UPPER TRIBUNAL (LANDS CHAMBER)

 

UT Neutral citation number: [2010] UKUT 332 (LC)

LP/11/2009

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – modification – obsoleteness – practical benefits of substantial value or advantage - implicit agreement – injury - application to permit erection of property in accordance with planning consent granted on 28 February 2007 – breaches – status of application - planning issues – modification allowed – Law of Property Act 1925 section 84(1), grounds (a) (aa) (b) and (c)

IN THE MATTER of an APPLICATION

BY

 

STEVEN HAYDEN and

JAYNE HAYDEN

 

Re: The Waves, 2 Hengist Road, Birchington, Kent CT7 9QP

 

 

Before: P R Francis FRICS

 

 

Sitting at: Margate Magistrates Court, The Courthouse

Cecil Square, Margate, Kent

on

10 June 2010

 

 

 

 

 

 

Martin Bromley, litigation friend, for the applicants with permission of the Tribunal

Johannes Kramer, objector in person

 

 

The following case referred to in this decision:

 

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

Margerison v Bates [2008] EWHC 1211

Re Woodhouses’ Application [2010] UKUT 235 (LC) Tribunal ref: LP/19/2009

Crest Nicholson Residential (South) Limited v McAllister [2008] 1 All ER 46

 

The following cases were also referred to in argument:

Ward v Paterson [1929] 2 Ch 396

Shepherd v Turner [2006] EGLR 73

Re Martin’s Application (1988) 57 P & CR 119.

 

DECISION

Introduction

1.           The applicants in this case, Mr & Mrs Hayden, own and occupy The Waves, 2 Hengist Road, Birchington, Kent CT7 9QP (the application land). The application seeks the modification of a covenant “from the single storey restriction to a restriction to the existing planning permission granted for the erection of a detached bungalow and two-storey glazed turret by Thanet District Council under ref: F/TH/07/2007.” They wish to be able to use the loft (currently used for storage) over a large part of the principal ground floor accommodation of the property as presently constructed for residential purposes. The relevant restriction (one of 6 which are set out fully below), has the effect of restricting any building on the land to a bungalow with accommodation on one floor.  The only objectors are Mr Johannes and Mrs Julie Kramer of Terns, 6 Hengist Road, the adjacent property to the south of the application land.

2.           The applicants say that the covenant, which was imposed in an indenture dated 2 June 1923, is now obsolete due to changes in the character of the neighbourhood, that the proposed use is reasonable, that lack of objections from others potentially entitled to the benefit implies their agreement to the required modification, and that no injury would be caused by it.  They say that they are not in breach of any of the restrictions, that refusal to agree to the modification sought would impede the reasonable use of the land and that no practical benefit of substantial value or advantage is secured to the objectors. The objectors argue that the covenant is not obsolete, and the purpose for which it was imposed remains valid.  The proposed use is not necessarily reasonable, and it may cause injury.  Further, they state that the property as existing has not been constructed in compliance with the planning consent referred to in the application, and that the applicants are in breach of not only the restriction referred to in the application, but others too.

3.           Mr Martin Bromley, a retired police officer, appeared for the applicants as a litigation friend and produced a statement of case.  He called Mr Hayden as a witness of fact. Mr Johannes Kramer appeared for himself and his wife. I carried out an accompanied inspection of the application land and Mr & Mrs Kramer’s property immediately prior to the commencement of the hearing.

4.     A few days prior to the hearing (26 May 2010), Mr Kramer applied by email to the Tribunal to adduce additional evidence relating to the distance that the applicants’ property had been built from Hengist Road, and the fact that he now understood there was an intention to use part of the property as bed and breakfast accommodation.  In the light of the late application, and the fact that not only was there insufficient time (with the intervening bank holiday) for the applicants to object or to provide a response, the application was refused.  I explained at the commencement of the hearing that the parties must rely, and were able to expand upon, the submissions that had already been made, but could not introduce new evidence or arguments for which the other party had not received reasonable notice.

Facts

5.     From the evidence, and the accompanied inspection I undertook of the application land, the objectors’ property and the immediately surrounding area on the morning of the hearing, I find the following facts.  Hengist Road is a private cul-de-sac on the western fringes of Birchington, running southwards from the western end of the vehicular section of the seafront esplanade at its junction with the pedestrian promenade.  The Waves is the first property on the right on entering the road and comprises a recently constructed detached principally single-storey dwelling with cream rendered elevations under tiled roofs.  It incorporates, to the north-eastern corner, a two-storey turret containing a staircase leading from a lobby off the kitchen/lounge/dining room area and gives access to the flat roof and balcony over that accommodation, and to double French doors leading into the loft storage area over the accommodation that contains 6 bedrooms, a study, 4 bath/shower rooms and a cloakroom. There is an attached garage to the southern elevation and gardens to the front, north side and rear.

6.     The objectors’ property, 6 Hengist Road, lies immediately to the south of the application land, and comprises a modern detached two-storey and recently extended brick and tiled dwellinghouse with garage. Immediately beyond that house is the dinghy park serving the Minnis Bay Sailing Club which is not accessed of Hengist Road.  On the opposite side of the road are three modern detached two storey private dwellings, and beyond that a secluded detached bungalow constructed, it is understood, in the 1930s at around the same time as the bungalow which was on the application land, and which the applicants’ current property has replaced. Between the northern side boundaries of the applicant’s property, and the first house on the opposite side of Hengist Road, and the esplanade (known as The Parade) is an area of public open space. To the west of the entrance of Hengist Road is the entrance to the sailing club, the Minnis Restaurant and a large car park.

7.     The total area of land conveyed in the original transfer of 12 May 1920 was described by reference to a plan attached to an indenture dated 20 August 1915. Part of the land, shown on the plan attached to the 1920 conveyance was divided into plots, of which the application land was plot 11, and the objectors land occupies part of the designated plots 16 & 17, and part of what was intended to be a spine road serving all the proposed dwellings.  In about 1935 Birchington Improvement Company was wound up and the remaining land was sold to the local council (now Thanet District Council). The council then, in 1982, sold part of the land to Minnis Bay Sailing Club, and in 1997 sold The Minnis Restaurant to private individuals who then sold it on to EHJ Limited of Canterbury in 2003.  The land which now contains the objectors’ property was sold in 1986 and the Kramers acquired it in 1998.

8.           The applicants are dispute with the local planning authority over certain aspects of the property as constructed which do not comply with the amended plans submitted to Thanet District Council on 21 February 2007 and forming part of the consent F/TH/07/2007 granted by them on 28 February 2007.  An Enforcement Notice was issued by the council on 21 May 2008, and as a result, the applicants submitted a retrospective application for the property as constructed, under reference F/TH/08/0858, which was refused on 5 September 2008.  An appeal was lodged, and on 23 January 2009 the inspector in his formal decision stated:

“….in exercise of the powers transferred to me, I direct that the requirements in paragraph 5 of the [enforcement] notice be varied by deleting the words ‘Demolish the Building’ and by substituting for them the words ‘Remove the roof over the entire building and replace it by a roof of the precise design shown on the revised drawing received by the planning authority on 21 February 2007.’ Subject to that variation, I direct that the appeal be dismissed…”

The restrictions

9.     An indenture made 2 June 1923 between the Birchington Improvement Company Limited (1) and Frank Harbrow (2) and Elsie Harbrow (3) imposed restrictions on the application land with the words:

“… and the Purchasers do and each of them doth hereby covenant with the Vendors or other the owner or owners for the time being of the land or any part thereof comprised in and conveyed to the Vendors by an indenture bearing date the 12 May 1920 and made between John Fletcher Dodd of the one part and the vendors of the other part and known as the Birchington Bay Estate and so that such covenant shall run with the said land hereby assured and bind all persons in whom the same or any part thereof shall for he time being be vested…” 

10.        Paragraph 2 of the Second Schedule contains six provisions:

1. Not to use or permit to be used the said land for any noxious or offensive purpose or in such a way that a nuisance or annoyance may be caused to the owner or owners for the time being of the adjoining or neighbouring land

2. Not more then one building to be erected on the said land and no building to be erected thereon other than a bungalow on one floor only

3. No building to be erected on the said land to be of less than seven hundred and fifty pounds the value to be taken at the amount of the first net cost in materials and labour of construction only estimated at the lowest current prices and to be exclusive of the cost of a garage or other permitted outbuilding

4. No building to be commenced until the plans and elevations thereof have been approved by the vendor’s surveyor and fee of one guinea paid for such approval

5. No building to project within fifteen feet of Hengist Road

6. The vendor reserves the right to deal with any other land forming part of the Birchington Bay Estate free from the above restrictions or subject to such other restrictions as the vendor may think fit

Despite the application having being made with reference only to the restriction in sub-paragraph 2, it is agreed that those in sub-paragraphs 4 and 5 are also relevant.

Statutory Provisions

11.        The grounds upon which the application was made were those set out in section 84(1)(a) (aa) (b) 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

(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or

(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

12.        Mr Hayden produced an undated witness statement that set out the grounds under which the application was being made, and said that it was his intention to utilise the pitched roof space as additional residential accommodation.  Although it was already a large property, the ground floor consisted mainly of bedrooms and bathrooms and the current living area just consisted of one large kitchen/lounge/dining room.  He said he intended that the first floor, which had already been plastered out and contained glazed double doors and full depth windows on to the balcony, and Velux flush window units in the roof slopes, as the principal living room. Although there was already a staircase in the turret leading from a lobby off the ground floor living space to the balcony, it was his intention to provide a further internal staircase to prevent it being necessary to go outside (across the balcony) to access the proposed room. In his view, there was no current breach to this, or any of the relevant restrictions.

13.        As to ground (a), Mr Hayden said that there had been considerable changes to the character of the area since the covenant was imposed.  At that time the land was as yet undeveloped, but it was clear from the plan that there was an intention to sell off building plots. A photograph, probably taken in the mid 1920s, showed a bungalow constructed on the application land, and one other at the far end of Hengist Road.  The area was otherwise open and although the plan showed a total of 17 plots, only the application land was sold for building together with plot 5 (to a Mr Hugh Andrew), which contained a similar restriction.  However, plot 5 was never built upon and it was eventually sold to the council in about 1935 when the restriction was released by the original covenantee, along with the rest of the undeveloped land. Since then, four two-storey houses had been constructed on the opposite side of Hengist Road (on land that did not form part of the land referred to in the transfer), and the objectors’ house, also two-storey, had been built (together with a subsequent extension with accommodation on two floors). The area in general had thus become much more built up. Mr Hayden said that the fact that the covenant placed upon the application land was probably only meant to run with the intended building scheme could reasonably be inferred by the fact that a similar covenant placed on the only other plot sold was released before the sale to the council, and the rest of the land transferred to the council was free of such restrictions.

14.        In arguing that the proposed use of the first floor roof space for residential purposes, Mr Hayden said that ground (aa) was clearly satisfied. Other than the bungalow at the far end of Hengist Road that was built at the same time as the one originally constructed on the application land, all the other properties in that road, including that of the objectors, were two-storey. Such a use was obviously reasonable, and the ability to prevent such use on the application land did not secure to those with the benefit any practical benefit of substantial value or advantage.  Furthermore, planning permission was obtained in 2005 to demolish the then existing bungalow on the application land and replace it with two, two-storey houses. However, due to the objections from Mr & Mrs Kramer, that permission was never implemented, and Mr Hayden said he decided to apply for consent to construct a (principally) single storey property for his and his family’s own occupation.  Permission was granted by Thanet District Council on 28 February 2007 in accordance with the plans accompanying the application, under reference F/TH/07/0027.  He said that any concerns that the Kramers may have about the height of the roof of the property as actually constructed would have been very much worse if the two house option had proceeded.

15.        Although it was acknowledged that the objectors were not seeking financial recompense if the modification was granted, Mr Hayden said that in his view money would be adequate compensation for loss or disadvantage, if any, that they may suffer as a result. It should be noted, he said, that the objectors’ property faces onto Hengist Road and is thus side-on to the application land.  It does not therefore overlook 2 Hengist Road, and the use of the already existing roof space for residential purposes would not cause any disadvantage. 

16.        On ground (c), Mr Hayden said that the belief that no injury would be caused to the objectors’ property was supported by the positive comments about the siting, design and scale of the proposed development contained in the planning officer’s report to committee in respect of the 2005 application for two houses on the application land.  The roof line, if two houses had been built, would have been higher than the roof on the property as constructed. Mr Hayden pointed out that since he had built the property at 2 Hengist Road, the objectors had applied for, and received, permission (under delegated powers) for a two-storey extension to their house. The extension, which by the date of the hearing was virtually complete, tended, Mr Hayden said, to dominate his front parking area and overlooked his rear garden. This was far more detrimental than simply changing the internal use of part of a building that had already been constructed, as he proposed to do.  

17.        As to ground (b), Mr Bromley said that the only land benefitting from the covenant other than that belonging to the objectors was believed to be the sailing club, the restaurant and any areas remaining in the council’s ownership. All those other beneficiaries had received the required publicity notice but had not objected.  It could be implied from this, he said, that they consented to the proposed modification. I explained that even if there is only one objection, which there has been, an application under ground (b) cannot succeed, and the matter was not pursued. 

18.        Mr Bromley then referred to the points that the objectors were disputing.  Firstly, Mr Kramer’s suggestion that the definition, in the application, of 2 Hengist Road as being a bungalow on one floor only was wrong, and that the applicants were thus in breach of the restriction.  Mr Bromley said that the planning consent referred to the property as “a detached bungalow with glazed two-storey turret.”  It is in any event, he said, the applicants’ view that the turret is single storey as it does not contain accommodation at the upper level – just the top of the staircase leading to the balcony.  As to the use of the loft space (currently storage), Mr Bromley said that in Ward v Paterson [1929] 2 Ch 396, it was held that a bungalow was a building of which the walls, with the exception of any gables, were no higher than the ground floor, and of which the roof started at a point substantially not higher than the top of the wall of the ground floor, and that it was immaterial in what way the space in the roof of the building so constructed was used.   

19.         Secondly, the objectors’ suggestion that restriction 4 had been breached.  Although this was not referred to either in Mr & Mrs Kramer’s original objection, or their supplementary objections, the fact is, Mr Bromley said, that the applicants did submit plans to the objectors, and paid the required guinea. The objectors then sent the plans to a surveyor who pointed out the areas where, in his view, the restrictions had been breached.  That surveyor did not produce an expert witness report in connection with the application, and was not called. Mr Bromley referred to Margerison v Bates [2008] EWHC 1211 (although there are other cases where this issue was considered) and concluded that the requirement for approval should be interpreted as the vendor of the land in the original transfer (ie Birchington Improvement Company) and not their successors in title.

20.        Thirdly, the alleged breach of restriction 5. Again this had not been raised in the original or supplementary objections. Mr Bromley said that the objectors had declined an invitation to measure the distance of the closest part of the property to the road, and there was no evidence or witness statements to support the claim. He referred to the Land Registry Practice Guide 40 of October 2005 at para 3.2: General Boundaries, and the Land Registry Plans and Land Registry Public Guide 7 of March 2003 which stated:  

“…the great majority of land in England and Wales is registered with general boundaries only.  As a result it is not possible to identify the position of the legal boundary from the register of title and the title plan.”

No attempt had been made by the objectors to apply for a Determined Boundary. He said that the distance to the edge of the tarmac (rather than to the currently defined boundary) was more than 15 feet.

21.        Mr Bromley went on to refer to Re Bass Limited’s Application [1973] 26 P&CR 156 in considering whether the proposed use is reasonable, and to Shepherd v Turner [2006] EGLR 73 on the question of injury under ground (c). He said that the planning consent that had been obtained in 2007 was in accordance with the Isle of Thanet Local Plan and set out the relevant provisions. In conclusion, he said that that the Tribunal would be justified in thinking that the objectors are using this application as a platform to air their grievances in respect of the construction of the bungalow itself, rather than concentrating upon the reasons for which modification was sought. It should be noted, he said, that there do not appear to be any objections from the Kramers dealing specifically with the issue of the proposed use of the roof space.

Objectors’ case

22.        Mr Kramer said that there were four specific points he wanted to make.  Firstly, that the building that exists on the application land is not, as the applicants stated in their application, the same as that for which planning consent was obtained in 2007 under reference number F/TH/07/2007, but it more closely resembles the layout in the (retrospective) planning application F/TH/08/858 which was refused.  A subsequent appeal was dismissed and enforcement action is currently underway. The application notice was therefore incorrect, and what the Tribunal saw on its site visit was not the building referred to in the application.

23.        His second point was that the restriction was being breached in a number of respects. The fact that the roof space is shown on the plans accompanying the retrospective 2008 planning application as being storage, and the turret is clearly two-storey, demonstrates a breach of restriction 2. Whilst it was acknowledged that the applicants had submitted plans for approval, no such approval had been given.  Mr Kramer said that restriction 4 was, therefore, also breached. As to restriction 5, he said that his surveyor had pointed out that “although it is hard to scale from the drawings provided, it appears the nearest point of the proposed building is less than 15 feet from the boundary with Hengist Road.”  The surveyor had also inspected the site whilst the builders were staking it out, and although he had not taken any measurements, the nearest mark to the boundary appeared to be “considerably less” than 15 feet.

24.        Thirdly, in respect of the grounds upon which the application had been made, Mr Kramer said that the applicants’ argument under ground (a) that the neighbourhood has changed is not a ground for obsolescence.  When the covenant was originally imposed, it was intended that the whole area shown on the plan attached to the indenture was due to be built up, and the fact that it has not, is also not a ground for saying it is obsolete.  With the original plots that would have formed the building scheme having remained unsold, there was no evidence that those transfers, if they had happened, would have included such a restriction on height.  It had been proposed that the plots would provide two rows of houses (of which the application land was in the front row, and his own property was effectively in the back row), and thus it could be seen that there would be a benefit in restricting the height of the front row properties [which were between the back row and the sea]. As to the fact that the covenant on plot 5 was released, apparently by agreement between the vendor and purchaser, that was also not a ground for arguing obsolescence on the application land. It may have been that the council (who by then owned the land, rather than BIC which had been wound up) had other intentions for the land that it already owned.  Finally, on this ground, Mr Kramer said that the fact his own house had not been built by the original covenantee was not relevant.  The restrictions on the application land can still serve their purpose, as they are for the benefit of owners of the land (including his own) that was identified on the original plan.

25.        On ground (aa), Mr Kramer said that a reasonable use cannot be established just because other buildings within the road are two-storeys.  The restrictions mean that the property constructed on the application land must be a bungalow, and such a requirement was not unusual.  It was, he said, perfectly possible to utilise the application land reasonably whilst respecting the benefits enjoyed by others, and still comply with the restrictions.   The fact that consent had been obtained on the application land in 2005 for two, two-storey dwellings was not relevant as “the planning department does not take legal covenants into account in their procedures.” 

26.        Mr Kramer then went on to set out in some detail the conclusions of the planning officer and the appeal inspector in respect of the applicants’ retrospective planning application.  The planning officer, in his delegated report concluded:

“It is considered by the council that the development constructed at The Waves, 2 Hengist Road, Birchington, due to its increase in size, height and scale and due to its prominent location within the public realm creates a highly visible and intrusive feature, detrimental to the visual amenities of and out of keeping with the character of Hengist Road.  As such it is considered that the development as proposed retrospectively is contrary to policy.”

In his decision letter of 23 January 2009, the appeal inspector noted that the main issue related to the applicants’ alleged failure to comply with condition 5 of the 28 February 2007 permission which required the development to be carried out in accordance with the revised drawings accompanying the application, and the effect upon the character and appearance of the surrounding area caused by the roof slope of the building as constructed having allegedly been altered with a consequential increase in height and form of the main and garage roofs in the order of 0.6m and 1.1m respectively. He said, at paragraph 6:

“6. It appears that permission was originally granted for two houses on this plot in June 2005, and the appellant says they were higher than the appeal building as built. I agree that on site the dwelling as now built and modified [some alterations having already been made in order to attempt to comply] appears substantially lower than its neighbour, 6 Hengist Road, and The Minnis, the café/restaurant to the rear. But the dwelling also looks to have a substantially greater floor area than those nearby buildings, so that the visual effect of this lower building with a greater footprint is of an appropriate comparative mass to those neighbours. Though I did not see the building when it had its taller roofs, I consider that this increase would have been sufficient to have upset the visual relationship between the three buildings by giving the appeal building an overbearing and bulky comparative mass.

7. This unfortunate relationship to its most immediate neighbours would have been exacerbated when the building was seen across the car park to the rear, as well as within the context of Hengist Road in views southwards from The Parade. Although the other dwellings in Hengist Road are of a substantial detached character and appearance, they are not of comparable bulk to the appeal building…...”

The inspector went on to conclude that the appeal should fail, and that planning permission for the deemed application would not be granted.  He did however direct that the enforcement notice should be amended so as to delete the requirement for the building to be demolished, and replace it with a requirement to remove the roof over the entire building, and replace it with a roof of the precise design shown on the revised plans that had accompanied the application for the 2007 permission.

27.        Mr Kramer said that the application that had been considered there was different from what had been put before the Tribunal in respect of this application.  That was the 2007 permission, and what had been built on the site was not what had received permission.  However, he said, regardless of the ongoing enforcement issues, planning approval in itself does not constitute reasonable use – as had been held in Re Martin’s Application (1988) 57 P & CR 119. He said that the objectors did not agree that money would be adequate compensation as their property was the most affected by the applicants’ proposals.  The development of 2 Hengist Road is intrusive not just to their property, but to the surrounding area in general, and is out of character with the street scene in Hengist Road and The Parade.

28.        The proposals for which the applicants require the modification would, in the objectors’ view cause injury (ground (c)).  The comments of the planning officer and appeal inspector relating to the obtrusive nature of the as-built property prove this to be the case.  Just because permission had been granted for the objectors’ proposed two-storey extension did not, Mr Kramer said, mean that the use of the roof space at the applicants’ property would not cause them injury. 

29.        The objectors’ fourth point was that the applicants had been aware, as admitted by Mr Hayden, of the restrictions since at least 2004, and could have reasonably complied or found an alternative solution. He then summarised the benefits that the restrictions brought to the objectors’ property and said that the height, size and bulk of the building as constructed on the applicants’ land should not have had such an adverse impact on the visual character of the area. The height should have been limited so as to protect the exceptional sea views that were previously enjoyed from their own property. Mr Kramer then concluded by reiterating that he had always believed there was an opportunity for a compromise to be reached with the applicants in respect of the design and construction of the property that currently exists, that would prove beneficial for himself and his wife, and the surrounding area.

Conclusions

30.        The application for modification of restriction 2 relates to the building for which planning permission was obtained in 2007. In terms, it is an application to modify the restriction so as to permit the erection of a building in accordance with that planning permission, and the revised plans that were submitted to the planning authority on 21 February 2007. As was advised to the parties in correspondence from the Tribunal on 27 August 2010, the application cannot be treated as seeking a modification so as to permit the erection of the building that has been erected. That building was not constructed in accordance with the planning permission, and became the subject of an enforcement notice that has been upheld, in modified form, on appeal.

31.        The terms of the application do not seek modification that would permit retention of the building that currently exists, and no application to amend the application has been made.  The objectors’ arguments, therefore, that the application notice was incorrect were therefore apposite.  If there had been an application to amend, the Tribunal would have had to order that fresh notice be given to all those entitled to the benefit of the restrictions. I thus have no power to modify the restriction for what has been constructed on the application land. However, whilst it is accepted that the evidence and argument at the hearing focused principally on the property as built, and upon the applicants’ requirement to use the loft space for residential purposes, I am able to issue a determination on the basis of the application i.e., an application to permit the building for which planning permission was obtained under reference F/TH/07/2007.

32.        The 2007 drawings show a “glazed two-storey turret”, as it was described in the planning permission, and a large storage area over the principal part of the building. While the storage area would be of insufficient height to permit residential use, and would thus not require modification of restriction 2, modification is in my view undoubtedly required in respect of the two- storey turret.

33.        Taking ground (a) first, Mr Hayden's contention was that the restriction was imposed in the expectation that the other plots shown on the 1923 plan would be sold subject to the same restriction, and since the other plots were not sold off in this way the restriction became obsolete.  I am not satisfied that, as a matter of fact, the restriction was imposed on this basis.  It is clear from the provision numbered 6 in paragraph 2 of the Schedule, reserving to the vendor the right to deal with other land without imposing such restrictions, that the restrictions were not imposed as part of a building scheme with mutually enforceable covenants.  But in any event it is clear that the restriction could  benefit nearby land, including that now owned by Mr Kramer, through preserving views that a two-storey dwelling might harm, and that in my judgment was the purpose, or at least one of the purposes, for which it was imposed.  The development of other land in the vicinity for two-storey housing and a sailing club has not rendered this purpose incapable of achievement.  Accordingly I do not think that it has become obsolete.

34.        The application therefore fails under ground (a).

35.        Turning to ground (aa), the Tribunal has historically adopted the series of 6 questions set out in Re Bass Limited’s Application:

1. Is the proposed user reasonable?

2. Does the restriction impede the proposed user?

3. Does impeding the user secure to the objectors practical benefits?

4. Are those benefits of substantial value or advantage?

5. Is impeding the user contrary to the public interest?

6. Will money be adequate compensation?

36.        There is no doubt in my mind that the proposed use of the application land (for the construction of the property in accordance with the planning permission granted in 2007) is reasonable.  It is for residential use, and this is a residential area.  The restriction impedes that use (in respect of the small two-storey section of the accommodation comprising the turret). In my judgment, the ability for the objectors to impede such use does not secure to them any practical benefits of substantial value or advantage. The turret is a small, and in my view, architecturally interesting feature that is located at the opposite end of the property to the objectors’ house. It would have little impact on views towards the sea even if any of the principal windows in 6 Hengist Road faced in that direction, which they do not. I reiterate here that in reaching this conclusion, I am considering what was permitted in 2007, and not what was subsequently constructed.

37.        There was no suggestion that impeding the use would be contrary to the public interest, and the question of compensation also does not arise. I find that the application under ground (aa) has been established, and it is therefore not necessary for me to consider the alternative ground (c). Having found that I have jurisdiction to modify the restrictive covenant I must consider my discretion to do so by reference to section 84(1B) of the 1925 Act.  I have taken into account the development plan and the pattern for the grant or refusal of planning permissions in the area as well as the context in which the restriction was imposed together with all other material circumstances to which my attention was drawn.  There is nothing arising out of my consideration of section 84(1B) that justifies refusing the relief sought as a matter of discretion, such relief to be by way of modification so as to permit the erection of the property in accordance with planning permission F/TH/07/0027.

38.        Turning to restriction 4 (which along with restriction 5 did not form part of the application, but which the objectors said had been breached), I note the argument promulgated by Mr Bromley in respect of Margerison.  The question of whether or not a restriction is spent was considered recently by the President in Re Woodhouses’ Application [2010] UKUT 235 (LC) Tribunal ref: LP/19/2009 where he said at paragraph 10:

“In the case of a covenant requiring the approval of building plans where no provision is made in the event of the vendor’s death (or, if a company, its dissolution) there is a strong argument for construing the restriction as one that becomes spent if the vendor dies (or is dissolved): see Crest Nicholson Residential (South) Limited v McAllister [2008] 1 All ER 46 per Neuberger J at paras 39 to 42”

In my judgment this restriction is clearly a Crest Nicholson type restriction which is now spent and thus the application would succeed under grounds (a) and (c).

39.        Restriction 5 may have been breached, although only very marginally.  Two parts of the current building are within 15 feet of the boundary onto Hengist Road. It appears from the site plan accompanying the 2007 application (bundle p2/60) that both the proposed and actual buildings occupy the same footprint, so if the originally permitted property had been built, it would have been in breach. The distances from the corner pillar by the front door, and the corner of the turret were measured in my presence, and were both 12’6” away from the boundary fence. However, I do not consider that this difference from the intended building line is significant and in my view no injury would be caused by its modification.  It would therefore succeed under ground (c) and, as it does not in my view secure to the objectors any benefit of substantial value or advantage, also would also succeed under ground (aa).

40.        Finally, as I have said, under the terms of the application, I am not concerned with whether the restriction (or restrictions) should be modified so as to permit the building that has been erected and is the subject of the enforcement notice that was upheld, in amended form, on appeal.  That building, with the potential for residential use above the principal part of the accommodation, and thus with greater bulk, would raise different considerations and it has been judged by the local planning authority and by the inspector on appeal to be overbearing and to have an unfortunate relationship with neighbouring properties. 

41.        This decision will become final when the question of costs is resolved, and the accompanying letter deals with the procedure for making submissions on costs in writing.

DATED 15 September 2010

 

P R Francis FRICS