UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 16 (LC)

LT Case Number: LP/24/2008

                                                                                                                                                     

                            TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

                                                                             

RESTRICTIVE COVENANT – modification – dwellinghouse – covenant not to make alterations and additions without adjoining owner’s approval – application to modify to permit alterations to existing house – Law of Property Act 1925, s84(1)(aa) and (c).

                                                                             

               IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE

                                                  LAW OF PROPERTY ACT 1925

                                                                           BY

                                                                             

                                               JAMES ALAN FAIRLEY WALKER

                                                             Re: “Priddeons”

                                                                     Hadley Common

                                                                     Hadley Wood

                                                                     Barnet

                                                                     Herts EN5 5QE

                                                         Before: N J Rose FRICS

                                  Sitting at 43-45 Bedford Square, London, WC1B 3AS

                                                      on 16 and 17 December 2009

Martin Hutchings, instructed by Cooke Young and Keidan, solicitors, for applicant.

Andrew Francis, instructed by Hunters, solicitors, for objectors.

The following cases were cited:

Re Zopat’s Application (1966) 18 P & CR 156

Re Bass Ltd’s Application (1973) 26 P & CR 156

Winter v Traditional and Contemporary Contracts Ltd [2007] EWCA Civ 1088

Gilbert v Spoor [1983] Ch 27

Cryer v Scott Bros (Sunbury) Ltd (1988) 55 P & CR 183

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

Shephard v Turner [2006] EWCA Civ 8

Duffield v Gandy [2008] EWCA Civ 379

International Drilling Fluids v Louisville Inv. [1986] Ch 513

Re Jilla’s Application [2002] 2 EGLR 99

Re Nichol’s Application [1977] 1 EGLR 144

Re Crowe’s Application LP/34/2006, unreported, BAILII: [2008] EWLands LP_34_2006

Sims v Mahon [2005] 3 EGLR 67

Re Reynold’s Application (1987) 54 P & CR 121

Rickman v Brudenell-Bruce [2005] HC04C03893, BAILII: [2005] EWHC 3552 (Ch)

                                                                    DECISION

Introduction

1. This is an application by Mr James Alan Fairley Walker under section 84 (1) of the Law of Property Act 1925 (the 1925 Act) for the modification of a restrictive covenant affecting freehold land containing a dwellinghouse and known as “Priddeons”, Hadley Common, Hadley Wood, Barnet, Herts, EN5 5QE so as to permit alterations to the existing dwellinghouse. 

2. The restriction was imposed by a conveyance dated 2 July 1962 between (1) John Frederick Stacy Saunders, (2) Christopher John Strode Saunders and (3) Ronald Walker (“the Vendors”), (4) David Joseph Kahn (“the Purchaser”), (5) Norman Stoddart and (6) Doris Amy Stoddart (“the Sub-Purchasers”).  By Clause 4 of the conveyance the Sub-Purchasers covenanted

“with the Purchaser and the persons deriving title under him to the intent and so as to protect each and every part of the property coloured pink and numbered Lot 1 and coloured blue and numbered Lot 5 on the said plan and so as to bind the property hereby conveyed numbered Lot 2 on the said plan and each and every part thereof into whosesoever hands the same may come that the sub-Purchasers and the persons deriving title under them to the said Lot numbered 2 and each and every part thereof will henceforth observe and perform all and singular the following stipulations:-

(i)     No building whatsoever shall be erected on the said Lot numbered 2 except one single private dwellinghouse and outbuildings of which the plans elevations and specifications have been first approved in writing by the Purchaser or his successors in title the owner or owners for the time being of the said adjoining land known as Hadley Chase and no additions alterations or amendments shall be made without such approval thereto first having been obtained …”

3. Subject to two minor changes, the boundary of the land on which Priddeons now stands is identical to that of Lot 2.  Ownership of Lots 1 and 5, on which there is a house known as The Chase, was subsequently vested in Mr  David Kahn and his wife, Elizabeth Fleur Judith Kahn, jointly.  Since 12 September 2006 The Chase has been owned by Mrs Kahn and her son, Richard Julian Kahn.

4. On 9 March 2007 and 14 September 2007 planning permissions were renewed by London Borough of Barnet for certain alterations to Priddeons.  Mr Walker now seeks modification of the covenant to permit such alterations on grounds (aa) and (c) of section 84(1).

5. There is an outstanding objection from the current owners of The Chase, Mrs Elizabeth Kahn and Mr Richard Kahn.  It is agreed that the objectors are entitled to the benefit of the covenant.

6. At the hearing Mr Martin Hutchings of counsel appeared for the applicant.  He called Mr Walker to give factual evidence and two expert witnesses, Mr David Edwin Morgan, a registered architect of Mill Green, Herts, and Mr Clive Beer, HND Agric, Dip REM, MRICS, ACIArb, a director of Savills and chairman of his firm’s rural professional practice for the UK, based at its Telford office.  Counsel for the objectors, Mr Andrew Francis, called factual evidence from the two objectors and Mr David Kahn.  He also called expert evidence from Mr Barrington Sworn, FRICS, a partner in Sworn and Company, chartered surveyors of Chiswick.  On the morning of 21 January 2010 I inspected Priddeons and The Chase, accompanied by representatives of the parties.

Facts

7. In the light of the evidence and my inspection I find the following facts.  Priddeons is located in Hadley Wood, approximately half a mile north-east of Barnet, and close to Hadley Wood railway station (approximately 35 minutes to London Moorgate).  It occupies a site of approximately one acre, with a frontage of about 32m to the south side of Hadley Common, very close to Hadley Green.  Hadley Common runs approximately north-west/south-east from Monken Hadley.  Both Priddeons and The Chase are substantial detached houses standing in their own grounds.  The Chase lies immediately to the west of Priddeons and has a road frontage of some 55m.  The site of The Chase extends to approximately 4 acres and includes a swimming pool and tennis court in the rear garden.

8. Mrs Kahn and her husband have resided in The Chase since 1962.  At that time their son Richard was 18 months old.  He lived with his parents until he left for university in 1980.  The dwelling known as The Chase had been constructed before the 1962 conveyance.  It is in a conservation area and listed, Grade II.  The boundary between The Chase and Priddeons is delineated by a 3m high brick wall which forms part of the Grade II listing.

9. Following the 1962 conveyance, Mr Walker’s predecessors in title (Mr and Mrs Stoddart) built the dwelling now known as Priddeons on Lot 2.  The then owner of The Chase and original covenantee, Mr David Kahn, agreed the plans for the erection of Priddeons with the Stoddarts.

10. Priddeons when first erected was a two-storey four bedroom house.  It has been extended since by means of a western side extension, built in about 1991 by Mr and Mrs Englander, the then owners of Priddeons.  No formal application was made for approval of this extension under the covenant, but the plans were approved informally by Mr and Mrs Kahn.  The works undertaken by the Englanders included provision of a new double garage, the replacement of the old garage’s footprint with a family room (the lower part of the extension closest to the boundary wall of The Chase) and the extension of the roof area into one room at the front of the house with a dormer window looking over Hadley Common.

11. Priddeons is currently a five bedroom family house on three floors, in the occupation of Mr Walker and his family.  Mr Walker purchased Priddeons from the Englanders in 1996.  Alterations to Priddeons, and in particular the installation of dormer windows in the rear roof, have been the subject of discussions between Mr Walker and the owners of The Chase since 1998.  Permission from the objectors for the alterations in the precise form presently proposed was sought by Mr Walker by letter from his then solicitors, Masseys LLP, dated 17 December 2007.  Permission was refused on 8 January 2008 and application made to the Tribunal on 6 May 2008. 

12. The proposed alternations in respect of which modification is sought may be summarised as follows:

(i) The height of the existing first floor extension will be raised by approximately 600mm – from approximately 5.2m to approximately 5.8m, and the existing two west facing bathroom windows will be filled in. 

(ii) A new bay at ground floor level will be constructed at the rear.

(iii) The first floor roof at the rear of the property will be extended to include a flat roof with a conservation “cupola” roof light and a single dormer window above it at first floor level.

(iv) A single storey front extension will be constructed.

(v) Two dormer windows will be constructed in the existing second floor rear roof void (there will be no change to the existing second floor roof line).  Each window will be 98cm wide and 1.6m deep, and project 1.55m from the roof face.

(vi) The proposed changes will increase the volume of Priddeons from 1565 cubic metres approximately to 1725 cubic metres approximately, an increase of some 11%.  The increase in floor area will be approximately 17.5%.

Grounds for the application and conclusions

Ground (aa)

13. It is agreed that, within the meaning of section 84(1)(aa), the proposed user of Priddeons is reasonable and that, without modification, the covenant at clause 4(i) of the 1962 conveyance impedes that use.  The principal issues under ground (aa), therefore, are whether the restriction secures to the objectors any practical benefits of substantial value or advantage to them and, if it does not, whether money would be an adequate compensation for any loss or disadvantage which the objectors would suffer from the proposed modification.

14. Mr Sworn considered that the proposed rear dormer windows would overlook the garden of The Chase;  if the proposed single storey rear extension with a flat roof were constructed it might become more difficult to prevent the roof being used as a sitting out area, further interfering with the objectors’ privacy;  if the pitched roof over the existing single storey extension were raised, and a rear facing dormer constructed in the enlarged roof, this would also give the impression of overlooking;  and the enlargement of the family room adjacent to the patio of The Chase, and the additional side window would result in an increase in noise disturbance. 

15. In Mr Morgan’s opinion there would be no, or at the very least no material overlooking of The Chase from the proposed rear dormer windows.  He produced diagrams showing what he considered would be the views from those windows.  He did not consider that there would be a sight line into the garden of The Chase from the interiors of the rooms served by those windows.  He said that planning permission would not have been granted if there had been any valid overlooking concerns.

16. Mr Morgan expressed the view that there was at present some degree of overlooking from the two bathroom windows on the first floor of the western elevation of Priddeons.  Such overlooking would cease if the proposed alterations were carried out.  Thus, there would be a privacy benefit to the objectors.  There would be no increase in noise.  The proposed family room would be no nearer to the boundary than the existing house and would be separated from the grounds of The Chase by the existing solid boundary wall.  Moreover, the existing outside rear terrace area would be enclosed where it abutted the boundary wall, leading if anything to a reduction in noise. 

17. Mr Beer placed weight on the fact that the local planning authority had considered that the proposed alterations were acceptable in the context of the locality and the neighbouring property.  They would not adversely affect the outlook from The Chase.  This was largely screened by the substantial dividing wall and the trees and hedges between the two properties, depending upon the time of year and the precise vantage point.  In any event, since The Chase was set back from Priddeons it was impossible to overlook the house directly.  The proposed scheme was proportional and had architectural integrity to the existing property.  Although there would be some reduction in the vegetative cover above the dividing wall during winter months – when the garden use would also be reduced – this would not be great in view of the numerous coniferous species.  In any event, it was important to put the issue of overlooking into perspective.  Any garden area that might be overlooked would only be a small proportion of the total area.  Mr Beer accepted that it would be possible to see part of Priddeons from the garden of The Chase, particularly in winter, but the outlook would not suffer “given the appropriateness and proportionality of the proposed development”.

18. In a rebuttal report Mr Sworn expressed disagreement with Mr Morgan’s sight line diagrams.  He considered that the human figure shown in diagram 1 was not of the correct height, and that it was placed too far back from the window.  The potential view over The Chase would be widened considerably if these two errors were corrected.

19. Mr David Kahn objected to the proposed alterations to Priddeons because they would be intrusive, close to the boundary wall and close to the sitting area of his garden.  Over the years he had agreed the plans for the original four bedroom house and subsequently various alterations and additions.  He considered that the changes now proposed to the height and angle of the side roof would be oppressive.  The view from the dormer windows would affect his privacy.  The overall size of Priddeons now proposed was excessive compared with the original house as approved. 

20. In her written statement Mrs Kahn said that she had lived at The Chase since 1962.  She was fortunate to own an exceptional house and garden.  She wished to protect it from what she considered would be an overbearing project next door which would result in increased visual impact, noise and disturbance only a few yards away.  In oral evidence Mrs Kahn said that, in attempt to protect her privacy in case the proposed alterations went ahead, she had planted two evergreen trees and some climbing shrubs, which she had allowed to grow above the boundary wall.  This vegetation, however, was not an inpenetrable barrier to vision, especially in winter.  She would very much prefer there to be no further alterations to Priddeons.  In the interests of achieving a compromise, however, she would be prepared to agree to the proposed works, provided the dormers were replaced with velux windows. 

21. This compromise was not acceptable to Mr Walker.  In the course of the hearing it emerged that, to his surprise, plan No.11, revision B, which was approved by the local planning authority on 14 September 2007, showed a sloping roof light (or velux window) in the section of Priddeons’ first floor roof fronting Hadley Common.  Recalled to deal with this point, Mr Walker said that it was most unlikely that he would agree to a velux window being provided in the position shown on the approved plan.  He would probably submit a revised application, replacing this window with roof lights in the ceiling of the front bedroom. 

22. Mr Richard Kahn gave evidence that, in his view, the scale of the proposed development was inappropriate and would have a detrimental effect on his family’s enjoyment of their property.

23. It is common ground that the proposed alterations would not adversely affect the market value of The Chase.  It is also agreed that the owners of The Chase can only object to an application for approval of alterations to Priddeons, made pursuant to clause 4(i), if the objection is reasonable. 

24. In the light of the evidence I consider it unlikely that the flat roof over the rear extension would be used for sitting out, or that the proposed alterations would lead to a material increase in noise disturbance.

25. I have looked at the site of the proposed works from various parts of the garden of The Chase.  I also gained access to the roof area of Priddeons in order to view the objectors’ garden from the position of the proposed second floor dormer windows.  I bear in mind that it is at present possible, if one stands in a small part of the objectors’ garden, to obtain a very limited view of the tops of two bathroom windows of obscure glass, at first floor level in the western elevation of Priddeons and that these windows would disappear as part of the proposed alterations.  I also bear in mind that the screen of vegetation between the two properties would be greater in summer than in winter; that the overall aspect from the rear of Priddeons is orientated slightly away from The Chase, and that Mr Walker has from time to time offered in correspondence to accept conditions on the proposed modification, in an attempt to allay the objector’s concerns.  I have no doubt that the objection which has been made to the proposed works is reasonable.  The Chase is a high value property, with a large, secluded garden in a conservation area.  The proposed increase in the height and bulk of the existing roof, close to the sitting out area in the objectors’ garden, would be intrusive.  The two second floor dormer windows would be clearly visible from substantial areas of the objectors’ garden.  Whatever the exact sight lines from those windows, people enjoying the objectors’ garden, which is at present extremely private, would have the perception of being overlooked to a significantly greater extent than at present.  In my opinion the restrictive covenant, in preventing this perceived loss of privacy and the increase in the bulk of the adjoining building, secures to the owners of The Chase a practical benefit of substantial advantage to them.  Ground (aa), therefore, has not been made out.

Ground (c)

26. In view of my conclusions on ground (aa) it follows that the proposed modification would cause injury to the objectors.  The application therefore also fails on ground (c).

Result

27. Since the applicant has not established either of the grounds relied upon, the application must be refused.  The parties are now invited to made 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 27 January 2010

N J Rose FRICS