BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Lands Tribunal

You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> O'Brien & Anor v [2008] EWLands LP_8_2005 (22 February 2008)
URL: http://www.bailii.org/ew/cases/EWLands/2008/LP_8_2005.html
Cite as: [2008] EWLands LP_8_2005
[New search] [Printable PDF version] [Help]
LP/8/2005
LANDS TRIBUNAL ACT 1949
RESTRICTIVE COVENANT – modification or discharge – obsoleteness - practical benefits of
substantial value or advantage – injury – proposal for conservatory and removal of part of
garden wall – effect of development on visual amenity to objectors’ retained land – planning
permission granted – modification ordered – Law of Property Act 1925, section 84(1), grounds
(a), (aa) and (c)
IN THE MATTER of an APPLICATION
UNDER SECTION 84 of the LAW OF PROPERTY ACT 1925
BY
RICHARD O’BRIEN and
RUTH O’BRIEN
Re: 2 Turnpike Road, Eastfield Meadows, Tadcaster,
West Yorks LS1 8JT
Before: P R Francis FRICS
Sitting at: Leeds Combined Court Centre, The Courthouse,
1 Oxford Row, Leeds LS1 3BG
on
22 January 2008
Josh Shields, instructed by 1 Law, solicitors of Birkenhead, for the applicants
William Hanbury, instructed by Richardson & Co, solicitors of Leeds, for the objectors
The following cases are referred to in this decision:
Solarfilms Application (1994) 67 P&CR 110
Re Page’s Applications (1996) 71 P&CR 440
Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261
Re Gilbert v Spoor (1982) P&CR 239
© CROWN COPYRIGHT 2008
1
DECISION
Introduction
1.      The applicants in this case, Mr and Mrs O’Brien, seek the discharge or modification of a
restrictive covenant burdening land at their home, 2 Turnpike Road, Eastfield Meadows,
Tadcaster LS24 8JT so as to allow the construction of a conservatory on the southern gable end
of the house, and the removal of a section of garden wall. The covenant, which is set out fully
below, has the effect of restricting any building on the land to the private dwellinghouse and
garages thereon in accordance with detailed planning consent granted for the development of
the estate as a whole in about 1988. The applicants say that the covenant is now obsolete, that
the proposed user is reasonable, will have no material impact on visual amenity and will not
injure the objectors. The refusal to grant consent, they say, impedes the reasonable use of the
land, and that preventing the construction of the conservatory gives the objectors no practical
benefits of substantial value or advantage.
2.      The objectors, (1) Oxton Farms and (2) Samuel Smiths Old Brewery (Tadcaster) who
originally sold the land for the Eastfield Meadows development to Persimmon Homes Ltd,
retained amenity strips on the southern and eastern boundaries of the land (at great cost, they
say, in respect of the loss of otherwise obtainable development value), to shield the visual
impact of the development from the A659 York Road to which it fronts, and the adjoining
agricultural land. They also retained and still enjoy ownership of agricultural land on the
opposite side of York Road. They say that, being only recently imposed (1988), the covenant
is not obsolete, the ability to control development and protect the visual amenity of the area is
of substantial practical value and advantage to them, and that discharge or modification in this
instance would create a precedent (the ‘thin end of the wedge’) for further applications from
occupiers of properties on the estate.
3.      At the hearing, Josh Shields of counsel relied upon the Application and his submissions,
and called Mr O’Brien who had produced a brief witness statement of fact in response to the
statement of Mark Butler, the Estates Manager for the first and second objectors, who was
called by William Hanbury. Mr Hanbury also, with permission of the Tribunal, called Clare
Brockhurst, Managing Director of Waterman CPM Ltd, Environmental Planners. She
presented an expert witness report dealing with aspects of the landscape character and visual
amenity that had been prepared by her Associate Director colleague, Jonathan Berry BA
(Hons) Dip LA AIEMA M ArborA, but who had been taken ill shortly before the hearing, and
was unable to appear. I undertook an accompanied site inspection of the applicants’
property, the estate and the surrounding area on the afternoon of 22 January 2008, immediately
after the conclusion of the hearing.
The application land and surroundings
4.      The Eastfield Meadows development within which the application land occupies one
plot, was formed from a 3.13 ha (7.73 acre) parcel of land lying on the eastern edge of the
developed area of Tadcaster, to the north of, and with access from, the A659 York Road, close
2
to its junction with the main A64 Leeds – York trunk road. Immediately to the west
(Tadcaster side) of the site is the large inter-war Auster Bank residential estate, and to the east,
an area of open farmland beyond which lies, on the far outer boundary of the town, a small
warehouse/industrial complex. Land to the north of the development is agricultural, as is that
on the opposite side of York Road (Slip Inn Farm) lying between the A659 and the A64. The
Slip Inn Farm house and buildings which, together with areas of pasture with part wooded
sections to the road boundary stretching towards Tadcaster town, remain in the ownership of
the second objector, are approximately 100 m to the east of Turnpike Road, which is the main
feeder road into the development. Planning consent for the residential development of
Eastfield Meadows was obtained in about 1988, and 2.84 ha (7 acres) of the total area was
conveyed to Persimmon Homes (Yorkshire) Ltd by the objectors, during that year. The
remaining 0.29 ha (0.7 acre) was retained for the purposes providing approximately 8 metre
wide landscape buffers between the road (on the southern boundary of the development), and
the fields on the eastern boundary. Further off-site landscape buffers extending to about 1.20
ha (3 acres) have been provided within the fields on Healaugh’s Farm on the eastern and
northern boundaries.
5.      Persimmon proceeded to construct an estate of approximately 64 mainly detached houses
and garages on Turnpike Road, Toll Bar Way, Bow Bridge View and Eastfield Close. The
applicants’ property is situated at the entrance of the estate on the eastern side of Turnpike
Road, its plot backing onto the landscape strip between York Road and the estate, with its
principal (northern) frontage, vehicular access and detached garage onto Toll Bar Way which
contains a further 9 houses, all of which are on that cul-de-sac’s northern side, facing south.
The O’Brien’s house faces west, and the western boundary is separated from Turnpike Road by
a further short section of return landscaping strip, about 5 metres in depth. The southern and
western boundaries are, therefore, directly onto the retained, landscaped areas and are
separated from them by an approximately 1 metre high wooden fence, which belongs to the
objectors. The landscaped buffers have been planted with a mixture of holm oak, holly and
some conifers, with a now substantial 1.8 metre high and about 2 metre thick hawthorn hedge
on the far (from the application land) side. The section of wall referred to in the application
runs between the south-east corner of the house and the north east corner of the detached
garage, and acts to separate two areas of predominantly lawned garden.
The restrictions and discharge/modification sought
6.      The covenant is contained in a conveyance dated 18 April 1988 made between (1) Oxton
Farms, (2) Samuel Smiths Old Brewery (Tadcaster) and Persimmon Homes (Yorkshire)
Limited. It provides:
“1. The purchaser with the intent so as to bind (so far as practicable) the property
and the land edged green on Plan number 1 and each and every part thereof into
whosoever hands the same may come for the benefit of the retained land of the Vendor
edged blue and in part coloured blue on Plan number 1 annexed hereto and each and
every part thereof and for the benefit of the land of Samuel Smith coloured pink on Plan
number 2 annexed hereto and each and every part thereof (but not so as to render the
Purchaser personally liable for any breach of covenant committed after it shall have
parted with all interest in the Property and in the land edged green on the said plan with
3
number 1 in respect of which such breach shall occur) HEREBY COVENANTS with the
Vendor and as a separate covenant HEREBY FURTHER COVENANTS with Samuel
Smith that the Purchaser and its successors in title will at all times hereafter observe and
perform the following stipulations namely:
(a) Not to erect any building or other erections on the property and on the land
edged green on the plan number 1 annexed hereto except private dwelling houses
and garages in accordance with detailed planning permissions and plans elevations
and specifications first approved in writing by the Vendor, such approval not to be
unreasonably withheld.
(d)     Not to construct any buildings on the property or on the said land edged
green on the said plan with number 1 annexed hereto except with natural clay red
pantile roofs.
(e)     Not to construct any buildings or other erection (including garages and
boundary walls) on the Property and on the said land edged green on Plan number
1 annexed hereto except with evenly cropped magnesian limestone.
7. By a transfer dated 26 June 1992, the applicants acquired title to the application land
from Persimmon Homes, the developer. The applicant sought discharge of the covenant or, in
the alternative, modification, whereby 1(a) above would be modified to:
(a) Not to erect any building or other erections on the property and on the land
edged green on the plan number 1 annexed hereto except private dwelling
houses and garages in accordance with detailed planning permissions and the
conservatory and alterations referred to in the Planning Permission dated 2
January 2003.
The statutory provisions
8. The grounds upon which the application was made were those set out in section 84(1)(a)
(aa) and (c) which provide:
“84-(1) The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of
the court) have power from time to time, on the application of any person interested in
any freehold land affected by any restriction arising under covenant or otherwise as to the
user thereof or the building thereon, by order wholly or partially to discharge or modify
any such restriction on being satisfied-
(a) that by reason of changes in the character of the property or the
neighbourhood or other circumstances of the case which the Lands Tribunal may
deem material, the restriction ought to be deemed obsolete; or
(aa) that in a case falling within subsection (1A) below) the continued existence
thereof would impede some reasonable user of the land for public or private
purposes or, as the case may be, would unless modified so impede such user; or
4
(c) that the proposed discharge or modification will not injure the persons
entitled to the benefit of the restriction.
and an order discharging or modifying a restriction under this subsection may direct the
applicant to pay to any person entitled to the benefit of the restriction such sum by way
of consideration as the Tribunal may think it just to award under one, but not both, of the
following heads, that is to say either –
(i) a sum to make up for the loss or disadvantage suffered by that person in
consequence of the discharge or modification; or
(ii) a sum to make up for any effect which the restriction had, at the time,
when it was imposed, in reducing the consideration then received for
the land affected by it.
(1A) Subsection (1)(aa) above authorises the discharge or modification of a
restriction by reference to its impeding some reasonable user of the land in any case in
which the Lands Tribunal is satisfied that the restriction, in impeding that user, either –
(a)        does not secure to persons entitled to the benefit of it any practical benefits of
substantial value or advantage to them; or
(b)       is contrary to the public interest;
and that money will be an adequate compensation for the loss or disadvantage (if any)
which any such person will suffer from the discharge or modification.”
Applicants’ case
9.      Referring to the grounds under which the application had been made, Mr Shields said
that under (a), the applicants understood that the covenant had been imposed to ensure that the
objectors could retain control of building on the estate, in order to retain its character and to
protect the visual amenity of the land that they had retained. However, due to the fact that
consent had been granted, either upon application or retrospectively for conservatories in
respect of 17 other properties on the estate (some 26% of the total), that restriction must now
be obsolete – certainly as far as conservatories were concerned. As to (aa), it was submitted
that the construction of the conservatory (for which planning permission had been obtained)
would increase the amenity of the property, and the demolition of the wall (for which planning
consent was not required) thus allowing uninterrupted access for the applicants between two
currently separated areas of garden, was a reasonable and sensible proposal. Refusal of
consent to discharge or modify the covenant would impede that reasonable use, and in
impeding that use no practical benefits of substantial value or advantage were secured to the
objectors, especially as their retained land principally consisted of fields in agricultural use. If
there were any loss or disadvantage, money would be sufficient compensation.
10.    The benefit of the restriction accrued, Mr Shields said, to the objectors, but in Mr
Butler’s witness statement it had been suggested that in preventing development that was
visible from the public highway, it was the public that would benefit. Such a benefit was not,
5
as a matter of principle, relevant for the purposes of the Act. Not only were the objectors
private limited companies with no public duties or functions, but public benefit would be too
indirect to be considered a benefit to the objectors. Regarding (c), no injury would be caused
to the objectors if the proposed works were carried out.
11.    In response to the objectors’ specific concerns, Mr Shields said that the impact of the
proposed conservatory would be very limited, and no more than that created by any of the
others that had been permitted on the estate. It would be traditional in appearance, with a roof
line no higher than the level of the ridge tiles to the existing single storey utility room section
of the house, and the base walling would be, as had been confirmed by the applicants as far
back as November 2002, the required magnesian limestone to match the main house walls.
The majority of the building would be invisible from the main road and from Turnpike Road in
any event, due to the thick hawthorn hedge that already existed. This would be especially so in
the summer. Furthermore, as the tree screen planted in the buffer zone matured over the years,
it would be even better shielded.
12.    By virtue of section 84(1B), Mr Shields said that the Tribunal needed to take into
account that over a quarter of the houses on the estate have conservatories that have been
permitted, including outside plots that face onto the northern and eastern boundaries and
landscaping areas. It was unreasonable therefore, for the objectors to object to the appearance
of a conservatory, per se, and their only real ground must be that it would be located at the
entrance of the estate. However, such an argument was unsustainable, as was their expert’s
opinion that the proposal would add to the urbanisation of an otherwise predominantly rural
area. Far from being rural, it was submitted, the area was already built up, and it was not right
on the urban fringe as there was an industrial estate further to the east. Although not a
conservatory, there had been a substantial two storey extension to the south of 11 Eastfield
Close, and similar extensions to 19 Toll Bar Way, both of which faced onto the main road.
Thus, the townscape had already been altered, and preventing the applicants’ proposals would
be of very limited, if any benefit to the objectors.
13.    The objectors’ contention that granting consent to the modification or discharge could
lead to future disputes as to overshadowing caused when the objectors’ tree screen grew to full
height was, Mr Shields said, so remote as to be not even worth considering. In any event, the
applicant had indicated that he would be happy to waive any rights to light, such having been a
requirement of the objectors in other cases where consent had been given. As to the removal
of the wall, the objectors had said that it would affect their visual amenity, but in reality it was
an internal wall within the garden area, and in the applicants’ view, there could not possibly be
any effect.
14.    Mr O’Brien produced a very brief witness statement commenting upon Mr Butler’s
statement for the objectors. He said that there had never been any intention that anything other
than magnesian limestone would be used for the base walling of the conservatory, and
produced a copy of his letter to Oxton Farm Estates of 17 November 2002 in which he sought
consent for the development. He also produced a schedule of the properties upon which
conservatories or other extensions had been built. In cross- examination, he accepted that the
proposed conservatory was very large, would take up a significant amount of the side garden
and would effectively increase the ground floor area of his house by 26%. However, he said
6
he did not consider that to be relevant, and its size, in terms of area rather than height made no
difference to the visual impact question that was the key concern of the objectors. Whilst he
agreed that the granting of consent could act as a precedent for conservatories on the York
Road frontages, Mr O’Brien pointed out that all the other houses that had their southern
boundaries onto the York Road landscaping strip, faced that road rather than backed onto it –
hence nobody would be putting a conservatory on the front of their house, so the situation
would not arise.
Objectors’ case
15.    Mr Butler is employed as Estates Manager for both Oxton Farms and Samuel Smiths Old
Brewery (Tadcaster) Ltd. In his report, he pointed out that the retention of the landscape strips
was not a planning requirement, but they had been incorporated by the vendor in an attempt to
reduce the visual impact of the residential development and to ensure that it was in keeping
with the rural nature of the surrounding land. He said that the applicants’ property could be
clearly seen from the objectors’ retained land on the opposite side of York Road but, in cross-
examination, he acknowledged that it was barely visible from Slip Inn Farm cottages and the
adjacent buildings, and that with the land opposite the application land being purely
agricultural, those working the land would be unlikely to be affected by the addition of a
conservatory.
16.    He explained that all the conservatories that had been permitted on the estate were on
properties that were on the inside of the development, and would not be visible from the
retained land or from the main road, although he acknowledged that there were some on
properties that backed onto the northern and eastern landscape strips. He said that Healaugh
Farms, who owned the agricultural land which abutted those boundaries of the estate was a
wholly owned subsidiary of the second objector, but that any extensions to properties adjacent
to that land are not visible from the public highway, and thus “do not detract from the overall
appearance of the development from public viewing”. Mr Butler referred to 19 Toll Bar Way,
which was in the south-eastern corner of the development, and whose eastern boundary was on
to the eastern landscape strip. The southern (front) boundary was onto Toll Bar Way.
Modification of the restriction on that property (all of estate properties being subject to the
same covenants) had been agreed to permit the construction of a utility room and additional
garage extension. However, the initial application had also sought permission to construct a
conservatory in the rear garden, and that was refused. He said that as the conservatory would
have been well hidden behind the trees planted within the eastern landscape strip the objectors
had subsequently offered to grant consent, subject to the owners relinquishing any rights to
light.
17.    In cross-examination, Mr Butler accepted that the ridge line of the proposed conservatory
would be no higher then the utility room roof, that only a small amount of the building would
be visible from the road or from the retained land, and as the tree screen grew, it would become
even less visually intrusive. He said that it was his companies’ boards of directors that were
uncomfortable with any development on the estate that might be visible from the public
highway as they were keen to preserve, as far as it was possible to do so, the rural character of
the area. There were also concerns that building so close to the landscape strip could increase
the likelihood that it would be affected, in years to come, by overshadowing from the trees and
7
possible damage from falling branches. His directors were keen to avoid any potential for
future disputes, and, he said, that had been pointed out to the claimant in the objectors’
solicitors letter of 6 January 2003. As to the proposal to remove a section of garden wall, Mr
Butler said that it provided a screen from the landscape strip, the road and the retained land.
Furthermore, it was part of Persimmon’s approved landscaping plan, its removal could cause a
precedent that would lead to a haphazard destruction to the fabric of the estate.
18.    The objectors’ expert witness report had been prepared by Mr Jonathan Berry, who is an
associate director of Waterman CPM Ltd, a firm of Environmental Planners. His evidence
dealt with landscape character and visual amenity matters associated with the justification for
the restrictions, and the impact that would be caused by what he considered to be the
implementation of inappropriate development. Due to illness, he was unable to appear, and
his report was therefore presented by Mrs Brockhurst, who is the managing director of Mr
Berry’s firm.
19.    Mr Berry had set out the background to the objectors’ consideration of the application,
and included a table setting out the details of all the applications that had been considered by
the objectors since the development was completed. He said that those upon which consent
had been granted, and covenants modified, demonstrated a general willingness to permit
development that was visually less prominent, and where the integrity of the existing
development line was not compromised. The existence of the covenants had served
historically to deter applications for inappropriate and visually intrusive extensions. The tree
screen had been specifically planted to provide a screen to the estate, and succeeded in doing
so particularly during the summer months when, he accepted, the proposed conservatory would
be barely visible. However, during the winter, it would be clearly visible due to the fact that
the majority of the trees and the hawthorn hedge were deciduous. In his view, the proposal
was of an inappropriate scale in relation to the constraints of the available garden area, and the
close proximity of the tree screen, as it matures, would cast significant shade over the
conservatory, and possibly threaten the integrity of the foundations. Its visibility, he said,
would contribute to erosion in the amenity of the development frontage, and the eastern
approach into Tadcaster “as viewed by a range of receptors”.
20.    He said that in accordance with section 84(1)(a), the covenant could not be deemed
obsolete as the objectors’ land had been protected from inappropriate development since 1988,
and it was important that they retained the right to exercise those controls. As to (aa), he was
of the view that the use of the applicants’ existing land would not be impeded, and there was
substantial value in the ability to be able to safeguard the amenity and surroundings of the site.
Under (c), the objectors would undoubtedly suffer injury if the covenant were modified or
discharged.
21.    Mrs Brockhurst accepted in cross-examination that she had not seen the application land,
and was unable therefore to offer objective comment on visual aspects of the proposal. She
said that her understanding of “visual amenity” was not necessarily that it depicted a
significant view, but what people enjoy as a result of the characteristics of what can be seen.
She thought that the existence of the conservatory on what was otherwise a blank and
uncluttered gable end wall might draw the eye, and thus it would have some impact. In
response to a question from the Tribunal, she said that, from Mr Berry’s evidence, she did not
8
think the ability of the objectors to prevent the proposed development was a practical benefit of
substantial value or advantage to them. The development would be noticeable, but not
significantly so.
22.    Mr Hanbury, referring to Gray: Elements of Land Law, 4th edition, submitted that, in
respect of ground (a) a restriction which tends to preserve a particular environment is not to be
deemed obsolete merely because it “frustrates proposals which, were it not for the covenant,
would seem entirely reasonable”. The covenant had only recently been imposed, and was
clearly not obsolete as it continues to serve the purpose of controlling development in the area.
As to (aa), he said that the ‘value and advantage’ to the objectors may include non-commercial
considerations provided they are cogent and rational. In addition to the effect on the visual
amenity of the retained land, the Tribunal should also consider what precedent may be created
by granting discharge or modification – the “thin end of the wedge” argument.
23.    Mr Hanbury said it was not part of the legal test to just consider whether the owner of the
dominant property could see the proposed conservatory, but it was important that the objectors
retained the power to control development generally. In Solarfilms Application (1994) 67
P&CR 110, which was an application to continue using a bungalow on a small estate as a
children’s day care nursery, HH Judge Michael O’Donoghue said (at 117):
“The objectors who gave evidence each stressed that one of the factors which weighed
heavily with each of them when they purchased their respective houses was the advice
which they had received that their restrictive covenants were enforceable and were
designed to preserve the strictly residential nature of the small and compact estate and to
prevent the intrusion of any user other than residential...
...Counsel for the objectors drew my attention to the decision of Mr JPC Done in Re
Chandler’s Application [(1958) 9 P&CR 512 at 517]. In that case the member in his
judgment considering the provisions of section 84 in their original and unamended form,
said:
...the injury envisaged in the section is not limited by statute to the effect on market
value; it may be related to something entirely personal and, even if a general
relaxation of the restrictions would in fact facilitate the sale of properties and
enhance market values, if the personal convictions and wishes of the objectors are
seen to be sincere and well founded, and their objections not tinged with ulterior
motive, to reject them would be injurious within the terms of the section ...
It seems to me that the practical benefit which is secured to (the objecting
covenantees) is the power left in their hands to scrutinize and if necessary veto any
proposals tending to alter the character of the neighbourhood and I do not think that
the Tribunal’s discretion extends to depriving them of the measure of control when
objections to a proposal are practically unanimous and appear to be reasonable...
Grane Park is a small and compact residential estate which has a pleasant and distinct
character of its own, different to the older terraced housing in its immediate
neighbourhood of Grane Road.
9
In giving their evidence and on the submissions made by them and by counsel on their
behalf, the objectors impressed me as wholly sincere and concerned and not tinged by
any ulterior motive – their prime concern being to retain the character of Grane Park as
an exclusively residential enclave and to avoid traffic disturbance which they claim is
being caused by the user of the day nursery.
Even though none of the present objectors claimed that Mrs Lord’s children’s day care
nursery adversely affects the value of their properties there is, in my judgment, evidence
that these covenants are of practical benefit and of substantial benefit and advantage to
them.”
Mr Hanbury said that HH Judge O’Donoghue also went on to conclude that the covenants in
that case were not obsolete, and the application was dismissed. The circumstances here were
similar, and it was submitted that I should similarly find for the objectors.
24. As to the thin end of the wedge argument, Mr Hanbury referred to Re Page’s
Applications (1996) 71 P&CR 440, where the applicant was seeking to convert part of a stables
complex into residential accommodation. Mr P H Clarke FRICS said, at 454:
“I should, at this point, say something about the ‘thin end of the wedge’ argument put to
me by Mr Warnock [counsel for the objectors], namely that modification of the covenant
leading to the introduction of a residential use in the Stables could lead to further
residential development at the Stables or on adjoining land. Mr Birks [counsel for the
applicant] countered this argument by reference to the planning policies for the area. He
said that planning permission is unlikely to be granted for further residential
development. I have no doubt that the implementation of the planning permission for
the proposed flat at the Stables would make it easier for permission to be obtained for
further residential development in the area. Furthermore, the modification of the
restrictive covenant under the present application would make it easier to seek the
discharge or further modification of the covenant on the remainder of the Stables, even
though a further application would be considered on its merits. In my view, some
weight should be given to the thin end of the wedge argument in this application, which
gives further support to my conclusion that the covenant secures valuable benefits to the
objectors.”
25. Mr Hanbury concluded by saying that what Mr and Mrs O’Brien were seeking was
inappropriate development on this particular part of the estate and it should be borne in mind
that the objectors had readily granted modifications on the estate in circumstances where it was
considered reasonable to do so – in other words, where there would be no detrimental visual
impact to the objectors’ retained land, or where the appearance of the estate would be altered as
far as its impact from the road was concerned. The objectors were entitled, he said, to adopt a
strict approach, and if the Tribunal were to find for the applicants, it would be giving the green
light to other efforts to change the character of the estate.
10
Conclusions
26. If an application is to succeed under paragraph (a), the applicant has to demonstrate that by
reason of changes in the character of the property or the neighbourhood or other circumstances
of the case which the Tribunal may find material, the restriction ought to be deemed obsolete.
In Re Truman, Hanbury, Buxton and Co Ltd’s Application [1956] 1 QB 261, Romer LJ (with
whose judgment Lord Evershed MR and Birkett LJ agreed) referred to the expression
“obsolete” in the following terms:
“It seems to me that the meaning of the term ‘obsolete’ may very well vary according
to the subject-matter to which it is applied. Many things have some value even
though they are out of date in kind or in form – for example, motor-cars or bicycles, or
things of that kind – but here we are concerned with its application to restrictive
covenants as to user, and these covenants are imposed when a building estate is laid
out, as was the case here of this estate in 1898, for the purpose of preserving the
character of the estate as a residential area for the mutual benefit of all those who
build houses on the estate or subsequently buy them.
It seems to me that if, as sometimes happens, the character of an estate as a whole or
of a particular part of it gradually changes, a time may come when the purpose to
which I have referred can no longer be achieved, for what was intended at first to be a
residential area has become, either through express or tacit waiver of the covenants,
substantially a commercial area. When that time does come, it may be said that the
covenants have become obsolete, because their original purpose can no longer be
served and, in my opinion, it is in that sense that the word ‘obsolete’ is used in section
84(1)(a).
27.    In this case, I find I cannot accept the applicants’ argument that because so many
conservatories have been permitted, the restriction must be deemed obsolete. The additional
development that has been permitted to properties on the estate mainly consists of small scale,
typical domestic extensions and, in my view, by no stretch of the imagination could it be
concluded that they have had the effect of materially altering the character of the estate or,
indeed, of the individual properties on it. The restriction was imposed solely for the benefit of
the retained land, and as argued by the objectors, serves the purpose of preventing development
that that might have a material affect upon visual amenity. None of the extensions that have
been permitted could in my judgment be considered to have such an effect, but the restriction is
still capable of preventing development that did. I conclude therefore that it is not obsolete
and the application therefore fails on ground (a).
28.    Turning to ground (aa), I think that by preventing the erection of the conservatory as
proposed by the applicants, the covenant impedes a reasonable user of that land. There was no
evidence to suggest that a conservatory, per se, was not a reasonable use of the land, and the
only argument advanced by the objector related to the building’s scale and resulting impact on
visual amenity. The proposed conservatory does, indeed, appear quite large from the isometric
drawings provided with the evidence, but in my view it is not excessively so. The fact that the
side garden upon which its footprint will lie is fairly narrow at this point, and there will be only
about 1 metre clearance between its south eastern corner and the boundary fence, may have
added to the illusion that it seems larger than it will be. Increasing the ground floor area by
11
some 26% does not seem to me to be unreasonable, and the size of the additional
accommodation does not appear out of keeping in relation to the size of the house overall. A
conservatory extension is undoubtedly a reasonable use on a residential plot, and the covenant
clearly impedes it.
29. There can be no doubt, from what I have said in respect of the application under ground
(a), that the covenant must secure to the objectors practical benefits, but the key question
(under 1A), is whether they are of substantial value or advantage in relation to the retained land
and the wider area. In my judgment, they are not. I have carefully considered the arguments
advocated by Mr Butler about the impact of the proposal on the “otherwise rural
surroundings”, the contribution it would make to the erosion of the amenity within the
development frontage and his report of the directors’ concerns about the need to avoid
potential future disputes that might come from overshadowing or falling branches from the
retained tree screen. On the question of visual amenity, I think Mrs Brockhurst summed it up
nicely when she said she thought the “development would be noticeable, but not significantly
so”. As to Mr Shields’ suggestion that I could only take into account the effect from the
retained land, and should ignore any arguments about the effects on visual amenity from
anywhere else, he is clearly wrong. The matter was dealt with by the court of appeal in Re
Gilbert v Spoor (1982) P&CR 239 (Waller, Eveleigh and Kerr LJJ). That was a case in which
an application was made to discharge or modify covenants restricting building on land to one
house, to permit two additional houses. The objectors, of whom there were several who owned
properties on the estate, were concerned at the potential loss of what, in his decision, the
Tribunal Member had described as a “resplendent view” albeit that that view was not directly
enjoyed from their benefited properties. In dismissing the applicant’s appeal, Eveleigh LJ
said, at 243:
“It is clear from the introductory sentence of subsection 1 of section 84 that its provisions
apply as between the original parties, and to restrictions of any kind. I therefore do not
think that it is permissible to construe subsection (1A) only in the context of restrictive
covenants which run with the land. The first task is to construe the section in isolation
and then to relate it to the facts of the present case.
The words of the subsection, in my opinion, are used quite generally. The phrase ‘Any
practical benefits of substantial value or advantage to them’ is wide. The subsection
does not speak of a restriction for the benefit or protection of land, which is a reasonably
common phrase, but rather to a restriction which secures any practical benefits. The
expression ‘Any practical benefits’ is so wide that I would require very compelling
considerations before I felt able to limit them in the manner contended for. When one
remembers that Parliament is authorising the Lands Tribunal to take away from a person
a vested right either in law or in equity, it is not surprising that the Tribunal is required to
consider the adverse effects upon a broad basis...
...In my judgment, the Tribunal was entitled to hold that the view was a benefit whether
or not that benefit could be said to touch and concern the land. However I am also of the
view that the land of the objectors is, in each case, touched and concerned by the
covenant. The covenant is intended to preserve the amenity or standard of the
neighbourhood generally.”
Agreeing, Waller LJ said, at 247:
12
“I do not accept the appellant’s argument that because the view is the most important thing
it must be a view from the objector’s land that is being interrupted. In my judgment the
question is one of degree. If on a building estate a restrictive covenant is broken by any
plot holder it is potentially an interference with the rights of all the other plot owners. It
may be such that it is a momentary irritation to the owner of land some distance away.
The nearer it is the greater the possibility of it being an interference with the amenities of
owners. If a building estate contains a pleasant approach with restrictions upon it and
some building is done contrary to those restrictions which spoils the approach, if then the
owner of a plot complains about that breach, the fact that he does not see it until he drives
along the road, in my opinion does not affect the matter. He is entitled to the estate being
administered in accordance with the mutual covenants, or local law; so in this case.”
30.    See also Re Mahavir (2006) LT ref LP/69/2004 at para 56 which applies this principle.
31.    In determining this issue, it is clear then that I need to consider not just the effect upon
amenity from within the objectors’ land, but also from the main York Road leading into the
town, and indeed to the objectors’ retained land. The objectors’ retained land opposite the
applicants’ property consists of fields and woodland and it was accepted by Mr Butler that the
applicants’ property could not be seen from the part of the retained land that is occupied for
residential purposes (Slip Inn Farm) so the visual impact would be minimal. It was clear to me
from the plans, photographs and my site inspection that the visual impact of the proposed
conservatory will also be minimal from the main highway and, for that matter, from any other
property on the estate, even in the winter months due particularly to the high and extremely
thick hawthorn hedge that provides a screen. In that regard also, it is instructive to note that
there had been no letters of objection from any of the other occupiers of houses on the estate.
32.    So, having concluded that it is right to consider the broader affects upon visual amenity, I
have come to the view that the impact of the proposed development will be so little as to render
the ability to prevent it taking place is not a practical benefit of substantial value or advantage.
Whilst the objectors’ stated objectives in relation to the enforcement of the covenants generally
are, I have no doubt, admirably founded, I do not think that, in this instance, their concerns are
supported by the evidence.
33.    Although it is accepted that the land belonging to Healaugh Farms on the northern and
eastern boundaries of the estate do not benefit from the restrictions, I think it can be implied
from what Mr Butler said that they have similar concerns about visual amenity, hence the
provision of a screening strip also along those two sides. However, it was clear from the
evidence that conservatory extensions have been allowed on properties backing onto those
boundaries, and consent was said to be likely to be forthcoming for the proposed conservatory
at the rear of 19 Toll Bar Way, which is right beside the eastern landscape strip. I noted from
the site inspection that the screen had grown along the boundary of no. 19 very much better
than the screen in front of the application land, and its thickness there was indicative of how
well that proposed extension would be shielded. It is not the fault of the applicants that the
screen along their southern boundary has taken so long to thicken up, and in my view, some
prudent replanting by the objectors along that section of screening strip would serve to resolve
any lingering concerns they may have about what impact the applicants’ conservatory may
have.
13
34.    Then there is, of course, the question of precedent. Undoubtedly one has been set by the
earlier consents and I do not think one more will make very much difference. This is
particularly so as I accept Mr Shields’ argument that none of the other frontage properties are
likely to want a conservatory addition on their front elevations. The existence of the
covenants on all the properties on the estate gives the objectors continuing control over
inappropriate development, the impeding of which might be of substantial value or advantage,
but in my view the modification sought in this instance is most unlikely to create a stronger
thin end of the wedge argument for other potential applicants in the future. The Solarfilms
application referred to be Mr Hanbury was clearly a case where the circumstances were
somewhat different and one in which there had been a large number of objectors.
35.    In concluding that the covenants, whilst securing practical benefits to the objectors, are
of no substantial value or advantage to them, it follows that ground (aa) is made out. Whilst
money would be adequate compensation for any disadvantage they would suffer, no evidence
was adduced on that question and, in any event, as I think I have indicated above, in my view
no disadvantage will be suffered. My conclusion on (aa) is sufficient for the application to
succeed, but in my judgment discharge would not be appropriate, taking away, as it would, any
residual control that the objectors would have over other, future development proposals at the
application land. I consider modification in the manner sought to be appropriate. Finally, on
(c), it is my view that little if any injury would be caused to the objectors by the proposed
modification.
36.    It just remains for me to deal with the application to remove a section of wall. This is
clearly not a boundary wall, but one that purely serves the purpose of separating one area of
garden from the other. In my view its removal will be of considerable benefit to the applicants,
and being virtually, if not completely, invisible both from the retained land, and from the
highway, I can see no reason whatsoever for the objection.
37.    Adopting the discretion afforded to me under the Act, I therefore determine that the
covenant should be modified in the terms suggested by the applicants, as set out in paragraph 7
above.
38.    The parties are now invited to make submissions on costs, and a letter about this
accompanies this decision, which will become final when the question of costs is resolved.
DATED 22 February 2008
P R Francis FRICS
14
About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010