
approximately 400 feet), Beechwood, Dayspring, Oak Lea, Sunningdale and
Nos. 7, 9 and 11 Grangewood. Mr Skelhorn, on the other hand, felt that the
relevant neighbourhood was much smaller, consisting only of Dayspring, Oak
Lea and Sunningdale, constructed on land which was at a higher level than
the surrounding properties. Whereas the character of Mr Skelhorn’s
neighbourhood has remained largely unchanged from that which existed or
was clearly envisaged in 1953, the density of residential development in
Mr Whitehead’s neighbourhood has increased significantly in the
intervening period. I consider it is unnecessary for me to determine which
of the two approaches is to be preferred. Irrespective of the extent of
the |
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neighbourhood which has to be
taken into account, the changes which have occurred have not, for the
reasons I have given, been such as to render the restrictions
obsolete.
16. I now turn to
ground (aa). The applicant submits, and Mrs Nutter accepts, that each of
the three development proposals would result in a reasonable use being
made of the land for private purposes. Mr Swift does not agree, relying
upon Mr Higham’s opinion that, whilst the erection of two houses on the
application site would be a reasonable use, the construction of three
units would not. Mr Higham was less than forthright in expressing this
opinion. He described the erection of three units on the site as “rather
tight”. I am in no doubt that such a development, for which planning
permission was granted on appeal, would represent a reasonable use of the
application site for private purposes. The applicant does not suggest that
the restrictions, in impeding any of his proposals, are contrary to the
public interest. The issue under (aa), therefore, is whether the
restrictions secure to the objectors any practical benefits of substantial
value or advantage.
17. Mr Firth has had
more than 40 years experience in valuing commercial and residential
property in Bolton and the surrounding districts. In his opinion the only
properties having the benefit of the restrictions that might possibly be
affected by the proposed modification were Sunningdale and the three
houses occupied by the objectors. Mr Firth said that he had considered in
detail the three alternative proposals and in particular the existing site
levels and the proposed floor levels of the new dwellings. He had had
regard to the siting, location of the dwellings, the number and size of
the window openings to be included in the proposed new dwellings and the
orientation of the new buildings in relation to existing dwellings. He had
also considered the distance between the proposed new dwellings and the
existing properties and the extent of existing and proposed screening
separating Dayspring from adjacent properties. Taking these matters into
account, it was Mr Firth’s opinion that completion of any of the three
proposed developments would not cause injury to or reduce the value of any
surrounding land including Oak Lea, Sunningdale and 7 and 9 Grangewood. On
the contrary, he thought that the redevelopment of the rather neglected
site at Dayspring would benefit and improve this location.
18. Mr Whitehead has
practised in the United Kingdom in the public and private sectors since
1979 and has regularly given expert evidence in respect of planning
related matters. In his written report he said that since the restrictions
were imposed the local area had been subject to an extensive range of
housing developments of a variety of type and scale. In particular the
extensive tracts of land west and east of Shady Lane and Grange Road had
now been fully developed as large housing areas. More locally, the
frontages of Shady Lane, Higher Shady Lane and Grange Road had been
similarly developed with individual infill developments of semi-detached
and detached houses. On Higher Shady Lane a former laundry building had
been demolished and a mix of terraced and detached houses constructed in
several phases, together with extension of the adopted
roadway.
19. Mr Whitehead
said that it was proposed to retain all existing trees and other natural
features within the site, especially along the Shady Lane and Grange Road
frontages where trees protected by preservation orders would be
safeguarded. The proposed new dwellings |
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would be laid out in line with
the specified privacy distances required by the local planning authority
in supplementary planning guidance and no adverse impact on the privacy of
neighbouring residents would result. The development would be similar to
many others in the local area and the resultant density of 15 dwellings
per hectare was well below the current recommended level of between 20 and
30 dwellings advocated by Government and Bolton Borough
Council.
20. In granting
planning permission for the developments now proposed, both officers and
members of the Council had agreed that the development would be of an
appropriate character for the local area. This had been supported by the
planning inspector on appeal who stated:
“Having regard to the diversity
of house types in the general area I do not consider that the proposed
houses would have a seriously damaging effect on the street scene and I do
not consider that rejection of the proposal because of its physical impact
would be justified”.
21. Mr Whitehead
concluded that redevelopment of the application site with three new houses
would be wholly appropriate. Whilst the local area clearly had been
substantially undeveloped and of a more rural nature in 1953 when the
covenant was imposed, the local character around Shady Lane and Grange
Road and in this part of Bromley Cross generally had changed considerably
since then as a result of many diverse residential developments. The
existing building was unique in design, but suffering from deterioration.
Its replacement with more traditional dwellings would constitute an
improvement. In Mr Whitehead’s opinion demolition of the building would
not be harmful to the character of the site or the local street scene. In
line with several developments on the east side of Shady Lane which had
already taken place the proposal would retain the pleasant wooded areas
along the site frontage, an important feature of the site. It would
protect the privacy of nearby residents by utilising a design and layout
which accommodated recommended privacy distances to all boundaries and to
adjacent dwellings. Whilst in 1953 the site had been on the fringe of the
open countryside, it was now surrounded by modern housing of various
styles and size and lay in the heart of the urban area. Mr Whitehead
pointed out that the restrictions did not impose any limitation on height.
There would therefore be nothing to prevent the replacement of the
existing building with one house of any of the designs now
proposed.
22. The site was
sufficiently large to accommodate the proposal. Development of the site
with three dwellings would represent an efficient use of land in a highly
sustainable location. It was the form of development advocated by both
central government and Bolton Borough Council and was typical of other
developments locally. The development now proposed would be wholly
appropriate for the local area and suitable for the site.
23. Mr Tinker said
that he and his family had moved to Grangewood specifically because of the
quiet, semi-rural appearance of the area, and in particular the high
degree of privacy afforded by his property. The proposed development of
several houses would remove much of that privacy because of the raised
elevation at Dayspring. When sitting out in his rear garden/patio area he
and his family would be looked down upon by the proposed properties,
losing much of their valued privacy. In addition, the orientation of those
properties would |
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mean that their occupants could
look down into the bedrooms of his two young daughters. The development
would cause him injury in terms of loss of valued privacy and potential
decrease in house value. Bolton Borough Council had placed an emergency
tree preservation order on seven trees on the Dayspring site. The local
amenity was slowly being eroded by the gradual loss of trees and
development of the site would dramatically change the semi-rural feel of
the area.
24. Mr Swift said
that the main feature of his property which had attracted him to it was
its tranquil and semi-rural location. The rear garden was fairly small. An
important factor in his decision to purchase the property was that the
garden was not overlooked and that he would have complete privacy in the
rear garden and the conservatory. Mr Swift was concerned that the
applicant might not comply with the condition in the planning permission
which required a landscaping scheme to be provided. Long term enforcement
of any landscaping scheme would be at the discretion of the local planning
authority and he would have no say in the matter. In any event the
landscaping which the planners had imposed did not apply to the boundary
between his property and the application site and would therefore have no
effect on protecting his privacy. Moreover, the close proximity of the
nearest of the proposed houses to the boundary would make landscaping
either impossible or liable to early removal.
25. The application
site contained a bungalow which could not be seen from his garden and was
only partly visible from the first floor of his house. The redevelopment
of the application site with any number of town houses would have a
detrimental impact on the aesthetics of the area. Because the application
site was some 3m higher than his own rear garden, the proposed development
would in effect cause his property to be overlooked by the equivalent of a
three-or four-storey property. He would also lose the benefit of the sun
in his rear garden and conservatory much earlier in the day. Moreover, his
rear garden became very wet after rainfall. This situation would become
worse if a development proceeded because it would require a considerable
amount of hardstanding. It was also likely that patios would be added to
the new properties. This would all add to the run-off of water into his
garden and reduce its amenity. Mr Swift was also concerned about increased
activity and noise emanating from the other side of his rear fence as well
as additional light pollution.
26. Mrs Nutter
married in 1951. In 1957 her husband purchased a building plot of 1,111 sq
yds in Bromley Cross and, in the mid 1970s, he designed and constructed a
single house known as Oak Lea on the plot. Mr and Mrs Nutter lived there
until his death in 2002 and Mrs Nutter continues to live
there.
27. Mrs Nutter said
that Oak Lea, together with the adjoining bungalows, Dayspring and
Sunningdale formed a quiet semi-rural enclave, on higher ground than the
surrounding area and enjoying unspoilt views and tranquility. These three
properties were all low level dwellings situated in a quiet country
environment. Many of the trees in the surrounding gardens, including those
in the garden of Dayspring, were protected by tree preservation orders.
Although her front garden adjoined the rear boundary of Dayspring, it had
never been overlooked by or had its view spoilt by that bungalow. Mrs
Nutter said that buildings of the height and number proposed would
overlook all her main windows and have a detrimental |
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effect on her privacy. They would
form an obtrusive block in full view of Oak Lea. The proposed development
and in particular its density would have a detrimental effect on the
character of the neighbourhood, adversely affecting the surroundings
currently enjoyed by her property, as well as the country environment in
which it was situated. The increased traffic from such development would
affect the tranquility of the neighbourhood.
28. The applicant’s
first planning permission authorised the construction of one additional
two-storey property. This would materially alter the nature of the
neighbourhood in which her property was situated and would have a
depressing effect on the value and amenities of Oak Lea. The planning
permission granted on appeal authorised the demolition of the existing
bungalow and the construction of three three-storey properties. Given the
height of these properties and the density of the development, this would
be totally out of keeping with the rural nature of the neighbourhood and
would spoil the view which she currently enjoyed. In addition, the rear of
the proposed development would overlook her main window, all three of her
bedrooms and the entire garden, thus depriving her of the privacy
previously enjoyed.
29. The remaining
planning permission envisaged the construction of two new two-storey
properties. The rear elevations of these buildings would overlook her
house and garden and be highly intrusive. Finally, in each case the
appearance of the proposed buildings would produce a uniformity of design
of two- or three-storey dwellings, which was out of keeping with and
detrimental to the character of the present neighbourhood, comprising
low-level and individual dwellings.
30. Mr Skelhorn has
practised as a chartered surveyor for over 40 years. His specialist field
is surveying and valuation and most of his work is in the north of
England. He considered that Dayspring, Oak Lea and Sunningdale were of a
quality of location and design which set them apart from the wider
area.
31. In Mr Skelhorn’s
opinion the height and massing of the proposed houses was out of character
with other developments in the area. Their bedrooms would overlook Oak
Lea. Each house would be a source of increased activity and noise. A
prospective purchaser would view the location of Oak Lea as being
different from the one that currently existed. This would deter some
potential purchasers. The resultant diminution in value would vary from
£22,500 if one additional home was permitted to £50,000 if three houses
(with effectively three storeys) were constructed. For Mrs Nutter, who had
been involved with the site since 1957 and the development of the property
in the 1970s, and had lived there ever since, the impact of a relaxation
of the covenant would be traumatic.
32. Mr Higham said
that his professional expertise was in relation to planning and
development, including valuation and compensation matters. He considered
the practical benefits of the covenants firstly in terms of the three
house proposal which received planning permission on appeal. The different
in levels between 9 Grangewood and Dayspring (and also Oak Lea and
Sunningdale) was equivalent to just over one storey in height. The
redevelopment of the application site with multiple dwellings would have a
significant adverse impact on 9 Grangewood. Any view to the rear of that
property would be dominated by the |
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proposals. The adverse effect
would be most severe in the ground floor rooms, but it would also extend
to the first floor rooms. Views of the sky would be entirely obstructed
from parts of the ground floor rooms and the rear garden, but the first
floor rooms would also be affected. The existing bungalow on the
application site, by contrast, had no impact upon those
views.
33. The overall
difference in height from the site level of 9 Grangewood to the ridge of
the proposed properties would be 12.08m. Allowing for eye level (standing)
this produced an angle of inclination from the horizontal of some 31% from
the conservatory of 9 Grangewood. This was an extremely high angle of
vision, which would clearly have a major impact upon the amenity of 9
Grangewood.
34. All of this was
to be compared with the uninterrupted view currently enjoyed from 9
Grangewood of the rear boundary fence, shrubbery and trees and sky beyond.
Mr Higham also referred to the photographs of 9 Grangewood taken from the
front of the property. He considered that the proposed development would
completely alter the setting of the house, from being entirely one of
shrubs and trees and devoid of any buildings, to being dominated by urban
development.
35. Mr Higham also
thought that 9 Grangewood would suffer from loss of privacy, especially in
relation to its two first floor bedrooms, which would be directly
overlooked by the ground, first and second floors of the nearest of the
three proposed houses, and to a lesser extent by the other two houses.
Normal domestic noise and general activity would also increase
substantially above that expected from one house. This would result from
an intensification of the use of the site and also because the generation
of new noise and activity would be transferred to immediately beyond the
common boundary with 9 Grangewood.
36. In Mr Higham’s
opinion the proposed development would reduce the amount of sunlight to 9
Grangewood, could lead to pressure to remove individual trees on the
application site and was likely to exacerbate the existing problem of
surface water running off the application site down the slope to Mr
Swift’s rear garden. He thought the one house proposal would have a
similar impact to the three house proposal, because the new dwelling would
be situated in a similar position to the nearest of the three
houses.
37. The two house
proposal would have the least impact of the three, as it would leave a
margin of land unbuilt upon and the two houses would broadly occupy what
could be the site of one redeveloped house at Dayspring. However, this
scheme would be somewhat dysfunctional if taken on its own, as it would
leave a large area to the north-east of the second plot which could only
be used as the garden to that plot. The house was, however, designed on
the basis that this land would be separately developed, both because of
the position of the footprint which left an equal size plot to the side,
and also because there was limited fenestration looking towards this land
– no first floor windows and only one small ground floor window. Clearly,
if only this scheme were to be permitted, there would be a natural desire
to resite the two plots, and redesign the two houses, probably involving
larger houses and windows on the north side. This would thus result in a
level of impact which was closer to that which he had described in
relation to the three house proposal. |
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Conclusions on ground (aa) |
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38. I would at the
outset make a general observation on the nature of Mr Whitehead’s approach
to this application. His written report contained no reference to the
provisions of section 84. His ultimate conclusion was that the proposed
development “would be wholly appropriate for the local area and suitable
for the site as the circumstances associated with its development are now
significantly different from those in 1953 when the covenant was imposed”.
In the course of cross-examination he said, and I accept, that his
conclusion that the applicant’s proposals would not diminish the
residential amenity of the area applied equally to those individuals who
had the benefit of the restrictions. Nevertheless, I accept Mr Clark’s
submission that Mr Whitehead’s evidence was largely directed to planning
issues and not to section 84 matters.
39. Planning factors
are not irrelevant to a consideration under paragraph (aa). Subsection
84(1B) requires the Tribunal to take into account among other matters the
development plan and any declared or ascertainable pattern for the grant
or refusal of planning permissions in the relevant areas in determining
whether paragraph (aa) applies. But in my view planning considerations
should not form the starting point for such an exercise. The starting
point should be an appraisal of the impact, upon those with the benefit of
the restrictions, of allowing a development proposal to proceed, bearing
in mind that it would otherwise be obstructed by the
covenants.
40. Before stating
my conclusions on the extent of that impact in the present case, it will
be convenient to deal with two preliminary matters. The first is the
quality of the existing bungalow on the application site. Mr Whitehead
suggested that it was ugly and had suffered from deterioration as a result
of its complex design and particularly its extensive flat roofs. Mr
Skelhorn, on the other hand, thought that the bungalow was capable of
beneficial use without any modernisation or adaptation. In the light of my
inspection I do not consider that the house can properly be described as
ugly, or even unattractive. Its design is somewhat dated and it suffers
from certain limited elements of disrepair, but I am not persuaded that
these are incapable of being remedied, nor that the form of construction
means that the building’s condition is bound to deteriorate further in the
foreseeable future. The bungalow is located on an attractive plot,
substantially screened by frontage woodland and vegetation. There is in my
view no reason to assume that the property, which is currently tenanted,
will not be maintained in a reasonable condition and prove attractive to
potential occupiers in the future.
41. The second
preliminary matter is the form of development which is likely to take
place on the application site if the current application is refused. Mr
Whitehead said that there would be nothing to prevent the demolition of
Dayspring and its replacement with a single house, of similar height to
those which were permitted on appeal, in the vicinity of the existing
swimming pool and close to 9 Grangewood. He suggested that the impact of
any of the current proposals upon 9 Grangewood would be no worse than such
an alternative.
42. I accept that it
would be possible for the applicant to demolish the existing bungalow and,
subject to planning permission, erect a tall house, or a tall outbuilding
to a house, close to |
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the back garden of 9 Grangewood.
The impact of such a building on Mr Swift’s amenities would not be very
different from the impact of the one additional house scheme, or the three
house scheme which are before me. Whether, in preventing those schemes,
the restrictions secure to Mr Swift practical benefits of substantial
value or advantage is likely to depend on the degree of probability that,
if the current application is refused, the existing bungalow will be
replaced by a tall structure close to 9 Grangewood (see the decision of
the President in Re Fairclough Homes Ltd’s Application, LP/30/2001,
unreported, approved by the Court of Appeal in Shepherd v Turner
[2006] 20 EG 294). In cross-examination Mr Whitehead accepted that
there was no proposal to demolish the existing bungalow and replace it
with a single dwelling, but he insisted that such a development was
“feasible”. Such a redevelopment scheme is certainly feasible, but there
was no evidence to suggest that it is in any way probable. Similar
considerations apply to the triangular piece of land within the Dayspring
title immediately to the north of Oak Lea. There is no covenant
restricting the number of dwellings that may be erected on this land.
There was no evidence, however, to suggest that this site might be
developed if the current application is refused.
43. In setting out
my conclusions on the impact of the applicant’s proposals I start with the
three house scheme. I find that the effects of that scheme would be as
follows:
1.
There would be a significant loss of privacy as a result of
overlooking caused to all three objectors.
2.
There would be a serious overbearing effect on 9 Grangewood and a
material overbearing effect on Oak Lea.
3.
There would be a serious adverse effect on the character of the
neighbourhood so far as Oak Lea is concerned.
4.
There would he a loss of sunlight to the rear garden of 9 Grangewood
and a risk that it would receive additional surface water run-off,
exacerbating the existing drainage problems.
44. The effects of the proposal to erect one
additional house would be as follows:
1. A
significant loss of privacy to 9 Grangewood and a limited such loss to 7
Grangewood.
2. A serious overbearing effect on
and a loss of sunlight to 9 Grangewood.
3. A risk of increased dampness to
the rear garden of 9 Grangewood.
45. The two house
proposal would lead to:
1. A
loss of privacy to Oak Lea.
2. An
adverse effect on the character of the neighbourhood of Oak
Lea. |
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3. A risk that it would be
followed by a further application for a form of development having a more
serious effect on the objectors’ properties.
46. In the case of
each of the applicant’s three proposals I consider that the power to
prevent the respective effects which I have outlined above is a practical
benefit of substantial advantage to the objectors. None of the evidence
about the development plan and the pattern of planning decisions in the
area suggests that a different conclusion should be reached. Ground (aa)
is therefore not made out. The fact that each proposal would cause such
injury to one or more of the objectors means that ground (c) also
fails.
47. Since the
applicant has failed to establish any of the grounds relied upon the
application must be refused. The parties are now invited to make
submissions on costs, and a letter dealing with that accompanies this
decision, which will become final when the question of costs has been
determined.
Dated 30 June 2008 |
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N J Rose FRICS |
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