The following cases are referred to in this decision:
Elliston v Reacher [1908] 2 Ch 374
Reid v Bickerstaff [1909] 2 Ch 305
Re: Dolphin’s Conveyance [1970] Ch 654
Shepherd v Turner [2006] 2 P & CR 28
Re: Bass Limited’s Application (1973) 26 P & CR
156
Re: Snaith and Dolding’s Application (1995) 71 P
& CR 104
Re: GR & AL Developments Ltd’s Application [2009] UKUT 238 (LC) (LC ref: LP/36/2008)
DECISION
Introduction
1.
The applicants in this case, Mr Alan Perkins and Mrs Pauline Perkins,
seek the modification of a restrictive covenant burdening land (registered
under title no. HD 12873) at 87 Peplins Way, Brookmans Park, St Albans, Herts
(the application land) so as to permit the construction of a new detached
private dwelling house and garage within the grounds of that property in
accordance with a planning consent granted by Welwyn Hatfield Borough Council
on 17 December 2009 (ref: S6/2009/2081/FP).
2.
The restriction is contained within a transfer dated 21 March 1955 (“the
1955 transfer”) between Herbert William Sawyer and Leonard Thorpe (Mr
Thorpe being the applicants’ predecessor in title). At the time of the
transfer the land formed part of title no. HD 11303 and, by that transfer:
“THE Purchaser
for himself and his successors in title (but not so as to bind himself
personally after he shall have parted with all interest in the land hereby
transferred) hereby covenants with the Vendor and his successors in title for
the benefit of the Vendor’s adjoining and neighbouring land in Peplins Way
Brookmans Park aforesaid and all and every part thereof being the remainder of
the land comprised in the above mentioned title to observe and perform the
restrictive covenants set out in the Third Schedule hereto
AND the
Purchaser hereby covenants with the Vendor but by way of indemnity only hence
forth to observe and perform the restrictive covenants specified or referred to
in the charges register of the above mentioned title so far as they affect the
land hereby transferred and to keep the Vendor and his estate and effects
indemnified against all actions costs claims and demands in respect thereof
…
THE THIRD
SCHEDULE above referred to
…
(c) Not more than one
dwellinghouse and garage shall be built on the land hereby transferred”
3.
The land which formed title number HD11303 had been acquired by Mr
Sawyer from a Mrs White and others by a transfer dated 25 May 1954 (“the
1954 transfer”). By that transfer:
“THE PURCHASER
for himself and his successors in title (but not so as to bind himself
personally after he shall have parted with all interest in the land hereby
transferred) hereby covenants with the Vendor and his successors in title for
the benefit of the Vendor’s adjoining and neighbouring land in Brookmans Park
aforesaid and all and every part thereof (being the remainder of the land
comprised in the above mentioned title) to observe and perform the restrictive
covenants set out in the Third Schedule hereto
…
THE THIRD
SCHEDULE above referred to
…
(3) Not more than fifty-two houses may be
constructed on the said property…”
4.
The application was made to this Tribunal on 3 March 2010 and the
applicants hand delivered the approved publicity notice, a copy of the
originating application and its attachments and Notice of Objection forms
together with an accompanying letter to 75, 81, 83, 85, 89 and 91 Peplins Way on 4 May 2010. Copies of the publicity notice and letter were hand
delivered to all the remaining properties in Peplins Way that it was considered
could have the benefit of the restrictive covenant, and further copies of the
relevant documentation were all deposited at 35 Bradmore Green, Brookmans Park,
where it was available for inspection during normal business hours.
5.
There were initially 48 objectors, 47 of whom were admitted, but two of those
have since withdrawn. The 47 admitted objectors are listed on the attached Appendix
1.
6.
Mr Andrew Bruce of counsel appeared for the applicants and called Mr
Alan Perkins as a witness of fact, and Mr Ruaraidh Adams-Cairns BSc FRICS MCI
Arb, a director of Savills L&P Ltd of London W1 who gave expert evidence.
Mr Robert Andrew McIver BSc MRICS, one of the objectors, represented all of
those whose objections were maintained, and produced a witness statement. A
further six objectors gave evidence, and a number of others were in attendance
but were not called. I carried out an accompanied inspection of the
application land and surrounding area immediately after the hearing.
The application land and surroundings
7. Brookmans Park is a village lying about 20 miles north of London, between Potters Bar and
Hatfield. Peplins Way is situated to the north-west of Brookmans Park and comprises a broadly U-shaped residential road with access at each end from Bradmore Way, and a spur off it giving on to a small square with central communal gardens.
It is a typical 1950s suburban development of mainly semi-detached two-storey
houses with attached garages and gardens to the front (many of which have been
converted to parking areas), and enclosed private gardens to the rear. The
houses are of brick construction, with colour-washed render to first floor
elevations and several have been extended over the years to provide additional
accommodation.
8. In
addition to the residential properties, the Brookmans Park County Primary School, which has its principal frontage and access onto Bradmore Way, is
located between the two entrances of Peplins Way, and has a pedestrian access
to the rear, where it backs onto Peplins Way.
9. The
application land is located in the north-west corner of the square and, being a
corner plot, has a relatively narrow street frontage but broadens out
substantially to the rear (which backs onto the main East Coast London to
Edinburgh railway line) to give it the largest plot of all the Peplins Way
properties (1,280 sq m). 87 Peplins Way is an unextended semi-detached 3
bedroom house that faces east/west and formerly had an attached garage that has
been demolished since it was acquired by the applicants. The adjoining house, 85 Peplins Way (Mr & Mrs Fagan) is immediately to the south and also backs onto the
railway line. 89 Peplins Way (Miss Benton) is adjacent to the north east and,
again being in the corner of the square, has a larger than average, but smaller
plot than no.87 – 1,002 sq m. That property backs onto Peplins Woods, an area
of protected woodland to the north.
10.
The applicants, who do not personally reside at 87 Peplins Way, propose
to construct a detached two-storey 4 bedroom house with attached single garage
on the wide area of the rear garden between nos. 87 and 89. It will have a
cross-over drive shared with no. 87 and will have a total plot area of 862 sq
m, no. 87 being left with a plot of 418 sq m.
11.
The application land is one of the 52 plots originally developed by a Mr
Sawyer on the part of Peplins Way that originally formed the land in title
number HD 11303. Since they were built, one extra property, a detached house
and garage, has been constructed on a plot of land (that was not a part of
title no. HD 11303 and formerly belonged to the railway company) that lies
between 63 and 65 Peplins Way, pursuant to planning consent obtained in 2006.
Preliminary Issue
12.
Approximately one week before the commencement of the hearing, Mr Bruce
submitted a skeleton argument to the Tribunal (which was copied to at least
some of the objectors) in which he sought, as a preliminary issue, to argue
that of the 47 admitted objectors, only 27 had the benefit of the restriction
and that, importantly, neither of the two immediately adjacent properties, nos.
85 and 89, had the benefit. Further, any attempt that the objectors might
make to assert that a scheme of development (building scheme) exists would be
roundly refuted. I consider and determine these issues before
turning to the grounds upon which the application was made, and the parties’
arguments on them.
13.
It was submitted that, in respect of the 1955 transfer, under which this
application had been made, the covenant was given by Mr Thorpe for himself and
his successors in title. The applicants are his successors in title and are
thus prima facie bound by it. The covenant was expressed to be for the
benefit of Mr Sawyer’s adjoining and neighbouring land, being the remainder of
that held under title HD 11303. As such, only land owned by Mr Sawyer at the
date of the 1955 transfer to Mr Thorpe was capable of benefiting from the
covenant. Any plots that had previously formed part of title HD 11303 but
which had been sold by Mr Sawyer prior to 21 March 1955 do not, on the
covenant’s proper construction, have the benefit. A schedule showing the
dates of transfer of all the relevant properties was provided. Mr Bruce said
that, as a broad guide, if the title number was less than 12873, the property
would have been transferred and registered prior to 87 Peplins Way.
14.
The only submission from the objectors (who were not legally
represented) on this issue came from Mrs Fagan of 85 Peplins Way. She said
that as the transfer of her property was dated the same day as that relating to
the applicants’ property, she thought that even if the Tribunal accepted Mr
Bruce’s arguments, the benefit must extend to hers. In response to a question
from me, she confirmed that she was unable to provide evidence in respect of
what time of day completion of her transfer took place, or whether that was
before or after the applicants’ transfer.
15.
Mr Bruce went on to submit that that the references in the application
and the objections to “52 houses” derive from the restrictions entered into
pursuant to the 1954 transfer. That was the transfer by which Mr Sawyer
acquired from Mrs White and others the land registered under title HD 11303.
It was pointed out that the covenants under that transfer were made for the
benefit of the Vendor’s (Mrs White’s) adjoining and neighbouring land in Brookmans Park. It was not, therefore, made for the benefit of any of the land comprised
within title HD 11303 as the whole of that land had been acquired by Mr
Sawyer. None of the objectors claim to be successors in title to any of Mrs
White’s land (which adjoined that purchased by Mr Sawyer), and as such none of
them can rely on the covenants in the 1954 transfer and, in any event, it is
not the 1954 covenants that are the subject of this application.
16.
Turning to whether it might be argued that a scheme of development
(commonly known as a building scheme) exists, Mr Bruce submitted that clearly it
did not. A building scheme is a comprehensive system of covenants which the
initial developer (in this case Mr Sawyer) might establish and which would have
been designed to be enforceable by and against all the owners from time to time
of land within Brookmans Park. Such a scheme would have been a way round the
before and after [transfer date] problem referred to above. An example was
given (as set out in Francis ‘Restrictive Covenants on Freehold Land’ (3rd Ed) at 8.61 and at 8.62 it said:
“Schemes of development are designed to
avoid these problems and difficulties of enforcement. Where a scheme exists,
all owners of plots within the scheme can enforce and be enforced against,
irrespective of the order in which the common vendor sold those plots and
irrespective of the formalities regarding annexation and assignment of the
benefit of covenants.”
17.
However, Mr Bruce submitted, such schemes were rare. He referred to Elliston
v Reacher [1908] 2 CH 374 where Parker J, at 384, identified four matters
that were required to prove that a scheme was established:
“(1) Both the claimant and
the defendant derive title from a common vendor.
(2) Prior to selling the land to
which the claimant and the defendant are entitled, the common vendor laid out
the estate for sale in lots, subject to restrictions intended to be imposed on
all the lots. Those restrictions, although they may vary in details as to
particular lots, are consistent and consistent only with a scheme of
development.
(3) The restrictions are intended by
the common vendor to be and are for the benefit of all the lots intended to be
sold, whether or not they are also intended to be and are for the benefit of
other land retained by the common vendor.
(4) Both the claimant and defendant
(or their predecessors in title) purchased their lots from the common vendor on
the footing that the restrictions subject to which the purchases were made were
to enure for the benefit of the other lots included in the general scheme;
whether or not they were to enure for the benefit of other lands retained by
the vendor.”
The objectors would need to, but cannot, prove
(3) and (4) to establish a scheme here.
18.
Mr Bruce also referred to Re Dolphin’s Conveyance [1970] Ch 654
where it was stated at 661:
“It is trite
law that if you have conveyances of the several parts of an estate all
containing the same or similar restrictive covenants with the vendor, that is
not enough to impute an intention on the part of that vendor that the
restrictions should be for the common benefit of the vendor and of the several
purchasers inter se: for it is at least as likely that he imposed them for the
benefit of himself and of the unsold part of the estate alone.”
Here, it was submitted that there is no
evidence that Mr Sawyer imposed the restrictive covenant in the 1955 transfer
for the common benefit of all the purchasers. There is no reference in the
transfer to “The Brookmans Park Estate” or similar, no description anywhere of
the extent of any such estate and no reference to other purchasers having
rights against Mr Thorpe. There could therefore be no imputation that Mr
Sawyer intended to create a scheme of development simply because the terms of
the 1955 transfer are common to other transfers.
19.
Buckley J said in Reid v Bickerstaff [1909] 2 Ch 305 at 323:
“There can be
no building scheme unless … the nature and particulars of the scheme shall be
sufficiently disclosed for the purchaser to have been informed that his
restrictive covenants are imposed upon him for the benefit of other purchasers
of plots within that defined estate with the reciprocal advantage that he shall
as against such other purchaser be entitled to the benefit of such restrictive
covenants as are in turn to be imposed upon them.”
Mr Bruce submitted that the proper analysis is
that Mr Sawyer was restricted to building 52 houses on the land he had acquired
under the 1954 transfer. In order to ensure that the he alone was able to
build the 52 permitted houses, he placed a restriction on each plot to prevent
the building of more than one dwelling. As appears from the terms of the 1955
transfer, Mr Sawyer had no intention of creating a building scheme and by the
indemnity covenant he merely sought to ensure that once he had sold off all the
land, he was personally protected against any claims under the 1954 transfer.
20.
The burden of proof, Mr Bruce submitted, was on the objectors to prove
that, for all 45 of those remaining to have the benefit of the restrictive
covenant, a scheme of development must exist. It was the applicants’ case that
they could not, for the legal reasoning he had set out, and thus only those who
purchased their plots after the date of the 1955 transfer could claim the
benefit. In particular, he said, only 5 of the properties “on the square” in
the immediate vicinity of the application land have the benefit.
21.
Mr McIver said that the same covenants were placed upon all the
properties and in his view, therefore, the Peplins Way development should be
taken as a building scheme. In any event, he said, that could apply to the whole
of Brookmans Park. He said he had a copy of a leaflet dated 1926 promoting the
development of Brookmans Park (as a village) to potential London commuters, and
it could be argued that the whole area was a scheme of development.
Conclusions – preliminary issue
22.
Relating to the dates of the various transfers, there can be no
question, in my judgment, that Mr Bruce is correct, and any properties that
were transferred prior to 21 March 1955 do not have the benefit unless a
building scheme exists. There is, however, the interesting question of whether
Mr & Mrs Fagan’s property, 85 Peplins Way, has the benefit because the
transfer date is said to be the same. This could potentially be important as,
being immediately adjacent to the property from which the application land is
intended to be hived, some of the effects (along with those to no. 89) are
likely to be the greatest. Although Mrs Fagan offered no evidence to prove
conclusively that her transfer occurred after the Perkins’s, I note that the
title number relating to the transfer of no.85 is HD 12884, which is
sequentially after the title relating to the applicants’ property (HD 12873).
Further, on the official Land Registry Schedule relating to title HD 11303
[applicants’ bundle p.46], the date of registration of the transfer of 85 Peplins Way is given as 14 May 1955, and registration of the applicants’ transfer was 13
May 1955. On the balance of probabilities, therefore, I am satisfied that the
transfer of 85 Peplins Way was after that relating to the application land, and
thus Mr & Mrs Fagan do have the benefit of the restriction - whether or
not a building scheme (to which I now turn) exists.
23.
In respect of the arguments relating to whether or not a scheme of
development could be deemed to exist, it appears to have gone unnoticed that
paragraph 13 of the Third Schedule to the 1954 transfer (applicants’ bundle
p52) by which Mr Sawyer purchased the land comprising title no. HD 11303 says:
“13. In
this Schedule where the context so admits the expression “the Purchaser”
includes the persons deriving title under him and the expression “the Vendor”
includes his successors in title the owners for the time being of the Brookmans
Park Estate remaining unsold PROVIDED ALWAYS that there is reserved to the
Vendors the right to release or vary any restrictions affecting any other parts
of the Brookmans Park Estate and a provision that nothing therein contained
shall impose any restriction on the manner in which the Vendors shall sell
lease or otherwise deal with their remaining portions of the said Estate or
be deemed to create a building scheme in relation thereto.” [my emphasis].
That restriction is also recited in title HD
12873 under which this application is made.
24. It is clear, therefore,
that, on the sale of the land to the developer, Mr Sawyer, it was the specific
intention that a building scheme should NOT be created. He was bound by that
restriction, and if he had created a building scheme, he would have been in
breach. The four matters to which Mr Bruce referred in Ellison do not
therefore need to be considered in this instance, nor the reference to Re
Dolphin’s Conveyance, Reid and Bickerstaff or any of the other cases to
which he referred. However, if it had not been for paragraph 13 referred
to above, I would nevertheless have been persuaded by Mr Bruce’s submissions,
and with no opposing arguments from the objectors I conclude that a building
scheme did not, and does not, exist.
25.
The 28 objectors who I have thus determined are entitled to the benefit
of the restriction are set out in Appendix 2 attached.
Applicants’ case
26.
The application was made under grounds 84(1)(aa) and (c) which provides:
“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 -
(aa) that
(in a case falling within subsection (1A) below) the continued existence [of
the covenant] would impede some reasonable user of the land for public or
private purposes or, as the case may be, would unless modified impede such
user;
(c) that
the proposed discharge or modification will not injure the persons entitled to
the benefit of the restriction.”
Subsection (1A)
provides:
“(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 ad-vantage 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”.
27. Mr Perkins said that he
and his wife bought the application land in July 2007 having identified it as
having potential for development “in accordance with local and national housing
and planning policies.” Planning permission was obtained on 17 December 2009 for
a new detached house that would contain 4 bedrooms, 3 reception rooms, and an
attached single garage together with off-road parking for at least 8 cars. In
Mr Perkins’ view the house would be entirely in keeping with those around it
and, with it having a larger than average (for Peplins Way) plot at 862 sq m,
there would be ample room for contractors’ vehicles to be housed on site during
the construction process and for heavy goods delivery vehicles to enter, make
their deliveries and turn on the site to leave in a forwards direction rather
than needing to use the roadway. Indeed, he said, the only really large
vehicle that was likely to need site access once the shell of the property was
up, would be for the delivery of the pre-formed roof trusses if they were not
to be individually constructed on site.
28.
As to what no. 87 would be left with, Mr Perkins said that the fence
that had already been constructed between 87 and the proposed new plot was to
be re-aligned next to the existing house to allow parking for an additional
vehicle (to make a total of 3 on top of the two that were formed within the
front garden) and the erection, if required, of a garage. No. 87 would still
have a plot size of 418 sq m which would be larger than the average for the estate
which was 360 sq m, and consistent with nos. 89, 99 and 101.
29.
In terms of what effect the proposed development might have on what
would be the three nearest properties, nos. 85, 87 and 89 Peplins Way, Mr
Perkins said firstly that, of course, no. 87 was not an objector, but in his report
to committee for its meeting on 26 November 2009 the planning officer had
discussed the potential affect, had concluded that although there would be some
loss of privacy for no. 87, the proposed development “will not have a
significant impact on the residential amenity of nos. 85 and 89”. However, a
planning condition to ensure that obscured glass was used in the first floor
front facing landing and bathroom windows would be reasonable.
30.
As to the objectors concerns over access, traffic generation, the
adequacy or otherwise of on-site parking , overdevelopment (site dimensions),
or impact on other properties, Mr Perkins quoted from the planning officer’s
conclusions which read:
“9.1 The
proposed development is considered to be an acceptable form of development
which would not harm the existing character and context of the area. The plot
size is not dissimilar to others in the area and the development would not
result in a cramped site which appears overdeveloped. The design of the
proposed materials and design of the dwelling would also draw from the
character of the dwellings in Peplins Way.
9.2 No
objections have been raised by Highways in regards to the use of the shared
cross-over onto Peplins Way and so the proposed access arrangements are
considered to be acceptable. The proposed development would meet the council’s
requirements for parking.
9.3 It
is considered that there would be no detrimental impact to the amenity of the
neighbouring properties.
9.4 Although
this site is impacted by the close proximity from the adjoining railway line,
the applicant has adequately demonstrated the dwelling has been designed to
overcome this issue and no objections have been raised by the Council’s
Environmental Health Department.”
Mr Perkins said that not only would there be
no detriment to the neighbouring properties, but the new house would, if
anything, act as a sound barrier, thus reducing the affect of railway noise on
no. 89 and would enhance the value of that property. He referred to the
report from Premier Measurements, Consulting Acoustic Engineers, which
graphically demonstrated the sound deadening effects that the construction of
the new property would have on both nos. 85 and 89 (and, by implication, no.
87).
31.
Regarding traffic, he produced a report that he had commissioned from Savell
Bird & Axon, Transport Planning Specialists, as part of the planning
application process. That had concluded that the TRICS database used by
Hertfordshire County Council relevant to privately owned houses indicated an
average trip rate of 6.5 vehicle movements per day which would not give rise to
any measurable impact on neighbouring occupiers. The concerns that had been
expressed by many of the objectors over the additional traffic that would be
generated, particularly as Peplins Way was already seriously affected by the
“school run” in mornings and afternoons, were, Mr Perkins said, unfounded.
The proposed property was in the far corner of the square which was off the
“informal” one way route around the main part of Peplins Way that was used for
dropping off and collecting children from the school.
32.
Looking specifically at the two properties (other than no. 87) that
could conceivably be affected by the proposed development, Mr Perkins said that
the rear of no. 85 (the Fagans’ house) had an easterly aspect to the rear
towards the railway line, and was separated from the proposed plot by no. 87.
There were mature trees and bushes along the boundary with no. 87, so the new
property would not be noticeably visible from the ground floor rooms or the
garden. At first floor there is one bedroom window looking towards the rear
(the other being a bathroom). He produced a plan that indicated that, at a 45
degree angle of sight (the measure he thought commonly used by planning
authorities in determining affect upon amenity) it would just be possible to
see the south eastern corner of the new house – which would be some 30 metres
away. For the current view of Peplins Woods, the angle was between 57 and 67
degrees which could only be described as peripheral. In his view therefore,
there would be no measurable loss of amenity and, as he had said, there would
be some shielding from the noise of the trains. It should also be noted, he said,
that it appeared this property did not have the benefit of the covenant.
33.
Mr Perkins said that, as far as no. 89 (Ms Benton’s property) was
concerned, that is at a 90 degree angle to no. 87 and the principal rear rooms
have northerly views towards Peplins Wood. There are also mature trees and
bushes along the existing boundary with no. 87 (which would become the
north-western boundary of the new plot) which would shield any impact on views
from the rear garden or the side of the house – where there were no windows
serving habitable rooms. The only windows from which the new house could be
seen were the landing/staircase window, and the half-glazed side door from the
kitchen. The new house would be 25 metres away from no. 89 at its closest
point and again, he said, he thought there would be no detrimental affects.
34.
There had been concerns expressed about the affect that the additional
dwelling could have on the sewerage system. Mr Perkins said that he had
checked the drain and it appeared to be of adequate capacity and in good
condition. In fact, the proposed plot was the last on the run where it serves
the estate, before joining with the main sewer by or beyond the railway line.
In any event, he said, the water authority had been consulted about the
planning application, and had expressed no concerns. Regarding the comments
made by a number of the objectors about “garden grabbing”, and the coalition
government’s stance on this issue, Mr Perkins said that through his profession
as a chartered surveyor, he was regularly involved in planning matters, and the
policy to which they were referring: PPS 3. This was national policy guidance
that set out a sequential test and that despite that test seeking a maximum of
30 dwellings per hectare (dph), it was Welwyn Hatfield’s policy to adopt a
maximum of 50 dph. It should also be noted that the whole of the area was in
the Green Belt, and Welwyn were therefore constrained to permit development
only within strong and robust policies.
35.
In summary, Mr Perkins said that he thought the proposals were
reasonable, there would be no loss of amenity, or value, to any of the
objectors’ properties and that no injury would be caused. In his view,
therefore, the grounds had been made out and the modification should be allowed.
36.
In response to questions about parking posed by Mr McIver for the
objectors, he said the amount of on-site parking available to the proposed
house far exceeded the planning authority’s requirements, and with the driveway
being 3.2 metres wide, there would be sufficient room for vehicles to pass each
other without getting blocked in. He was adamant that objectors’ fears about
contractors’ vehicles blocking the road and damaging verges during the
construction period were unfounded.
37.
Mr Adams-Cairns is head of Litigation support for Savills L&P, and
has 30 years valuation experience since qualifying as a chartered surveyor.
He is a founding member of the Expert Witness Institute and specialises in
expert witness work. He said that he had been instructed to give his
independent professional opinion as to diminution in value (if any) that might
occur to any of the properties that have the benefit of the restrictive
covenant if the modification were to be allowed, and the new house was to be
built. Having described the application land, its location and surroundings,
and set out details of the planning consent that the applicants have obtained, he
concluded that (excluding the applicants’ own property at no. 87), the only
houses that could conceivably claim diminution in value were nos. 85 and 89
Peplins Way.
38.
There was no doubt that the new dwelling would be visible, obliquely,
from the rear bedroom of no.85, but this would be at some distance from the
property and in Mr Adams-Cairns’ opinion this would be of little if any
consequence. Similarly, there would be direct views from the kitchen doorway
and the landing/staircase windows of no. 89 into the new plot and towards the
house, but again, he said that with the new house being 25 metres away from no.
89, this was a significant distance in the context of residential
development. The upstairs windows to the (south facing) front of the new
house will overlook, to a limited extent, part of the rear garden of no. 85 but
again, this intrusion, he said, needs to be kept in context in terms of the
significant distance between the properties and the fact that trees and bushes
along the boundary between nos. 85 and 87 will provide some screening. The
planning condition in terms of obscured glass also needed to be taken into
account. None of the first floor windows of the new house will look directly
onto no. 89, but there may be some visual intrusion into the rear garden in
that it will be overlooked by the window of bedroom 3. However, use of the
bedrooms and gardens, he said, were unlikely to coincide under normal
circumstances. Again there are mature trees and bushes that would lessen any
impact. In Mr Adams-Cairns’ view, any limited visual intrusion to either of
these properties would be more than outweighed by the sound deadening effects
from the railway (the line being some 2.5 metres above the properties’ level)
that the construction of the new house would provide. The report from Premier
Measurements shows this to be the case. The new house would also make the
trains less visible especially in the winter when the trees are defoliated.
39.
The new access drive would be immediately adjacent to the boundary of
no. 89, but as was confirmed in the traffic report that had been commissioned
by the applicants, any affect would, he thought, be extremely minimal. Mr
Adams-Cairns concluded that the benefits of the shielding effect of the new
house more than outweighed any minor negative effect that the visual intrusion
might have. He also referred to the offer that the applicants had made to the
owner of no.89 to acquire from her a small portion of her rear garden (to
slightly extend the available garden area to the new house) in the sum of
£10,000. Although Ms Benton had chosen to ignore this offer, which was in his
view about £9,000 more than the land was worth, this underlying value to the
neighbour (known as a special purchaser) runs with the land and thus further
outweighs any negative impact that the new house might be deemed to have.
40.
As to disturbance during construction works, Mr Adams-Cairns thought
there would be nothing significant in terms of no. 85, but as far as no. 89 was
concerned the would, for a period of up to 12 months, be noise dust and
disturbance. He said that in his professional opinion, this might diminish
the open market rental value of the property by about 15% for that length of
time, say £2,000 but this was a de-minimis amount that was, again, outweighed
by the value benefits of the development.
41.
Mr Adams-Cairns said that, in terms of the written statements of the
objectors from nos. 85 and 89, firstly he did not agree with Mrs Fagan that
compensation in the region of £3,000 to £5,000 should be paid in respect of her
property. As to Ms Benton’s view that her house would be devalued and the
development would also set a precedent for other garden-grabbing in the area,
he said his evidence showed there was no diminution in value and the layout of
the estate was such that there was little if any further opportunity for
residential development. Regarding all the other objectors, he said that in
his opinion they were all too remote for the values of their properties to be
affected in any material way.
42.
Mr Bruce submitted that many of the objectors had expressed concerns
about the disturbance that would be caused during construction works, but in
the light of Shepherd v Turner [2006] 2 P & CR 28, in the absence of
special facts the Tribunal should ignore that aspect. Carnwath LJ said, at
58:
“In my view, account must be taken of the
policy behind para (aa) in the amended statute. The general purpose is to
facilitate the development and use of the land in the public interest, having
regard to the development plan and the pattern of permissions in the area.
The section seeks to provide a fair balance between the needs of redevelopment
in the area, public and private, and the protection of private contractual
rights. ‘Reasonable user’ in this context seems to me to refer naturally to a
long term use of land, rather than the process of transition to such use. The
primary consideration, therefore, is the value of the covenant in providing
protection from the effects of the ultimate use, rather than from the
short-term disturbance which is inherent in any short term construction
project. There may, however, be something in the form of the particular
covenant, or in the facts of the particular case, which justifies giving
special weight to this factor.”
43.
The usual approach to applications based upon section 84(1)(aa), Mr
Bruce said, was to consider the 7 questions referred to in Re Bass’s
Application (1973) 26 P & CR 156:
1. Is the proposed user reasonable?
2. Do the covenants impede that user?
3. Does impeding the proposed use secure to the
objectors practical benefits?
4. If so, are those benefits of substantial value or
advantage?
5. Is impeding the proposed user contrary to the
public interest?
6. If the answer to (4) is no, would money be
adequate compensation?
7. If the answer to (5) is yes, would money be
adequate compensation.
There could be no doubt that the proposed use,
as a residential dwelling house, is reasonable. Although it was acknowledged
that the application is for the removal of a legal right and is governed by an
entirely different jurisdiction to that under which planning applications are
determined, it was stated in Re Bass that “planning permissions are very
persuasive in this connection.” It was submitted that the opinions of the
local authority’s planning director, in recommending the grant of planning
permission, should persuade the Tribunal that the objectors’ suggestions that
the proposed user was unreasonable could not be substantiated. Further, the
references to the recent planning policy changes set out in PPS 3 and
“garden-grabbing” were misconceived. There was no evidence that the approved
development does not continue to comply both with PPS 3 and with all the other
local planning policies.
44.
It was accepted that the covenant does impede the proposed user, and
that in doing so it arguably secures some practical benefit to the objectors in
that it preserves a level of peace and quiet and restricts the growth of
traffic by preventing an additional family moving into (the covenanted) part of
Peplins Way. However, Mr Bruce said that if, as was argued, neither nos. 85
or 89 have the benefit of the restriction, it was not accepted that impeding
the development prevents the gardens of other properties that do have the
benefit being overlooked. It was only those two properties that might conceivably
suffer. Also, preventing the construction of the proposed new driveway does
not create a practical benefit to anyone, even the adjacent no. 89 which is not
benefited.
45.
It was argued that any benefits that were preserved were not of substantial
value or advantage. Substantial means ‘considerable’ or ‘big’ and, as Mr
Adams-Cairns had said, not only was there no diminution in value to any of the
benefited properties, but, if anything no. 89 (which was not benefited anyway)
might indeed be increased in value. There would be no significant impact
upon the character of the area, the new house would be in keeping with the
locality and its garden, and the reduced garden of no. 87, would still be in
line with average plot dimensions on Peplins Way. All the evidence that had
been produced by the applicants indicated that there none of the benefits
secured by the covenant are of substantial value or advantage, and for these
reasons, monetary compensation would be an adequate remedy. However, as Mr Adams-Cairns
had shown, none of the properties, whether benefited or not, would suffer any
diminution of value. It was accepted that impeding the proposed user is not
contrary to the public interest, and in that regard question (7) in Re Bass does
not apply..
46.
Mr Bruce submitted that, in the alternative, the applicants rely on
section 84(1)(c) which requires them to establish that “the proposed discharge
or modification will not injure the persons entitled to the benefit of the
restriction.” All of the evidence relating to ground (aa) proved conclusively
that no injury would be caused.
Objectors’ case
47. Of the 47 objectors
whose notices of intention to object were admitted, all but 14 provided written
representations or reasons. Many of the submissions were in similar format
and raised the same issues. It would be apposite, in my view, to summarise
the principal points of concern and then to consider the particular points
raised by those who appeared.
48.
There was general concern about an increase in density (Julier and
others), overdevelopment (Hibberd), the effect upon the aesthetic quality of
the existing development (Cooke), ambience (Julier), the need for protection of
amenity and value (Ball) and to preserve the style and character of the area
(Clifton-Everest). The roads were very narrow (Williams/Kenneally and Bennett)
and there were already considerable problems during the school run with
additional traffic and general parking chaos at those times (Partington and
others). This would be exacerbated by the creation of an additional family
house, and there could be increased problems over access for emergency vehicles
(Rubra and others). Mr Jacobs said that the photographs presented with Mr
Perkins’ witness statement showing no traffic and very few parked vehicles were
extremely misleading and unrepresentative.
49.
Modification of the restriction would create a precedent (thin end of
the wedge) and would open the door to further applications (virtually all
objectors). The applicants already owned land to the rear of no. 46 but so
far had failed to obtain planning consent. If and when they do, allowing this
modification would make it difficult to resist the application that the Perkins
would be required to make (McIver and others). Mr Pavlou was particularly
concerned about this aspect as he lived next door at no. 48. There were also
opportunities for infill plots between nos. 99/101 and at no. 111 (Mc Iver),
and the potential for garden-grabbing was a general concern (Boscott and many
others).
50.
The proposed development on the application land would be visually
intrusive (Sherlock) and there was concern over whether the infrastructure
(drainage) could cope (Jacobs). Mrs Cottle (no. 83) said that the proposed
property did not follow the building line, and its positioning would overlook
her back garden along with those to nos. 87, 85 and 81. Mr & Mrs Bennett
referred to Re Snaith and Dolding’s Application (1995) 71 P & CR 104
where it was held that the opening of a breach in a carefully maintained and
successful scheme of development could deprive the other house owners of a
substantial practical benefit, namely the assurance of the integrity of the
building scheme [although in this case, as has been determined, there is not a
building scheme].
51.
Many of the objectors were particularly concerned about the disturbance
and noise that would occur whilst the property was being built, and access for
large vehicles would be difficult, if not impossible bearing in mind the number
of cars that were usually parked in the street. Although most of the houses
had on-site parking for owners’ own vehicles, in addition to the school run
problems, Peplins Way was regularly used for parking by commuters using the
nearby Brookmans Park station. Ms Templey said that any reliance that the
applicants may place on the fact that one new property had already been built
between nos. 63 and 65 should be ignored as that was built on a vacant plot,
conforms with the building line, and was not subject to the restriction that
applies to the objectors’ properties. The history there, she said, was
entirely different.
52.
Mr McIver, who appeared, confirmed that he had been asked to speak on
behalf of all the objectors, and said in his witness statement that none of the
grounds under which the application had been made were made out in this case.
He said that the applicants have relied heavily upon the opinions of the
planning officer, and they are not relevant to the restriction. The said
modification would clearly be contrary to the public interest in that it could
well lead to the devaluation of a number, if not all, the affected
properties. The covenant, he said, is in place for the benefit of all the
original 52 properties that enjoy its benefit, and is an effective tool for
protecting the amenity and character of the estate. The existence of the
covenant adds value to the objectors’ properties and provides them with
reassurance against future development. Any modification would adversely
affect beneficiaries’ quality of life.
53.
He said that the application was also made under ground (c), and there
was no question that all of the benefited properties would be injured,
especially those immediately adjacent, and would be entitled to compensation if
the modification was allowed. Mr McIver then set out in some detail the
concerns that had been expressed by the objectors (and summarised above) and
concluded that the case had been made out to prevent the modification from
being granted.
54.
In cross-examination, he said he accepted Mr Adams-Cairns’ professional
opinion that the restriction does not add monetary value to the benefited
properties. Asked about the concerns over increased density, he said that the
original developer would have erected another house on the application land if
he had thought it possible to do so. As to the thin end of the wedge argument,
he said that there was an opportunity to put another property in the corner
between nos. 99 and 101, but accepted that those properties had been
substantially extended, and that without demolishing those extensions, it would
be impossible to gain access, and that the plots of those two houses were very
much smaller.
55.
Mr Gubbins of no. 91, who was called, had said that the proposed
backland development would stand out like a sore thumb. The restriction was,
he said, now more relevant than ever to prevent overdevelopment. He also
referred to concerns about precedent, garden-grabbing, additional traffic and
potential parking problems at no. 87 by having to share a “cross-over” drive
with the new property (although accepted that did not affect his property). Additional
parking in the street was also likely despite what the applicants had said
about extensive on-site parking at the proposed new house, and that, as it was,
refuse lorries already have considerable difficulty negotiating their way past
parked cars along the narrow street.
56.
Mr Gubbins said that he and his wife had owned their property since
new in 1955, and enjoyed the open aspect over the green to the front, over
farmland and towards Peplins Wood to the rear. They had been made aware of
the restriction when they purchased the house, their solicitor stressing that
it would help to maintain the value of the property by preventing additional
development. However, he acknowledged in cross-examination that it was not the
restriction in his own transfer that was in question, but that which related to
no. 87, and that his solicitor had not said that his neighbours could also not
build extra properties on their land. Mr Gubbins said that he thought he
would be able to see the new house from one of his rear bedroom windows, but
accepted that there were many trees and shrubs between his house and the
application land. However, he said he could see the trains on the line behind
the application site in the winter time.
57.
Mr Cooke of no. 38 Peplins Way was called. He said that the fact that
95% of those who were originally considered to have the right to object had
done so showed the strength of feeling in the area. He had always been of the
view the covenant extended to all 52 properties. He said that his house was
directly opposite the new one that had been built at 63a, and whilst it was
accepted that that was built on an infill plot, on land that did not form part
of the original land sale to Mr Sawyer, he said it had created additional
parking problems. These would be further exacerbated by the applicants’
proposals.
58.
Mr Lowden of no. 83 was called. He said that his particular concerns
were over parking in what is an extremely narrow road. This was not just during
the school run, but with commuter parking as well, the problems occurred
throughout the day. Any potential for additional traffic and, possibly, on
street parking (by visitors) was therefore to be avoided. Access to the site
for contractors’ vehicles would be extremely difficult. In answer to a
question from Mr Bruce, Mr Lowden said that although he could not see Peplins
Wood from his house, he would be able to see the new house from his kitchen and
bathroom.
59.
Mrs Fagan (no. 85) was called, and said that she had already suffered
some disturbance when the applicants’ garage at no. 87 was demolished. The
contractors had encroached upon her land, and she said she had obtained an
apology from them. The situation, it was anticipated, would be very much worse
when the new house was being built. She was also concerned that the current
outlook that her family enjoyed from the back bedroom and particularly the rear
garden to the side towards Peplins Wood would be completely obliterated.
Also, one of the bedrooms of the new house would directly overlook their
garden. She did not accept the argument that was put to her that the fact that
the house would be 30 metres from her boundary would diminish the problem. She
said it would be nearer than the wood that was clearly visible and a very
pleasant outlook, and disagreed with the planning officer’s comment about
separation distances.
60.
Ms Benton (no. 89) appeared and, in response to Mr Adams-Cairns
suggestion that the new house would shield noise from the passing trains, said
that she had lived there for 56 years, and did not notice them. She said she
would clearly be able to see the new house from her kitchen door, and from the
landing/staircase window. She also said that she had been harassed by the
applicants in respect of their offer to replace part of her fence, and to
purchase a proportion of her land. She said she had not responded as, to do
so, might imply that she acquiesced with the proposals, which she did not.
61.
Dr Julier, who had bought no. 54 in 2010 appeared and re-iterated her
concerns that a precedent would be set.
Conclusions
62.
In terms of the siting of the proposed new dwelling, and the question of
effects upon visual amenity and overlooking, the issues in this case bear
remarkable similarities to those that were considered by me in Re GR &
AL Developments Ltd’s Application [2009] UKUT 238 (LC) (LC ref:
LP/36/2008), although in that instance there was a building scheme in existence.
In that case the applicant wished to erect two additional houses, but the
concerns relating to overlooking and visual intrusion only manifested
themselves in respect of the proposed siting of one of them. The decision to
refuse the application turned on the issue of overlooking and what was deemed
to be a considerable invasion of privacy. In respect of all the other
arguments that had been advanced, I concluded that the proposals would have no
material effect. The same, to some extent, goes for this application. It is
the question of visual intrusion and loss of privacy that appear to me to be
powerful objections, although, as will be seen, I have even greater concerns
regarding the difficulties that will undoubtedly occur during the construction
period.
63.
Following the sequence of questions in Re Bass, despite the well
marshalled arguments of the objectors (those of whose representations I can
take into account in the light of my earlier conclusions), I am satisfied that the
proposed development is a reasonable use of the application land, being a new
residential unit in an already developed residential area, and the fact that
planning permission has been obtained is persuasive in that regard. The
existence of the covenant clearly impedes that user.
64.
Turning to the practical benefits, in considering firstly the concerns
about increased density and overdevelopment, I take into account the fact that
the application land has, by some margin, the largest plot of any of the 52
originally developed by Mr Sawyer on Peplins Way, and accept the applicants’
arguments that, if and when the new house is built, neither it nor no. 87’s
remaining plot will be out of line with average plot sizes as they currently
exist. As to fears that the floodgates will be opened for further development
in the vicinity, I think the objectors’ need not be too worried. Whilst it is
correct that if the applicants’ do eventually succeed in obtaining planning
permission for a unit on the land behind no. 46 that they also own, an
application to this Tribunal may have to be made (dependent, of course upon the
particular circumstances that apply there, and about which I heard no evidence),
it seems to me that that is the only other plot that might realistically hold
potential for additional development. Although it is arguable that it may
just be physically possible to squeeze one additional plot in behind no. 101,
the fact that substantial extensions have been constructed to the side of both
nos. 101 and 99 means access would be impossible without removing them. The
need to do that would bring into serious question the economic viability of
such a proposal. I do not think that there is any opportunity for a unit to
be built behind no. 111 unless a portion of the rear garden of no. 109 is also
included. Regarding the one other new property that has been built, at no.
63a, it is accepted that the circumstances there were very different, in that
the land upon which it was built (and which did not form part of the original
title HD 11303), was a vacant plot with direct road frontage.
65.
I also do not think that, by the provision of one additional residential
unit, there will be any detrimental affect upon the aesthetic quality, ambience
or amenity of the area in general or that the overall style and character will
be adversely affected. Once constructed, I am satisfied that the limited
amount of additional vehicular traffic that will be created by the occupation
of the new house will not cause any material increase in the difficulties that
the residents currently experience, and accept the applicants’ evidence in this
regard. No highways concerns were expressed in the planning officer’s report
to committee, and in my view another 6.5 vehicle movements per day would be
likely to pass unnoticed by all but, perhaps, Ms Benton who, as it transpires,
does not have the benefit of the restriction.
66.
Considerable apprehension was expressed by Mr Rubra (no. 81), Mr Lowdon
& Mrs Cottle (no. 83) and Mr & Mrs Fagan (no. 85) regarding potential
visual intrusion and overlooking from the new property as it will directly face
their rear gardens. Mrs Fagan said that she thought her property might be
devalued by £3,000 to £5,000, but Mr Adams-Cairns did not agree. The
applicants argued that there was only one first floor window in the proposed
house (bedroom 4) that would overlook those gardens, the other two being
bathroom and landing windows which would both have obscured glazing; that they
were far enough away to be of little concern, and, in any event, occupation or
use of bedrooms would not normally coincide with garden use. They also said
that the location of the new house would be at an extremely obscure angle from
Mrs Fagan’s 1st floor rear bedroom window. Whilst I agree with that
latter point, and one does need to be very close to the window to be able to
currently see Peplins Woods (at an angle of 57 to 67 degrees according to Mr
Perkins’s plan), the new house will be very much closer. Mr Perkins said
that, at 30 metres away from no. 85, that was a significant distance. I do
not concur. That is, in my view, close enough to give the impression of being
somewhat overpowering, even with the garden of no. 87 in between. It would, as
Mr Sherlock said, be visually intrusive. I also do not agree that the owners
of the three affected properties should not be concerned that it is a bedroom
that overlooks their gardens. First floor bedrooms are frequently used for
other purposes, for instance as a study or an office, and the argument,
therefore, that use of them is not likely to coincide with use of gardens is
subjective and, in my judgment, misses the point. It is acknowledged that
there are mature trees and shrubs along part of the boundary between nos. 85
and 87, but in the wintertime, the whole area will appear much more open.
67.
Whilst it is, of course, the case that the occupiers of nos. 81 to 85
(and 87) are, and always have been, able to see into each others’ gardens from
first floor windows, it is the overall presence of this quite large and
imposing new house, facing directly along those gardens, that leads me to
conclude that impeding that use secures to those objectors distinct practical
benefits. I do not accept Mr Adams-Cairns’s opinion that it would only be no.
85 that might conceivably be affected, although the affects upon that one are
clearly the worst. There were also arguments that the occupation of a new
property would create additional noise, although bearing in mind the close
proximity of the extremely busy and very noisy main railway line, I would not think
that would realistically be a matter of any import.
68.
I conclude, therefore, that question (3) in Re Bass is answered
in the affirmative as far as nos. 81, 83 and, particularly, 85 are concerned, in
that the ability to impede the proposed use secures to them practical
benefits. The next question is whether those benefits are of substantial value
or advantage. Although the impact of the new property reduces the further
away an objector’s property is, I believe that certainly as far as no. 85 is
concerned, the ability to impede the overbearing influence of the new house,
and the overlooking that will occur especially into the rear garden, is a
substantial advantage.
69.
I turn now to the argument, expressed by the majority of the objectors,
regarding the impact during the construction period. Delivery vehicles and
contractors’ traffic will, in my view, create major problems and are likely to
cause damage to roadways, verges and the square. There is also the potential
for considerable acrimony between the developer and residents, especially those
that live nearest to the entrance of the site., and there will be a resultant temporary
loss of amenity Mr Perkins was adamant that large vehicles (which I take to
be brick lorries, concrete mixers, deliveries of timber, plasterboard and other
materials) will be able to drive directly onto the site, turn around and leave
in a forwards direction without difficulty before the house was actually
erected. Contractors and workmen’s own vehicles could also park on the site. He
said that the only potential difficulty he foresaw was delivery of pre-formed
roof trusses once the shell of the house had been built (if indeed it was
decided to use pre-formed materials). The objectors pointed out just how
narrow the roads are, and the fact that cars park half on and half off the
pavement especially during the school run. I agree that the photographs
produced by the applicants were not representative, and certainly when I
carried out the site inspection, there were a large number of cars dotted all
along Peplins Way, and there were some around the square. The photographs (including
some from Google Streetview) produced by some of the objectors, showing cars
parked all along Peplins Way and around the square, appear to me to confirm
that their concerns are far from unfounded.
70.
The main problem, it seems to me, is just how narrow the road is,
especially around the square and, even more importantly in terms of large
delivery lorries, the very sharp (90 degree) corners on each side of the
square. Large vehicles approaching the site from the main part of Peplins Way
will have to negotiate their way around two sides of the square, for a distance
of approximately 80 metres, along a roadway which narrows in places to between
four and five metres. There is the potential for damage to be occasioned to
parked cars, verges and planting on the square. It will not be possible, I
think, for large vehicles to pass parked cars on the square without encroaching
onto the central part of the square itself, where there is no pavement around
three sides, and the ornamental bushes and shrubs are located right up to the
road edge. Even with the best will in the world, however carefully the site
foreman or manager tries to control contractors and visitors, there is in my
judgment the potential for utter chaos to reign over a period of many months. I
do not accept the argument that large vehicles will be able to turn on the site
(especially if there are contractors’ vehicles already there) and it will be
necessary for them to carry out a reversing manoeuvre from the point in the
corner of the square where there is a 90 degree turn. If there were to be a
second vehicle parked on the front forecourt of no.87, that would also have to
be moved. Furthermore, I do not accept as realistic the statement that
contractors and workmen’s vehicles will all be able to park on site.
71.
Mr Bruce urged me to take into account the judgment of Carnwath LJ in Shepherd
v Turner, and that, in the absence of special facts, I should ignore
problems during the construction period. In my view, the facts of this case are
exceptional in terms of potential disturbance, and do justify giving special
weight to this factor. Whilst the primary consideration is clearly the value
of the covenant in providing protection from the effects of the ultimate use,
the impact of the short-term disturbance in this case is, I conclude, material.
Weighed alongside the impact that I have described above upon no. 85 in
particular, and nos. 83 and 81 to a lessening degree, I am satisfied that the
benefits preserved by the covenant are of substantial value or advantage, and
money will not be adequate compensation either for no. 85, or for any of the
other properties benefited by the restriction.
72.
The application fails, therefore, under ground (aa). The applicants’
case was also predicated under ground (c), but for the reasons I have given
above, I am satisfied that modification so as to permit the construction of an
additional dwelling house on the application land would injure all of those who
had the benefit, especially those whose houses are around the square (nos 81,
83, 85, 91, 107 and 109).
73.
This determines the substantive issues in this application, and the
decision will become final when the question of costs is decided. The parties
are now invited to make costs submissions in writing.
DATED 16 June 2011
P
R Francis FRICS
LP/11/2010
APPENDIX
1
Admitted objectors
1. 36 Peplins Way
2. 38 Peplins Way
3. 40 Peplins Way
4. 42 Peplins Way
5. 44 Peplins Way
6. 46 Peplins Way
7. 48 Peplins Way
8. 50 Peplins Way
9. 52 Peplins Way
10. 54 Peplins Way
11. 56 Peplins Way
12. 58 Peplins Way
13. 60 Peplins Way
14. 61 Peplins Way
15. 62 Peplins Way
16. 63 Peplins Way
17. 64 Peplins Way
18. 65 Peplins Way
19. 67 Peplins Way
20. 69 Peplins Way
21. 71 Peplins Way
22. 73 Peplins Way
23. 75 Peplins Way
24. 77 Peplins Way
25. 79 Peplins Way
26. 81 Peplins Way
27. 83 Peplins Way
28. 85 Peplins Way
29. 89 Peplins Way
30. 91 Peplins Way
31. 93 Peplins Way
32. 95 Peplins Way
33. 97 Peplins Way
34. 99 Peplins Way
35. 101 Peplins Way
36. 103 Peplins Way
37. 105 Peplins Way
38. 107 Peplins Way
39. 109 Peplins Way
40. 111 Peplins Way
41. 113 Peplins Way
42. 115 Peplins Way
43. 117 Peplins Way
44. 121 Peplins Way
45. 123 Peplins Way
46. 125 Peplins Way
47. 127 Peplins Way
LP/11/2010
APPENDIX 2
Objectors
entitled to benefit of the restrictive covenant
5. 44 Peplins Way
6. 46 Peplins Way
7. 48 Peplins Way
8. 50 Peplins Way
9. 52 Peplins Way
10. 54 Peplins Way
11. 56 Peplins Way
12. 58 Peplins Way
13. 60 Peplins Way
15. 62 Peplins Way
17. 64 Peplins Way
20. 69 Peplins Way
21. 71 Peplins Way
22. 73 Peplins Way
23. 75 Peplins Way
26. 81 Peplins Way
27. 83 Peplins Way
28. 85 Peplins Way
30. 91 Peplins Way
38. 107 Peplins Way
39. 109 Peplins Way
41. 113 Peplins Way
42. 115 Peplins Way
43. 117 Peplins Way
44. 121 Peplins Way
45. 123 Peplins Way
46. 125 Peplins Way
47. 127 Peplins Way
