UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 320 (LC)

LP/35/2009

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – discharge or modification – restriction preventing redecoration or alteration of building exterior – requirement to replace patio doors/windows – whether covenant obsolete – whether proposed use reasonable – whether practical benefits of substantial value or advantage secured by restriction – whether discharge or modification would cause injury – application refused -  Law of Property Act 1925, section 84 (1)(a), (aa) and (c)

IN THE MATTER of an APPLICATION under

SECTION 84 of the LAW OF PROPERTY ACT 1925

 

BY

 

 

STEPHEN DAVID ROBERTS

and

SHIRLEY DIANE ROBERTS

 

 

Re: 7 Storm, 85 Banks Road, Sandbanks, Poole BH13 7PP

 

 

Before: P R Francis FRICS

 

 

Sitting at: Poole County Court, Law Courts, Civic Centre,

Park Road, Poole BN15 2NS

on

23 August 2010

 

 

 

 

Justin Shale, instructed by Druitts, solicitors of Bournemouth, for the applicants

Peter Langlois, instructed by Coles Miller, solicitors of Poole, for the objectors

 

The following case was referred to in argument:

Truman Hanbury Buxton & Co Ltd’s Application [1956] 1 QB 261

 

 

The following case is referred to in this decision:

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

 

DECISION

Introduction

1.           This is an application by Mr & Mrs S P Roberts under section 84 of the Law of Property Act 1925 for the discharge or modification of a restrictive covenant affecting freehold land containing a terraced 4 storey townhouse known as 7 Storm, 85 Banks Road, Sandbanks, Poole (the application land) so as to allow them to replace their existing uPVC patio door and window units.

2.           The restriction was imposed by a transfer dated 13 May 1994 between (1) Yellow Three (South) Limited (the Transferor), (2) Glen Acres (Properties) Limited (the Transferee) and (3) Storm Management Limited (the Management Company). Clause 4 of the transfer stated:

“The Transferee hereby covenants with the Transferor and as a separate covenant with the Management Company and as a separate covenant with any person who is or may become a transferee of any other unit on the Site [85 Banks Road] so as to benefit the remainder of the land comprised in or formerly comprised in the above title number and to bind the property hereby transferred into whosoever hands the same may come as are set out in the Third Schedule hereto.”

Paragraph 11 of the Third Schedule stated:

“Not to redecorate the exterior or alter the exterior of the buildings (including the windows thereof the garage and garage door) erected on the Property.”

3.           The applicants wish to replace the existing Rehau uPVC window and patio door units on the ground, first and second floors of the front and rear elevations of their property with new powder coated aluminium framed units, the opening sections of which have a different operating mechanism, and thus a marginally different profile to the original units (that remain in all the other houses on the development). 

4.           By their application dated 3 July 2009 Mr & Mrs Roberts proposed that the covenant, if not discharged, should be modified to read:

“Not to redecorate the exterior or alter the appearance of the exterior of the buildings (including the windows thereof the garage and garage door) erected on the Property save for the replacement of the windows thereof, doors or garage door with replacement fittings of the same colour and general appearance of the original fittings but to enable the use of different base materials and mechanism.”   

5.           There are objections from Storm Management Limited, the management company (in which each of the properties comprising the Storm development has one share), and the individual owners: David Mosey and Cecile Georgette Mosey (1 Storm), Duncan Richard John Stone and Helen Stone (2 and 3 Storm), Charles Edwin Bracken (4 Storm), Peter John Standish and Diane Elizabeth Standish (5 Storm), Stephen Allen (6 Storm) and Colin Ross Sharpe (8 Storm). It is agreed that all of the objectors are entitled to the benefit of the covenant.

6.           At the hearing, Mr Justin Shale of counsel appeared for the applicants. He called Mr Roberts as a witness of fact, and Mr Thomas Green MSc BSc (Hons) MCIAT IHBC Assoc RICS MB Eng ACI Arb, Managing Director of Greenward Associates, Designers and Surveyors of Bournemouth, who gave expert evidence.  Also, following an application at the commencement of the hearing (which I granted), Mr Gareth Smith, a director of Poole Joinery Ltd, was called as an expert in the field of double glazing installation and suitability of materials. For the objectors, Mr Peter Langlois called Mr John T Robinson BA FRICS, a Director of Smith Robinson Higley, Chartered Surveyors of Poole, who gave expert evidence.  He also called Mr Stephen Allen, Mr Duncan Stone and Mr Peter Standish as witnesses of fact. I carried out an accompanied inspection of the application land, two of the objectors’ properties and the site of the Storm development generally immediately following the hearing.

Facts

7.           Storm is a modern “gated” development comprising a single terrace of 8 three and four-storey townhouses constructed to a nautical theme in about 1994 of traditional materials including white rendered walls under sail shaped curved pitched roofs. Fronting onto Banks Road, the properties enjoy exceptional views over Poole Harbour towards the town and Brownsea Island. The site also backs directly onto Sandbanks beach (to which it has access) and there are similarly outstanding southerly views over the sea towards the Isle of Wight to the east, and Studland Bay and Old Harry Rocks to the west. All of the houses have uPVC double-glazed windows and doors.  The 4-storey inner terrace units (of which the applicants’ is one) have full height patio type windows/doors on ground, first and second floor on the rear elevation, and first and second floors to the front and all lead onto small balconies.  The end units are 3-storey. 

8.           The applicants’ property, which was purchased by them in October 2007, is one unit in from the western end of the block and, together with numbers 8, 6, 3, 2 and 1, has porthole style circular uPVC windows to the top floor rooms.  It contains 4 bedrooms and 2 reception rooms with, to the rear of the ground floor, a small terrace enclosed by a dwarf brick wall, and communal lawned gardens beyond leading to a glazed wind/sand screen separating the development from the public beach.  To the front are a driveway and parking area, and two blocks comprising eight double garages, one serving each property.

Issues

9.           The issues to be determined are whether any of the statutory grounds upon which the application was made have been satisfied, and if so whether the restriction should be discharged or modified.  I set out the cases of the parties, before turning to the legal submissions on the grounds and my conclusions.

Applicants’ case

10.        Mr Roberts said that immediately after he and his wife purchased their property, they undertook extensive modernisation and refurbishment work as it had had little done to it since it was built. In about December 2008, soon after that work was completed, significant water ingress problems became apparent beneath the patio doors, causing damage to carpets, lifting floor tiles and damp staining to the adjacent walls.  There were also problems with the door mechanisms and seals, and as some of the fixings and screws were not of the galvanised or stainless steel variety, considerable rusting occurred, and that led to brown stains on the carpets. He said he spoke to some of his neighbours who admitted that they had also suffered some problems, and they had used a company called “Mend-it” (now known as “Fix-it”) to replace seals, fixings and closing mechanisms to varying degrees.  

11.        Having himself gained experience in the double-glazing industry, Mr Roberts said that he came to the conclusion that the existing units, which were manufactured by a company called Rehau, had come to the end of their useful life. Furthermore, he was of the opinion that due to the extremely exposed location of the properties, and the buffeting they get from the elements, including salt laden sea spray and sand from the beach, the original units were totally inappropriate and should never have been installed. Sand not only gets into the runners at the base of the 3-panel units, but also blows in through the night vents in the top of the opening centre section. That opening section can also be seen to visibly flex in strong onshore winds, this being the result of it being a “tilt and slide” mechanism.

12.        Mr Roberts said he contacted Poole Joinery about the problems, and they concurred with his views that tilt and slide was not the best solution, and that a “push and slide” door would be more appropriate. Whereas the existing units required the central opening panel to be tilted inwards from the top, and then slid behind the fixed panel, the alternative was a panel that was pushed outwards, and then slid in front (on the outside of) the fixed window. In Mr Roberts’ view, this would provide a much more weather tight unit, and with fewer moving parts, there was less to go wrong. He said he obtained brochures for a “Visoglide” push and slide system manufactured by Smart Systems Ltd of powder coated aluminium, and made these available to Mr Standish (who was one of the two directors of Storm Management Ltd). Aluminium units were altogether much more suitable for this environment, being more substantial in terms of construction and quality. He said that they were also significantly more expensive than uPVC units, and it was generally accepted that such units were vastly superior and were now much more popular.

13.        However, Mr Roberts said that Mr Standish (on behalf of the company) would not agree to replacement with aluminium units, and it was suggested that he should “make do and mend”, which is what the other residents had done when they had problems. There were concerns that, with the different type of opening mechanism, and the construction of the units, they were not an exact match and thus the uniformity of the building as a whole would be unacceptably compromised. In Mr Roberts’ view, the slight difference in the thickness of the mullions, and the wider side sections would not be noticeable “unless it was pointed out” to the observer. It was also ridiculous to suggest, he said, that only repairs should ever be considered.  The time must come (and in his opinion it already had) when renewal became essential and so the situation had to be faced.   The management company’s attitude that, perhaps if they had maintained the existing units better, the ongoing problems would have been alleviated was, he said, an insult.

14.        Mr Roberts said that in May 2009 his wife and their solicitor attended the AGM of Storm Management, at which it was agreed that a “push and slide” system would be acceptable in principle.  However, there were concerns over dimensions, fittings, and the fact that the proposed replacements were powder coated aluminium.  The solicitors wrote to the management company on 5 June 2009 seeking agreement to the applicants’ proposals, and advising that if it was not forthcoming the matter would be referred to the Lands Tribunal.  As no such agreement was reached, the company having apparently reversed its decision to accept a different closing mechanism, the application was made.

15.        In cross-examination, Mr Roberts accepted that a complete discharge of the restriction would potentially open the floodgates to abuses of the need to retain uniformity in the appearance of the building as a whole, and said he was perfectly happy with modification.  He also acknowledged that the wording of the modification as proposed would enable alterations to be made without having to obtain the management company’s agreement but said that was never the intention.  He was happy for the proposed re-wording of restriction 11 to be amended to reflect those concerns.

16.        Mr Roberts said that whilst he was keen to install the Visoglide windows, he accepted that due to its different closing mechanism the centre panel was markedly different to the existing units in terms of appearance, and would be prepared to adopt replacement tilt and slide units along the lines of the “Smart Imperial” system that had been offered as a potential (although not definite) compromise solution by the management company at a meeting the week before the hearing.  They were also powder coated aluminium framed units, but the appearance was much closer to what existed. The objectors’ suggestion that, if “make do and mend” was not acceptable, then a straight replacement Rehau uPVC system should be installed was not acceptable to Mr Roberts.  He acknowledged that the latest version was technically much more advanced than that which had been installed when the property was built, but re-iterated his view that uPVC was just not appropriate for such an exposed location.

17.        Mr Green has extensive experience in the design and construction of housing and flat developments and in recent years has specialised in the analysis and rectification of construction defects to both historic and modern buildings. His report identified and listed the defects he found to the windows in the applicants’ property, and confirmed the problems that had been identified by Mr Roberts, and set out in his evidence above. He noted the dampness, lifting tiles, corroded fixings and defective weather seals, and said that it was evident that the adjustments that had had to be made to the door operating mechanisms over the years were now at their limit. The adjustment cams were fully extended, and further tightening (to ensure an adequate seal) was not possible.  There is also cracking to the plasterwork immediately adjacent to the window units, the likely cause being flexing to the uPVC framework. The drainage channels to the base of the units were noted to be full of sand, and required clearing to allow stormwater to disperse properly.

18.        Whilst tilt and slide windows work well as a general rule, Mr Green said that they do tend to suffer greater water ingress than traditional push and slide units because of the method by which the opening centre panel is sealed against the fixed panels to each side. Furthermore, the heavy weight of the opening panel tends to wear the tilting mechanism, and as a result it is normal for warranty periods to be less for this type of installation. The now badly corroded and rusty anodised fixings used on these windows are now obsolete, and have been replaced by an improved range that has superior anti-corrosion properties, and is manufactured in aluminium.  In his view, the type of windows installed in the applicants’ property were unsuitable for the harsh marine environment in which it is located, and they have now reached the end of their useful life.  

19.        Mr Green said that the proposed Visoglide replacement units were far more suited to this location, would have better weather sealing properties and would be less likely to flex.  He thought the fact that the mullions would be 30mm thicker and slightly wider than those to the existing windows would have little impact on the overall appearance of the block, and would look no different to the untrained eye. The colour of the powder coating to the frames could be matched exactly to the now off-white colour of the existing windows remaining in the other properties, if required. 

20.        As to the suggestion that a compromise may be possible by installing the Smart Imperial tilt and slide aluminium framed units, Mr Green said that in his opinion the push and slide mechanism of Visoglide units that have an external runner was better suited both due to its better weather seal and because whilst the runner would get sand in it, it could easily be swept out.  It was better, he said, for the runners to be where they are most visible so that their condition could be easily monitored.  He agreed with the objectors’ expert’s view that “the present uPVC system in the property has significant drawbacks” and that whilst they are now out of production, the replacement Rehau 703 system is visually identical. However, he said that the problem was that uPVC units were simply not up to the job in this location. It was noteworthy, he said, that the original detailed planning consent for the properties specified aluminium framed double glazed units, but they were changed for the uPVC systems in order to save on construction costs.

21.        Mr Gareth Smith of Poole Joinery said that his company had stopped installing tilt and slide window patio door systems because of problems that had been encountered with them generally – not just in this location.  Although he knew of the Smart Imperial option, he had never installed it.  In his view the push and slide Visoglide system would be an appropriate solution, and he thought that the difference in profile of the frames and mullions would not be noticeable from, say, the beach.

Objectors’ case

22.        The objectors’ case is that not only would it be wholly inappropriate to discharge the restriction, but it is also not necessary for any modification to be made to it.  They say that they do not object to the replacement of the applicants’ windows so long as they are of identical appearance. To modify the restriction on the lines of what is proposed by the applicants would mean that they were able to undertake works without consulting the management company, and that would be in direct contravention of its aims and objects.  It is essential that any works that are undertaken to the exterior of the properties are done by agreement with the company, and by dint of that, all of the other residents pursuant to the restriction, rather than by modifying or discharging it. Further, the proposed modified wording of the restriction is open to varying interpretations and could lead to disputes as to its construction. 

23.        As to the applicants’ proposals, Mr Robinson, who is a Chartered Surveyor with over 30 years experience in the area, had been instructed by the objectors’ solicitors to provide a report setting out his views and professional opinion. He said that in the location of the property weather conditions could be extreme, and the rear, sea-side elevation was particularly vulnerable.  In addition to wind blown rain, sand from the beach clogs the trickle vents in the double glazed window units, door rebates and runners causing accelerated wear to the moving parts and locking mechanisms if not cleared regularly. At the time of his inspection, the doors at the upper levels of the property had been sealed with plastic sheeting in the applicants’ attempts to prevent water ingress. Although damp staining was evident to the carpets at the base of the units, there was no evidence of high-level staining that would suggest failure of drip trays, damp proof courses or the frames themselves. The problems did not seem to be with the fixed panels, but due to poor sealing between them and the opening central door.  There was some plaster cracking between walls and the double glazing units which, he said could be cured with mastic sealant.

24.        In his report, at paragraph 3.5 (iii) he said in answer to a question as to whether the existing (or a direct replacement) uPVC system was fit for purpose, Mr Robinson said:

“It has to be acknowledged that the present uPVC system in the property has significant drawbacks. The doors open inwards and the uPVC sections flex. The doors have a ‘face’ drainage system, rather than the ‘concealed’ drainage now used to stop water blowing back under the door. To ensure water tightness the gasket seals and securing mechanisms need to be kept in good order, and regular maintenance and periodic replacement of those component parts is required. If the gearing mechanism is properly maintained, the door tightens to the frame and provides the necessary rigidity and strength to prevent flexing…”

He said that it was possible to refurbish the existing units, and that, despite what Mr Green thought, replacement parts were understood to be available. Although he thought that a further 10 years useful service might be possible if the existing units were refurbished (as had been done by other occupiers who had encountered problems), he could not rule out further problems occurring if, as appeared to be the case with the applicants’ property, ongoing maintenance was not carried out. Mr Robinson said that the latest Rehau 703 uPVC system was all but identical to the existing units in appearance, but even if that was installed, the same concerns over regular maintenance would apply.

25.        As to the Visoglide system that the applicants wanted, Mr Robinson said that having the opening central panel sliding to the outside of the fixed unit meant that the runner would be seriously exposed, and would require even more regular clearing out. Whilst he had not had an opportunity to consider the Smart Imperial system, he said he was not in principle opposed to powder coated aluminium units so long as they were all but identical in appearance and profile, and that the colour could be matched with the existing units in the other properties. Certainly, he said, if he were advising a developer now who was intending to build in this location, he would recommend the powder coated aluminium fittings mainly due to their increased strength.  He also thought that tilt and slide was better for that particular location, and for security, particularly as the central unit could just be opened at the top for ventilation, whereas the push and slide system required the whole door to be open.  In other words, the former doubled as a window whereas the latter did not.

26.        As to the restrictive covenant, Mr Robinson said that the restriction that the applicants wanted modified was imposed to maintain the appearance of the building as a whole for the benefit of the owners.  The fenestration is an important part of the design, and piecemeal changes to the design and appearance would have an adverse visual effect and possibly detrimentally affect property values. The wording of the restriction as it exists is, he said, entirely reasonable and serves the purpose for which it was imposed.

27.        Mr Allen (6 Storm) is one of the two directors of Storm Management Ltd (along with Mr Standish) and said that it is responsible for the external maintenance and decoration of the block as a whole. The restriction in question enabled the company to ensure that the building’s uniformity was maintained, and this was important. It had, for instance, prevented the proposed erection of a porch on one of the other properties. In his personal capacity, Mr Allen said that when he purchased his property in 1994, he and his wife were comforted that, unlike many other local properties, there was a management company in place. They had not suffered from any major problems with their window units, other than some water ingress in a severe storm on 31 December 1998. Replacement of the closing mechanism and rubber seals cured the problem, and it has not recurred. He said that he has Fix-it to maintain the units once every 3 years or so.

28.        Mr Allen said that although he was concerned that there may be some maintenance issues with aluminium frames, and questions over whether the powder coating might weather and discolour at a different rate to uPVC, the attitude of the residents was that so long as the proposed replacement units were identical in appearance, there should be no problem.  In the system that was first proposed (and no proper details had ever been provided to Storm Management, despite a promise by the applicants to do so), the mullions were wider and the appearance would be noticeably different. Although the management company had just come up with a possible solution (the Smart Imperial system), full details would need to be considered and it would require the agreement of all the residents if that was to proceed. He insisted that Storm Management had not been difficult or obstructive, as suggested by Mr Roberts, but had always been prepared to consider options, if full details were made available.

29.        In his view, Storm comprises one of the most striking properties on the Sandbanks peninsular, and it is critical to the lasting value of the block that the symmetry and uniformity of this award winning building are maintained.  Amendments or modifications to the restriction could lead to unilateral action by individual owners which would compromise that value.

30.        Mr Stone (3 Storm) reiterated what Mr Allen had said, and confirmed that he had his own windows maintained by the same company “about every 3 years.” He had suffered some leakages in severe storms, but maintenance works had cured the leaks, and no problems had been encountered for five years.

31.        Mr Standish said that he too had had problems of water ingress about 10 years ago, but after mechanisms and seals had been replaced, he had suffered no further problems. He set out in some detail the precise role of Storm Management Ltd and said that all major decisions regarding the management of the property are taken collectively by all the shareholders, usually at the AGM. He said it is essential that this type of control remains, and that the external appearance cannot be changed to suit the tastes and wishes of individual owners.  Modification or discharge of restriction 11 would remove the protection that currently exists.

32.        It was accepted that there would come a time when windows would need replacement, and he stressed that there was no objection from the management company or any of the shareholders to the installation of direct replacements that matched the existing windows.  He said he understood that the latest version of the Rehau tilt and slide range would be of the same material and colour as the existing units, and that whilst the dimensions may not be absolutely identical, any differences would be indiscernible to the untrained eye.  Such a replacement would, therefore, comply with the requirements of the restriction without it needing to be modified or discharged. Mr Standish refuted the applicants’ assertions that he and the management company had been obstructive and difficult, that they had resolutely refused to consider replacements and that they had insisted the existing units must remain and should be repaired.  He produced evidence to prove that he had tried to assist the applicants (email of 24 April 2009) and there was also a helpful letter from their solicitors of 30 July 2009.

33.        Mr Standish stressed that Storm Management had consistently tried to obtain precise details of the applicants’ proposed replacement units, but that information had not been forthcoming.  All it needed was full chapter and verse, from which the company and the other residents would have the information upon which a decision could be made. This also, he said, goes for the suggested possible compromise (see below). He accepted that the minutes of the 2009 AGM recorded that the residents were concerned that any replacements should be of the same design and materials.

 

34.        At the commencement of the hearing, I received an application for supplementary witness statements from Mr Standish and Mr Stone to be admitted.  This was allowed. The statements outlined details of a meeting that had taken place on 16 August 2010 between Mr Standish, Mr Stone and two other objectors and the applicants, their solicitor and a representative from Poole Joinery with a view to finding a mutually acceptable resolution to the dispute. Mr Stone said that no new proposals were put forward by the applicants, and they and their representatives said the Visoglide push and slide mechanism was the only suitable product. No resolution was reached at the meeting, but following it Mr Stone said he sought to consider possible alternative solutions and contacted Smart Systems (who manufacture the Visoglide product) and Dorset Glass. Smart referred him to a recently built property known as “Vision”, a few hundred metres away from Storm and in an even more exposed location, which had tilt and slide windows fitted. He said that Mr Little of Smart systems told him that the Visoglide system would not be suitable in this location, and recommended the Smart Imperial tilt and slide aluminium framed units (IP 136). Mr Stone produced photographs and scale drawings demonstrating just how similar this alternative was to the existing units, and just how different the applicants’ preferred units were. It was suggested that, subject to further consideration, the Smart Imperial windows might be an acceptable solution, but as at the date of the hearing insufficient detail (such as samples) had been made available for a final decision to be taken.

Submissions on grounds of application, and conclusions

35.        Despite the indication I gave at the commencement of the hearing that I thought the application for discharge was bound to fail, Mr Shale submitted that he was not abandoning that aspect because a strict interpretation of the wording of restriction 11 was that no renewals could ever be made. It was, therefore, unworkable and should be discharged. Mr Langlois said that discharge of this important restriction was unthinkable.  It would mean that it was open to any of the residents to paint their properties “with pink polka dots” and there would be nothing the management company could do about it. He said that the restriction was part of a coherent system of covenants in force between the freehold owners amongst themselves and the management company.  That scheme offered protection to the individual homeowners, and ensured that the block as a whole was maintained in accordance with the scheme of covenants. An owner can seek the approval of the management company and the other freeholders for any proposed exterior works and by democratic decision making they can approve collectively an overall change in the appearance of the property as a whole is they so wish. The management company acts as a democratic arbiter in respect of any works which individual owners wish to carry out, and discharge (or modification) of any of the restrictions in respect of one individual property would take that power away and give it to the individual freeholder. Thus only the applicants would fall outside the scheme, and all the others would still be bound by it.  This would make the scheme unworkable, and potentially lead to more disputes.

36.        I agree with counsel for the objectors, and in my judgment the application for discharge must fail on all three grounds relied upon.  I therefore concentrate on modification. 

 

Ground (a)

 

37.        Ground (a) provides:

“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.” 

Mr Shale said that the restriction ought to be deemed obsolete insofar as the intention of it cannot have been to prevent replacements of a similar nature and appearance. The windows were defective and needed to be changed. What was proposed was similar in appearance and, indeed, of better quality than what was already there.  Mr Langlois submitted that it was for the applicants to satisfy the Tribunal in respect of both limbs of section (a). There was no reliance in the application on an argument for change of character either to the property or to the area. The need for repair or replacement is certainly not an unexpected change in circumstances – that being expressly dealt with in the management company’s objects.

38.        He said that the meaning of obsoleteness was dealt with in Truman Hanbury Buxton & Co Ltd’s Application [1956] 1 QB 261 where Romer LJ said in terms of the essence of obsolescence (at 272): 

“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 the 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).”

It was submitted that the opposite is true here. 

39.        I am not persuaded by the applicants’ argument.  In my judgment the purpose of the restriction can clearly still be achieved, and that purpose is as important now as it was when the property was originally built.  I agree that there is nothing to suggest that the restriction was intended to prevent renewals, and there is a perfectly adequate mechanism in place, through the scheme of restrictions and the management company, for any such required renewals to be achieved without the need to modify the restriction as it applies to one individual property. I am satisfied that the democratic process that has been established is a quite adequate vehicle by which necessary repair and replacements can be effected. The application under ground (a) therefore fails.

Ground (aa)

 

40.        The appellant’s case under this section is simply that as the applicants are prevented from having proper and weathertight windows, and thus a leak free property, reasonable use of the property is impeded. Section (aa) provides:

“(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

(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.”

41.        Mr Langlois said that for an application to succeed on this ground is a strong test.  In determining whether or not the restriction secures a practical benefit to the objectors, it is necessary to assess the purpose of the restriction, rather than the purpose or suitability of the proposed modification. In this case, the benefits are obvious, in enabling effective control over the uniform appearance of the block. To allow a modification in respect of this one unit would also be the ‘thin end of the wedge’, and might lead to other owners seeking similar or other modifications which would lead to the eventual unravelling of the scheme.  The restriction clearly secures a practical benefit which for the reasons outlined is of substantial value or advantage.  He said that it was also for the applicants to prove that money would be adequate compensation but no evidence or argument was raised over this issue. 

42.        In considering an application under this ground, the Tribunal has historically adopted a series of 6 questions – see Re Bass Limited’s Application (1973) 26 P & CR 156:

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?

43.        The first two questions are whether replacement of the windows would constitute a reasonable use and if it would, whether the restriction impedes that use. In principle the ability to replace worn out or defective windows is of course reasonable. The restriction as currently worded is not entirely clear and appears, on the strictest interpretation, to prevent that happening, even if the replacements are visually identical.  It may thus be that the restriction does impede a reasonable use. However, I do not think it would ever have been the intention to prevent replacements, but was to ensure that the appearance of the building remained the same.  Thus it could be interpreted as allowing replacements, but not if they are different.  This is precisely the issue between the parties.  The applicants wish to install units that differ in their profile to the existing windows, but the evidence clearly demonstrates that solutions are available that would solve their problems and would not alter the appearance of the property to the untrained eye.  In the event, it is not necessary for me to reach a concluded view on these questions, as I am satisfied that the other requirements under (aa) are not made out.

44.        The next two questions are whether the ability to prevent the replacement of the windows secures a practical benefit to the objectors, and if so is that benefit of substantial value or advantage to them.  In this regard, it is necessary to consider whether the particular proposed replacement windows would damage the appearance of the building to the extent that the power to prevent their installation constitutes a practical benefit of substantial value or advantage? The answer must of course be yes.  The Visoglide system appears markedly different to the existing units, particularly in respect of the central opening panel, and the restriction as currently worded prevents that from happening. The proposed modification would also enable the applicants to do things, apart from the particular replacements currently proposed, that would harm that power.  It would allow replacement of the other doors and the garage doors and the same problems could arise.  A series of controls were put in place by the original builder in respect of this scheme of development and one of the most important was the ability to prevent unilateral changes occurring that might affect the uniform appearance of the building as a whole.  Any watering down of restriction 11 in respect of one particular property would, as Mr Langlois said, mean that control was lost, and could set a precedent for applications by other property owners in Storm that would become difficult to resist, thus causing cumulative harm.  This would be the thin end of the wedge.

45.        In my view, there can be absolutely no question that this important restriction secures to the other residents practical benefits of substantial value or advantage, and from the evidence those benefits are patently obvious. If the application were allowed, the applicants would be free to install units that are noticeably different in appearance to the existing windows.  That would fly in the face of the intention of the restriction and could, in my view, have a potentially detrimental affect upon value not only of the neighbouring properties but also that of the applicants.  The reasons for the need for uniformity are obvious, and the potential repercussions of a unilateral modification to the restriction that were clearly set out by Mr Langlois mean that the application should not be allowed. The application therefore fails under ground (aa).

46.        As to the two remaining questions, it was not suggested that the proposed user would be against the public interest, and no evidence was adduced as to what, if any, compensation would be appropriate if the application succeeded.

Ground (c)

 

47.        It goes without saying that modification of the restriction to allow windows of a different appearance would undoubtedly injure the persons entitled to the benefit, and the application must also fail, therefore, under ground (c).

48.        Finally, in my judgment, there is nothing to prevent agreement for suitable replacement window units being agreed pursuant to the restriction, rather than the need for a unilateral modification to it.  The objectors have made it perfectly clear that they are happy for the windows to be replaced subject to their being virtually identical in appearance to the existing units, and have said that “in principle” powder coated aluminium framed units might be acceptable.  Indeed, I note that the objectors’ expert said that if he were specifying window units for this property now, that is the option he would go for, but tilt and slide rather than push and slide as wanted by the applicants.  It certainly seemed to me at the hearing that there was potential for an amicable solution in the Smart Imperial system (or something similar). 

49.        The application fails.  The parties are now invited to make submissions on costs; this decision will become final when that issue has been resolved, and not before.

DATED 8 September 2010

 

 

P R Francis FRICS