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UPPER
TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 439 (LC)
UTLC
Case Number: LP/16/2010
TRIBUNALS,
COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT –
modification – covenant in 1870 Deed Poll restricting estate development to two
dwellings per plot – proposal to erect additional house on part of two of the
original plots – whether proposed use of land reasonable – whether practical
benefits of substantial value or advantage secured by the restriction – whether
modification would cause injury – application allowed – Law of Property Act
1925, section 84(1)(aa) and (c)
IN
THE MATTER of an APPLICATION under
SECTION
84 of the LAW OF PROPERTY ACT 1925
by
DAVID
HAROLD LORD HOYLE
GILLIAN
HOYLE Applicants
Re:
Land at Woodlands, 4 Church Road,
Stoke
Bishop, Bristol BS9 1JT
Before:
P R Francis FRICS
Sitting
at:
Bristol Employment Tribunal, The Crescent Centre,
Templeback,
Bristol BS1 6EZ
on
1 September 2011 Sitting
at:
Malcolm Warner,
instructed by Gregg Lashams, solicitors of Bristol, for the applicants
Dr Paul Thorne and Dr Graham
Rooth, two of the objectors in person
The following cases are referred to in this
decision:
Re: Purkiss’s Application [1962] 1 WLR 902
Re: Bass Ltd’s Application (1973) 26 P & CR 156
Shephard v Turner [2006] 2 P & CR 28
Re: Hoyles’ Application (1992) LT ref: LP/42/1990 (unreported)
Re: Hoyle’s Application (1969) LT ref: (LP/23/1967)
(unreported)
Re: Bull and Bull (Builders) Ltd (1965) LT Ref: (LP/49/1964) (unreported)
Re: Snaith and Dolding (1995) 71 P & CR 104
DECISION
Introduction
1.
The applicants in this case, Mr David Hoyle and his wife, Mrs Gillian
Hoyle, seek the modification of a restrictive covenant burdening land to the
rear of Woodlands (registered under title no: BL63859), 4 Church Road, Stoke
Bishop, Bristol, so as to permit the construction of one new detached private
dwelling house and garaging in accordance with a planning consent, granted on
appeal on 5 July 2006, under planning reference 0404624F and appeal reference
APP/Z0116A/06/2007913.
2.
The restriction is contained within paragraph 4 of a Deed Poll dated 1
January 1870 made between The Birmingham Financial Company Limited and several
purchasers, which was created when the original 89 acre Stoke House Estate was
laid out in 47 lots prior to sale. The restrictive covenant states, in part:
“4. NOT more than two residences shall at any
time be built upon any of the said lots ….All such residences on the said
estate….shall be built wholly (except such projections as bay windows and
dressings) on the inner sides towards the centre of the said lots respectively
of the lines set out upon the said plan and marked ‘building line’…Lodges
conservatories ornamental buildings of like character of any reasonable height
and dimensions may be built upon any part of each lot. Stables coach-houses
tool houses and erections similar in character may be built upon any portion of
the said lots on the inner sides as aforesaid of the said lines marked building
line such buildings not to exceed a height of 20 feet above the general level
of the ground in their vicinity.”
Although it goes on to refer to some
exceptions, the “said lots” include those upon which the application is made
(part lot 36 and part lot 37). All 47 lots have the benefit of the relevant
restriction.
3.
There were a total of 14 restrictive covenants in the Deed, and whilst
not mentioned in the originating application, they were all referred to by the
objectors, and paragraphs 3 and 5 (see para 20 below) were considered
particularly relevant.
4.
The applicants own and occupy Woodlands Lodge, Church Avenue, Stoke
Bishop, a detached house that lies immediately to the north-west of, and
adjoins, the proposed plot at its rear boundary. It was originally constructed
on lot 36 as the lodge house to Woodlands, Church Road, Stoke Bishop, a
substantial mansion also constructed in part on lot 36 and in part on lot 37.
Woodlands was converted and extended a number of years ago into a total of 9
apartments which were sold on long leases. The land upon which the new house
is intended to be built, and which is described more fully below, lies between Woodlands and the applicants’ present property.
5.
There were originally 11 objections but five were subsequently
withdrawn. Two of the remaining six objectors appeared and produced a joint witness
statement: Dr Graham Rooth of 6 Church Avenue and Dr Paul Thorne of 1 Stoke Park Road. They said that they were also appearing on behalf of the other objectors.
6.
Mr Malcolm Warner of counsel appeared for the applicants and called Mr
Hoyle as a witness of fact, and Mr Alex Anderson BA (Hons) MRTPI of Pegasus
Planning Group, Clifton, Bristol who gave expert evidence on planning matters.
7.
I carried out an accompanied inspection of the application land and the
surrounding area on 31 August 2011.
The application land and surroundings
8.
Stoke Bishop is a predominantly residential suburb of Bristol, about 2
miles north-west of the City Centre, and immediately to the north of Clifton. Properties fronting Stoke Park Road, Stoke Park Road South, Hollymead Lane and Church Avenue together with parts of Church Road and Stoke Hill have been constructed upon
what was once the Stoke House Estate which became subject to the Deed Poll
dated 1 January 1870 referred to above. There is now an eclectic mix of
properties including substantial Victorian houses, both detached and
semi-detached, many of which have been converted into flats, together with
predominantly detached houses constructed in the 1930s, 50s and 60s occupying
mainly large plots of between a half and one acre although there a number of
significantly smaller plots. In the centre of the park, and approached off
Stoke Hill, the original Stoke House has become the Stoke House Trinity
Theological College and a four storey hostel has been constructed in the
grounds. Extensive student accommodation has also been constructed by Bristol University, with ancillary lecture rooms and other facilities, and the university
has also converted a number of the large Victorian houses into hostels.
9.
The proposed development for which detailed planning consent has been
obtained, and for which the modification is sought, lies immediately to the
north-west of Woodlands, extends to approximately 0.54 acre and will be granted
vehicular and pedestrian rights of access off Church Road over the driveway
that serves that property and its garages. The proposed new detached house will
be physically located on the original plot 36 which would extend the current
coverage that comprises half of Woodlands, Woodlands Lodge, the new house
constructed on part of the lodge’s former garden and about half the garden of 9 Church Avenue. The rearmost part of the proposed property’s garden, which is currently extensively
overgrown and lies to the north-east of the house’s footprint will be on plot
37. That currently contains the other half of Woodlands, the house and half
the garden at 9 Church Avenue, part of the gardens of a property in Stoke Hill
and another in Church Road.
The applicants’ case
10.
The application was made under grounds 84(1)(aa) and (c) which provide:
“84-(1) The
Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the
court) have power from time to time, on the application of any person
interested in any freehold land affected by any restriction arising under
covenant or otherwise as to the user thereof or the building thereon, by order
wholly or partially to discharge or modify any such restriction on being
satisfied -
(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 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.
11.
Mr Hoyle said that he and his wife have lived at Woodlands Lodge since
1966. It had formerly been a coachman’s cottage and stables for Woodlands and, up until 1948, when the titles were separated, it had been occupied by a gardener
in the employ of Woodlands’ owners. Mr & Mrs Hoyle set about converting Woodlands Lodge, by incorporating the stables and hay loft, into a 3 bedroom house. Then, in
1989, they sought and obtained planning consent from Bristol City Council for
the erection on the part of Woodlands Lodge’s garden to the east (also within
the original lot 36), of a new house and garage with vehicular access to Church
Avenue. A subsequent application was made to the Lands Tribunal for
modification of the restrictive covenant so as to permit that development and,
in a decision dated 9 December 1992 the modification was allowed (LT ref:
LP/42/1990). That decision followed an earlier application in 1967 by the
Hoyles to the Lands Tribunal, which was for a smaller property and plot, but
which was refused (Re: Hoyle’s Application (1969) LT ref: (LP/23/1967)
(unreported)). Following the 1992 decision, the plot was sold for
development in 1999 and the permitted house was built.
12.
In 1999, Mr Hoyle said, they approached the then owner of Woodlands to see if they could acquire part of the land to the rear of that property that backed
onto the development plot so as to give it more garden. On receiving that
approach, the owners informed them that they wished to dispose of the whole
property. That included the freehold of Woodlands, which had been converted
from what had been a very substantial private residence, into a total of 9
flats and which had been sold on 1001 year leases, together with an area of
what was then seriously overgrown shrubland that lay between it and Woodlands Lodge, the development plot and no. 9 Church Avenue. Thus, he said, they ended up
acquiring Woodlands and all its land effectively by accident. A part of the
scrubland was incorporated into the development plot that was then sold, part
of it was taken to extend the garden of Woodlands Lodge, and an option was
granted to the owners of 9 Church Avenue to enable them to acquire a similar
area of additional land behind their garden. It is the remaining area of land
between Woodlands and the applicants’ property and the two others referred to
that now make up the application land in this case. Although the application
plan had shown the whole area of land including that occupied by Woodlands as the application land, Mr Hoyle confirmed that the area of land to be sold if the
proposed development can proceed is just that area of garden as described, and
this extends to just over half an acre.
13.
Mr Hoyle said that he understood that the restriction was in place to
preserve the Stoke House Estate, and to create and maintain a leafy urban
garden estate. The area has seen considerable development since 1870, but in
his view the purpose is still being achieved in an evolutionary way in
accordance with the Conservation Area criteria. Indeed, he said, the
development that had already been undertaken on lot 36 adjacent to his own
house was in line with that evolution, as would be the development that was
proposed. He said that a number of planning conditions that had to be complied
with before building works could commence had been applied by Bristol City
Council when consent was granted on appeal. They included obtaining reptile
and badger surveys, together with provision of a landscape management plan and
bird and bat boxes. Most of those conditions had already been complied with,
and a letter of 13 January 2011 from the City Council and signed discharge
monitoring sheet had been included within Mr Anderson’s report.
14.
Asked by Dr Thorne why the property had been located at the western end
of the site, with its front elevation facing onto the high wall that separates
the plot from Mariners Walk, Mr Hoyle said that the precise positioning had
resulted from extensive discussions between his architect and the local
planners. In any event, he said, the principal rooms would be looking east, to
the rear, over its own garden. Dr Thorne also expressed the objectors’
concerns that, with the plan accompanying the application having included the
whole of the Woodlands site, there was a risk that he would try to resurrect
the application that had been made in 2004 which sought permission for two
detached houses on the site. In response, Mr Hoyle said that he had initially
consulted a conservation architect who had indicated that two properties could
be accommodated on the land and they would effectively “balance” the site.
However, the application that had been made on that basis had been refused, and
there was no intention of trying again.
15.
Mr Hoyle said that it was the applicants’ view that, in respect of the
specific grounds under which the application had been made, the proposed user
of the land was reasonable (that fact not now being disputed by the objectors),
and that none of them would be affected by it. Their houses would not be
diminished in value if the development was to go ahead, and there would be no
injury caused. As to the objectors’ suggestion that the area of land to be
developed extended to no more than a quarter of an acre, Mr Hoyle said that it
had been measured at just over half an acre by Mr Anderson. In that regard,
he referred to an order of the Official Arbitrator made in 1938 modifying the restriction
on another property on the former Stoke House Estate so as to permit houses to
be erected on half-acre plots. That Order was believed to have been over land
encompassing a number of the original lots, and although it had been referred
to in Re: Purkiss’s Application [1962] 1 WLR 902, the Order cannot now
be found, and the exact extent of the land involved cannot now be established.
16.
Mr Anderson is a principal planner and an associate within the Pegasus
Planning Group in Bristol, has particular experience in the field of
development control and strategic planning matters and has been practising in
the Bristol area since 2008. He said that he had been asked to provide a report
commenting upon the issues raised in the grounds of application in planning
terms, whether in his professional opinion the grounds had been made out and in
particular the likely impact of the proposed development upon the objectors’
properties and whether their expressed concerns had any merit. He set out the
background to the application, the initial refusal from the City Council and
the ultimate granting of permission on appeal, and commented upon the historic
pattern of development within the area encompassed by the Stoke House Estate. In
this regard, he attached to his report a comprehensive schedule (appendix 7) setting
out the addresses and number of properties, together with their uses, on each
of the original 47 lots together with a plan (appendix 2A) identifying the
siting and boundaries of the buildings now constructed in the context of the
original lotting. A larger version of appendix 2A was helpfully produced at
the hearing. The proposed development, Mr Anderson said, complied with the
policies set out in the Bristol Local Development Plan which were in force at
the time of the appeal, and are still current.
17.
Dealing at some length with the planning concerns that had been raised
by the objectors, including alleged loss of amenity, development density, conservation
and wildlife issues and traffic generation, Mr Anderson concluded that many of
the objectors were trying to re-state the arguments that had been before, and
had all been considered by, the inspector in respect of the planning appeal.
The application land could not be seen from any of the objectors’ properties,
and with the access being onto Church Road, there would be no traffic
implications upon any of their houses. It was Mr Anderson’s view that the
area would not change significantly as a result of the proposed development.
There had already been considerable changes to the character of the area since
the estate was formed in the mid to late 19th century. It is no
longer dominated by large detached properties set within substantial plots
particularly with the arrival of the University and its associated
facilities. There are also a number of other commercial users located on the
estate (thus in breach of the terms of restriction 3) including nursing homes
on lots 10 and 33, and a conference centre on lot 11. As his appendix 7
showed, a large number of the lots now contain more than two dwellings and this
was a further indication of how the character of the area has changed over the
years. Nevertheless, he said, it still remains a leafy and attractive suburban
location, and there was nothing in respect of the applicants’ proposals that
would conflict with how the area has evolved.
18.
Mr Anderson was asked by Dr Rooth whether a letter that had been sent by
Bristol City Council to the Secretary of State for Communities and Local
Government on 19 October 2007 indicated a hardening of the council’s attitude
to backland development which would mean if the application for the proposed
development had been made then, it would not have been approved, even on
appeal. That letter followed a resolution that had been made by the full
council on 16 October 2007 that called for action on land use (garden
protection). It read, in part:
“Council is
concerned over the damaging impact to residential areas caused by changes to
the planning rules, which have encouraged or permitted high-density
developments in or on large gardens and urban green spaces.
Council
regrets the misleading designation given in Government planning guidelines (PPG3), which treats gardens as previously developed, or ‘Brownfield’ sites. This classification
effectively puts vital parcels of green land on an equal footing in planning
terms to derelict factories and gasworks.
Council
therefore calls on the Government to exempt gardens from Brownfield status.”
Mr Anderson said that the policy situation had
indeed changed at national and local level, but that did not mean that an
application such as this would have been refused.
19.
It was submitted that it would be immediately obvious, on inspection,
that compliance with restriction 4 has been fairly mixed over the years and
that what is now on the estate seems to ignore the 1870 lotting. However, it
was accepted that the estate as a whole today still represents an attractive
space which manages to combine a substantial number of residences but retain an
affluent and leafy aspect. It was the present environment that was important
to consider in respect of this application, and the prospective effect of any
modification.
20.
It had been accepted that the proposed use was reasonable, and that the
restriction impedes that user. As to whether practical benefits are secured to
the objectors, the answer, it was submitted, must be no - the objectors had
acknowledged that neither of their properties would be affected in any way. There
being no practical benefit, the question of whether or not it is of substantial
value or advantage does not apply. The objectors’ main argument appeared to be
the “thin end of the wedge” and their concerns that a modification in this case
might prompt a barrage of new applications from elsewhere on the estate. The
reality is, Mr Warner said, that there is already a wedge, and this application
is not the thin end of it; nor is it a tipping point from an occasional
intrusion to a sudden avalanche of new applications. There was simply no
evidence to suggest that a modification on this site would make one iota of
difference as to the maintenance of the restrictions binding the rest of the
estate.
21.
There is nothing about the application, it was submitted, that could be
deemed contrary to the public interest. All such concerns were considered in
the granting of the planning application, and were covered by the conditions
that were imposed. In respect of whether money would be adequate
compensation, the starting point must be whether there is any entitlement, and
in the light of the foregoing, there simply was none. As the proposed
modification will have no affect whatsoever upon the objectors, then the
question of compensation under ground (c) does not apply.
The objectors’ case
22.
Drs Rooth and Thorne produced a comprehensive witness statement in which
they set out a chronology relating to the application and details of the
restriction that the applicants seek to have modified and the others that were
included within the 1870 Deed Poll, together with their interpretation of what
the restrictions were intended to achieve and an examination of the present
state of development on the estate in relation to them. They also commented
upon Mr Anderson’s report, and considered the case for the modification of
restriction 4 in the light of the six questions posed in Re: Bass Ltd’s
Application (1973) 26 P & CR 156.
23.
It was their view that, in respect of the meaning and intent of the
restrictive covenants, restrictions 3 and 5 in particular should be read in
conjunction with restriction 4. Restriction 3 states:
“3. NO
owner shall erect any building on the said Estate (except Lots 45, 46 and 47)
other than a private residence or outbuilding to a private residence or use any
building so to be erected on the said Estate (except on Lot 47) for any other
purpose or use any part of the said Estate as a tea garden or place of public
amusement or carry on or suffer or permit to be carried on any part of the
estate (except Lots 45, 46 and 47) any trade business or manufacture whatsoever
…”
Restriction 5
states (in part):
“5. No
residence (exclusive of stabling coach houses conservatories fences and
buildings of like character) shall be erected upon Lots 1, 2, 3, 9, 10, 11, 12,
13, 14, 21, 23, 29, 30, 31, 32 or 33 of a less value than one thousand pounds
or upon any of the other Lots except Lots 45, 46 and 47 of a less value than
eight hundred pounds…”
and that it would not be right for the
Tribunal to consider restriction 4 in isolation in interpreting what it was
that the estate vendors were trying to achieve.
24.
The objectors said that it was clear from the restrictions that the
vision for the development of the Stoke House Estate was to create a quiet,
nuisance free residential area with no trade or business activities, populated
with high quality, high status and prominent properties. For example, the £800
minimum price stated in 1870 for dwellings on the lots that included those upon
which the application land is situated would equate to over £1 million
today. It was intended that any development would be well planned, well
controlled and well regulated and, with a maximum of two houses per plot
(together with, where required, stables and coach houses), to a low density.
Indeed, they said, that was precisely the interpretation that the Member, Mr J
S Daniel had adopted when refusing the application in Re: Hoyle’s
Application (1969) LT ref: (LP/23/1967) (unreported). Since 1870, the
objectors said, the estate had developed broadly in line with those intentions
although it was acknowledged that, in the ensuing 141 years, there had of
course been some deviations from the letter, spirit and intent of the
restrictions. However, compliance with those intentions had been remarkably
good and the properties that have been built generally conform to that vision
and ethos. The reason for this is partly due to the efforts of local residents
in vigorously objecting to any applications that have been made.
25.
The objectors referred to the 1938 Arbitration Order which, it was
agreed, could not be traced. It had been mentioned in the decision of Mr
Erskine Simes in Re: Bull and Bull (Builders) Ltd (1965) LT Ref:
(LP/49/1964) (unreported) which dismissed an application for the erection of 10
houses and garages or two blocks comprising 36 flats on plots 18 & 19 which
were bounded by Eastmead Lane to the north, Hollymead Lane to the east and
Stoke Park Road to the south, a few hundred yards to the east of the
application land. The relevant passages read:
“The house
already built on plot 19 and an unbuilt-on plot purchased in 1942 by Stride
Bros who are builders, and who have since developed the opposite side of Stoke
Park Road, form the remainder of plots 18 & 19 so that under the covenants
as they stand, it would be possible to erect three houses on the application
site if building by Stride Bros was anticipated.
The houses
erected on the opposite side of Stoke Park Road [those developed by Stride
Bros], eight of which are owned by objectors, stand on land which was the
subject of an Order of the Official Arbitrator under section 84 of the 1925 Act
made on 17 November 1938 modifying the covenants so as to permit houses to be
erected on half acre plots”
Mr Stride was one
of the objectors in that case, and was also an objector in a later application relating
to prospective development on plots 1 & 2 (LT ref: LP/14/1982). A copy of
his witness statement was appended to the objectors’ statement. He said, in
part:
“I, together
with my family company, developed a considerable part of Stoke Park Road in
about 1952/53. I think we built 10 houses in total and we adhered strictly to
the covenants as amended by the 1938 Arbitration Order so that the houses were
developed on roughly half acre plots…”
He was objecting to a proposal to erect eight
detached houses as he thought that would constitute over-development, but he said
that he would not object if the application were reduced to three or four
houses. Unfortunately, Drs Hooth and Thorne said, the application was
successful and a further two houses were also, later, permitted.
26.
Although it was not known precisely which plots the Arbitration Order
related to, the objectors said that the application land in this case did not
even conform to the half acre rule.
27.
The objectors said that, in respect of Mr Anderson’s report, the issue
was not so much a planning matter as one of law, and whether the application
could be justified on the grounds under which it was made. However, they took
issue with some of his statements. In suggesting that a significant number of
the originally defined plots have more properties on them than would have been
originally permitted, Mr Anderson was implying that the covenant was not as
strong at preventing development as originally intended, and therefore that the
issue of precedence was not of particular significance. The estate, he had
said, was no longer dominated by large detached properties sitting on their own
substantial plots. This was simply not the case. Thirty three out of the
original 44 lots that were affected by the restrictions have large houses on
them and the plots are of at least half an acre. There was a risk, the
objectors said, that Mr Anderson had double counted some of the properties
where their boundaries did not match with the originally designated plot
boundaries, and may also have been reliant upon the electoral roll. That would
account for the houses that had been split into flats or halls of residence,
and so would show more occupiers.
28.
The objectors then set out in detail their “count” of the number of
properties on the estate, and allowing for the assumption that those large
houses that had been split would still be taken as one dwelling, as would be
the modern halls of residence constructed by the University, arrived at a total
of 130 buildings, a number that was much lower than Mr Anderson’s calculation
of 187 dwellings. Under the terms of the original 1870 Deed Poll, there could
be at least 93 main residences, and even if only half of them took up the
option of providing coach houses then there could be at least 147 dwellings.
Overall, therefore, the original intent of the covenants was still being
complied with. There had been a number of breaches of the restriction over
the years, but not so far to a serious degree. There were also some plots (for
example plots 20 and 22 where two additional houses (not coach houses) had been
constructed in the rear gardens of properties fronting Stoke Park Road, taking
their access from Eastmead Lane) but this appeared to have been unopposed.
29.
As to plot 36, the objectors said that at the present time it complied
with the original restriction (even with the addition of the additional plot
next to Woodlands Lodge – now known as 9 Church Avenue). However, 9 Woodlands Avenue at about 0.2 acre did not comply with the 1938 half-acre rule, and
neither would the proposed plot. The proposed plot would also breach
restriction 4 in that it would not be orientated to a building line as
specified.
30.
Regarding the six questions in Re: Bass, it was accepted
in respect of the first two that the proposed user was reasonable, and that the
restriction does serve to impede that use. The ability to impede that use
supports the Deed Poll’s intentions to protect the estate from high density
development and thus secures to the beneficiaries practical benefits. Those,
the objectors said, were clearly of substantial value and advantage. Impeding
the proposed use was also very much in the public interest as not only does it
send out a clear message of support for the effective stewardship of the
estate, it protects the views of the occupants of the flats and apartments in
Woodlands who do not have the right to object. Regarding whether or not money
would be adequate compensation, the objectors accepted that they were not
seeking financial recompense.
31.
Under ground (c) it was the objectors’ case that injury would be caused
in terms of stress and anxiety rather than financially if the restriction were
to be modified.
32.
In summary, the objectors said that the application was a prime example
of the modern trend of “garden grabbing” and constituted the thin end of the
wedge. If the applicants were to be successful, then it could be anticipated
that there would be further applications from elsewhere on the estate, citing
this case in support.
Conclusions
33.
In their application dated 12 March 2010, under the heading “The modification sought” the applicants had said:
“The
restrictive covenant in the deed dated 1 January 1870 be modified to allow the
erection of one detached dwelling with attached garage, formation of private
drive and associated landscaping as permitted under planning consent reference
0404624/F and appeal reference APP/Z0116/A/06/2007913”
However, at the commencement of the hearing,
Mr Hoyle’s counsel sought permission to add the words “and any modification
thereto” after the planning consent references.
34.
I allowed a short adjournment for the objectors to consider the request,
and upon resumption Drs Rooth and Thorne said that they opposed it, and that
such a variation, if indeed the Tribunal was minded to grant a modification,
would potentially give the applicants carte blanche to significantly alter what
had been permitted. As they had indicated in their witness statement, they
were particularly concerned that it was the applicants’ intention to re-apply
for permission for a second new dwelling on the land. I refused the variation
as sought, but said that, if I were minded to modify the restriction to permit
the erection of the property for which consent had been obtained, I would
consider a suitable amendment to the wording which might allow minor
alterations. Failure to do so, I said, might give the objectors an “axe to
wield”. However, in that regard, Mr Warner said that whilst, in respect of
this application, Mr & Mrs Hoyle would not be seeking costs from the
objectors if they were successful, there could well be costs implications if
the matter had to return to the Tribunal under these circumstances.
35.
The objectors also expressed concern about the extent of the plot which,
on the application plan, appears to be “U” shaped in that whilst the proposed
property is shown as having its principal access from the main driveway serving
Woodlands (around the south-west side of the building), the plot included land
to the north-east of Woodlands as well, connecting with the rearmost section of
the proposed plot’s intended rear garden. They said that although the initial
application for two dwellings made by the applicants had been refused, and
subsequently permission was granted in 2006 for just the one house, they
envisaged a new application being made reinstating a requirement for two
detached dwellings, the second having its access to the north-east of Woodlands.
36.
Mr Hoyle confirmed in response to a question from me that whilst the
application land was shown as described, he had no intention of later
attempting to get permission for a second property. Indeed, he said “this
[application] is absolutely and definitely the end of it.” Although it was now
over 5 years since the permission was granted, and the new house had not yet
been built, Mr Hoyle said that a ‘material start’ had been made (footings for
part of the property which had been temporarily back-filled) and this had been
accepted by the City Council. That was what was intended to be built, and no
further consents were to be sought. However, the suggested variation would
enable modifications to be made to the one house for which consent had been
obtained, if such were required, without the need to return to the Tribunal.
37.
The plan at appendix 6 of Mr Hoyle’s witness statement [page 82 of the
bundle] indicated quite graphically the extent of the application land and it
was abundantly clear that, apart from some potential problems relating to trees
that are or may be subject to Tree Preservation Orders, an opportunity for a
further unit could well present itself. The fact that the plan showing the
application land included the whole of the area currently occupied by
Woodlands, and the plan showing the proposed development [bundle p217] indeed
did appear to show the area of garden ground to the north-east of the house
itself as included, suggests to me that the objectors’ concerns were reasonably
founded. However, I reminded the applicants that this application was for a
single unit in accordance with the planning consent and the Tribunal’s decision
would be made on that basis alone. Any additional development, should planning
consent be subsequently sought and obtained, would need to be the subject of a
further application which would, as in this case, be determined entirely upon
its merits.
38.
The application proceeded on the basis of grounds (aa) and (c). In
respect of ground (aa) it has been agreed that the proposed user is reasonable,
and that the restriction (4) impedes that use. The question for me to
determine therefore is whether the restriction secures to the objectors
practical benefits, and if so, whether they are of substantial value or advantage.
The objectors acknowledged that neither of their properties would be affected
by the proposed development, and that the new house would not been seen from
within the curtilage of their houses. From my site inspection it was clear
that that would indeed be the case. The house will be tucked away behind Woodlands Lodge and the previously permitted new house at 9 Church Avenue and, particularly with
the substantial tree screen that exists, it will be all but invisible from any
of the surrounding roads. It will be visible from the flats and apartments in Woodlands but that is not a matter which I can take into consideration in terms of this
application as none of the occupiers have the benefit of the restrictive
covenants
39.
The objectors’ main concerns were related to the thin end of the wedge
argument and, as they had done in previous applications, were attempting to
ensure that the original intent of the restrictions set out in the 1870 Deed
Poll was maintained. The position adopted by this Tribunal as to the thin end
of the wedge was explained in Re: Snaith and Dolding (1995) 71 P &
CR 104 where the former President, HH Judge Marder QC said (at 108):
“The position
of the Tribunal is clear. Any application under section 84(1) must be
determined upon the facts and merits of the particular case, and the Tribunal
is unable to bind itself to a particular course of action in the future in a
case which is not before it: see Re: Ghey and Galton and Re: Farmiloe.
It is however legitimate in considering a particular application to have regard
to the scheme of covenants as a whole and to assess the importance to the
beneficiaries of maintaining the integrity of the scheme….
Insofar as this application would have the
effect if granted of opening a breach in a carefully maintained and
outstandingly successful scheme of development, to grant the application would
in my view deprive the objectors of a substantial practical benefit, namely the
assurance of the integrity of the building scheme. Furthermore, I see the
force of the argument that erection of this house could materially alter the
context in which possible future applications would be considered.”
40.
In that case, it was considered that the erection of a dwelling as
proposed could have a detrimental effect upon the integrity of a carefully
maintained and outstandingly successful building scheme, and if the required
modification were to be granted, the objectors would therefore be deprived of a
substantial benefit. In respect of the Stoke Park Estate, a large number of
the original plots (in fact, the majority) have seen the construction of
private residential dwellings and blocks of student accommodation that appear
to be entirely at random, and do not follow the original lotting in any way.
For instance, Woodlands itself is built over plots 36 and 37 which, together
with the applicants’ own house and that for which a modification was obtained,
now contains 4 properties (assuming, as the applicants argue, Woodlands, which
is split into flats, is taken as one), and part of the garden of one other
(Green Cedars, Church Avenue). Plot 38, immediately to the east of plot 37,
has four properties, plot 23 has three and part of at least two others. Indeed
Dr Rooth’s house at 6 Church Avenue, although being the only dwelling actually
occupying the original plot 43, has its front garden partly in plots 44 and 42,
and part of its rear garden also in plot 44. Plots 20 and 22 each contain 4
detached houses, two fronting Stoke Park Road, and two fronting Eastmead Lane. Plot 9 contains 5 houses and part of the gardens of two others. Dr
Thorne’s property at 1 Stoke Park Road appears to be one of the few where,
along with the adjacent house to the west on the corner of Stoke Park Road and
Stoke Hill, the restriction has been rigidly complied with.
41.
It is clear, therefore, that over a period exceeding one hundred and
thirty years, little heed has been taken of the original estate lotting, and
few of the individual properties’ boundaries correlate to the boundaries of the
original plots. Nevertheless, although there have been extensive breaches over
the years, this undoubtedly remains predominantly an area of pleasant low-density
development and, as pointed out by the objectors, the total number of dwellings
does not seem to significantly exceed what was originally envisaged, especially
if the ability to construct additional coach houses is taken into account. The
modification that was made in the 1938 Arbitration Order which permitted
development on ½ acre plots upon part of the Estate, (and from the evidence it
appears to have related to plots 24 and 25, with possibly part of plots 3 and
23 which Mr Stride developed in the 1950s) does seem to me to have set a
general ongoing tone for development in the area that has, in the main, been
complied with. In my judgment, this particular proposal certainly fits in
well with the pattern of development that has occurred especially over the last
50 years or so, and is not significantly out of line with the sort of
environment that would have originally been envisaged. The proposed
development plot is just over half an acre, and the objectors’ arguments that
the application does not even comply with the intent of the 1938 order must
therefore fail. However, it is of course the restriction in the 1870 Deed Poll
by which I am bound in determining this application,
42.
I am not persuaded that the construction of the new house in accordance
with the 2006 planning permission will set a precedent for an avalanche of new
applications, as it does seem to me that there are few remaining development
opportunities on the estate. It would not, therefore, as was the situation in Re:
Snaith and Dolding, be something that would materially affect the integrity
of the scheme, and as the objectors properties are not affected in any way, the
ability to prevent the proposed development occurring does not provide them
with practical benefits of substantial value or advantage. I thus accept the
arguments of the applicants and determine that the application succeeds under
ground (aa).
43.
That being the case, I do not need to consider ground (c), but it will
be clear from what I have said that I do not think any injury would be caused.
44.
The application having been successful, I determine that restriction 4
shall be modified so as to allow the erection of one detached dwelling
with attached garage, formation of private drive and associated landscaping as
permitted under planning consent reference 0404624/F and appeal reference
APP/Z0116/A/06/2007913. Whilst it does not appear that this form of words is
sufficient to permit minor modifications, as the applicants require, I have
come to the conclusion that it is not for this Tribunal to suggest an
alternative wording that might create some limited flexibility but at the same
time be sufficiently robust to allay the objectors’ concerns. It would in any
event be necessary that any extension to permit minor alterations should be
expressed in terms that are sufficiently precise as to be enforceable, and I do
not consider that this would be possible.
45.
It was stated at the commencement of the hearing that, if successful,
the applicants would not seek costs from the objectors, and in the
circumstances therefore, I make no such order.
DATED
21 November 2011
P
R Francis FRICS
