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UPPER TRIBUNAL
(LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 141 (LC)
LT
Case Number: LP/30/2009
TRIBUNALS,
COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE
COVENANT – discharge or modification – former hospital – covenant relating to
small part of hospital building and other land prohibiting erection of any
buildings within 20 feet of adjoining footpath – application to discharge or to
modify to permit erection of two flats as part of proposed refurbishment of
entire hospital to form 21 flats and 4 houses – whether restriction obsolete –
whether restriction secured practical benefits of substantial value or
advantage to objector the owner of neighbouring woodland – whether proposed
discharge or modification would cause injury to objector – held covenant not
obsolete but grounds (aa) and (c) made out – application for discharge refused,
application for modification granted – Law of Property Act 1925 s84(1)(a), (aa)
and (c).
IN
THE MATTER OF AN APPLICATION UNDER SECTION 84
OF
THE LAW OF PROPERTY ACT 1925
BY
SHAMIM
AKHTAR SHEIKH
and
JAVED
AKHTAR
Re: Part
of former Fletcher Hospital
Roughton Road
Cromer
Norfolk
Before:
N J Rose FRICS
Sitting
at 43-45 Bedford Square, London, WC1B 3AS
on
14 March 2011
Mr S A Sheikh in person and for
the second applicant
Marie-Claire Bleasdale,
instructed by Hayes & Storr, solicitors of Fakenham for the objector
The following cases were cited
in argument
Ridley v Taylor [1965] 1
WLR 611
Cresswell v Proctor [1968]
1WLR 906
DECISION
Introduction
1.
This is an application by Mr Shamim Akhtar Sheikh and Mr Javed Akhtar
under section 84(1) of the Law of Property Act 1925 for the discharge or
modification of a restrictive covenant affecting freehold land known as part of
the former Fletcher Hospital, Roughton Road, Cromer, Norfolk, so as to permit
the construction of two apartments on ground and first floors in place of the
existing single storey structure.
2.
The restriction was imposed by a deed dated 10 May 1989 (the Deed)
between Thomas Benjamin Cabbell-Manners (the Covenantee), the owner of the
Cromer Hall Estate, and the Secretary of State for Health (the Owner) by which,
in consideration of the payment of £2,000 by the Owner to the Covenantee, the
Owner covenanted
“with the Covenantee and his
successors in title owners or occupiers for the time being of the estate and
each and every part thereof for the benefit and protection of the estate and
each and every part of it (but so that the benefit of this Covenant shall not
pass to any purchaser of the estate or any part thereof except insofar as it is
expressly assigned) and with the intent and so as to bind the Red Land (but not
the Blue Land) and each and every part thereof into whosoever hands it may come
not to erect any building on the Red Land within twenty feet of the road known
as Love Lane which road is shown for the purposes of identification only
coloured brown on the plan marked A attached hereto.”
3.
The background to the Deed was that the Cromer Hall Estate had
previously enjoyed the benefit of covenants over both the Red Land and the Blue Land, which adjoined the Red Land to the north. By the Deed the Covenantee,
as far as he lawfully could, released the Owner and his successors in title and
the Red Land and The Blue Land from the 1891 and 1914 covenants (see below) so
far as they benefited the Cromer Hall Estate.
4.
The Blue Land was the subject of a conveyance dated 29 June 1891, by
which the purchasers covenanted not to use the land and any buildings thereon
“for any other purpose than for a Convalescent
Hospital with or without lodge or Cottage without the consent in writing of the
Vendors or others or other owners or owner for the time being of the Mansion
known as Cromer Hall their or his assigns and that no building or part of a
building shall be erected upon the said piece of land except in accordance with
plans and elevations first submitted and approved in writing by the Vendors or
others or other the owners or owner for the time being of Cromer Hall
aforesaid.”
5.
The Red Land was the subject of a conveyance dated 15 December 1914,
whereby the purchaser covenanted to perform the following stipulations, namely:
“(1) No trade or business shall be
carried on upon the said land or any part thereof or in any buildings to be
erected thereon nor shall anything be done thereon which may be or grow to be
an annoyance to the Vendors.
(2)
No buildings shall be erected on the said land except in accordance with
the type of building or dwellinghouse the plan and elevations whereof have been
approved by the Vendors a copy of such plan and elevations to be deposited with
the Vendors before building operations are commenced.
(3)
No buildings shall be erected on the said land except only detached
private dwellinghouses with the necessary outbuildings offices stables and
conservatories applicable to each of such dwellinghouses each of such detached
dwellinghouses to be of not less value than £450 in labour and materials …”
6.
On 7 September 2005 planning permission was granted by North Norfolk
District Council for the conversion of the former Fletcher Hospital buildings to form 4 houses and 21 flats. The proposed flats known as Nos. 20 and 21
were shown as located at the north west corner of the Red Land, immediately to
the east of Love Lane. The remaining 19 flats and 4 houses fell within the
area of the Blue Land to the north.
7.
Mr Cabbell-Manners, the original Covenantee, objected to the
application. It is agreed that he is entitled to the benefit of the
restriction. Mr S A Sheikh appeared in person and also on behalf of his
brother, the second applicant. He gave factual evidence and called expert
evidence from Mr Sam Phillips HND, BSc, AIEEM, senior ecologist with The
Ecology Consultancy of Norwich. Ms Marie-Claire Bleasedale of counsel appeared
for the objector and called him to give factual evidence.
8.
I inspected the application site and the surrounding area, accompanied
by the parties on 12 April 2011.
Facts
9.
The application site lies within the curtilage of the former Fletcher Hospital, which dates from the late nineteenth century with subsequent additions,
extensions and outbuildings, the last being added in 1980. The original
buildings were L-shaped and ornate, with stained glass windows and a turret. Most
of the hospital buildings were situated within 20 feet of Love Lane. The former
hospital lies on the edge of a largely residential area off Fletcher Way, on
the south-west side of Cromer. It lies behind Benjamin Court, a property
managed by Broadland Housing Association as a day centre, continuing care unit
and sheltered housing, built following the grant of planning permission in
1993. Benjamin Court was erected within the former extensive grounds of the
hospital.
10.
The former hospital buildings were sold to the applicants by the Secretary
of State for Health in October 1996, with the benefit of planning permission
granted on 14 June 1993 for their conversion to 15 flats. In 1999 planning
permission was granted to change the hospital buildings to a mixed use
comprising learning centre, non-residential childcare, employment support
facility, short stay residential accommodation and associated offices. This
consent was not implemented because the proposed occupier, the Benjamin
Foundation, was unable to finance the acquisition of the property.
11.
A public footpath, Love Lane, runs in a north-south direction,
immediately adjacent to the western boundary of the Red land and the Blue Lane To the west of Love Lane lies East Wood, which forms part of the Cromer Hall
Estate. East Wood is managed by the objector under a Higher Level Stewardship
(HLS) agreement with the Secretary of State for Environment, Food and Rural
Affairs which includes other estate land. At its closest point East Wood lies
approximately 6 metres to the west of the hospital site. It has been declared
a County Wildlife Site (CWS). It has not been notified as a Site of Specific
Scientific Interest (SSSI) or given any other statutory designation.
12.
When the restrictive covenant was entered into in 1989, the hospital was
used for the care of the terminally ill.
13.
Within the wider HLS agreement, East Wood is subject to management under
Option HC8 – Restoration of Woodland. The agreement states that the aim of
this option is to restore existing woodland to good condition. This may
require the exclusion or management of livestock, the removal of inappropriate
species and the re-structuring of the habitat, management of open areas,
planting, tree protection, coppicing or pollarding. The management plan is
overseen by Natural England on behalf of the Department of the Environment, Food
and Rural Affairs (DEFRA).
14.
The hospital site predominantly comprises buildings – some single storey
and some on two storeys – and hard standing, mainly used for parking and
access. The boundary between the hospital site and Love Lane is currently
delineated by a wooden fence. The fence has fallen into disrepair in places,
but has been reinforced with Heras fencing panels. The ground slopes upwards
towards the boundary with Love Lane, particularly towards the northern end of
the site where a steep scrub covered bank is present behind the buildings.
15.
Love Lane is a public footpath which runs along the western boundary of
the hospital site from Arbor Road in the north to Roughton Road in the south.
It is an unmade pathway. Along the section behind the hospital site it is
flanked by a dense beech hedge on the hospital boundary and a raised earth bank
on the East Wood boundary. In places, such as behind the Red Land and level with the northern end of the hospital site, this earth bank is about 4 feet high
and covered by dense bramble scrub and bracken. A continuous 2 metre high deer
fence runs north-south, parallel with Love Lane and approximately 50m into East
Wood. Pedestrian access is possible into the section of East Wood which lies
between Love Lane and the deer fence. In places, where the bank height is
lower, small informal pathways have breached the boundary. Several “keep out”
signs within the woodland are clearly visible from Love Lane.
Grounds for the application and conclusions
16.
Modification or discharge of the restriction is sought on grounds (a),
(aa) and (c) of section 84(1) of the Act. I consider each in turn.
Ground (a)
Under ground (a) the issue is whether by reason of changes in
the character of the property or the neighbourhood or other circumstances of
the case which the Tribunal may deem material, the restriction ought to be
deemed obsolete. Mr Sheikh said that, when the restrictive covenant was
entered into in 1989, the small section of the hospital buildings lying within
the boundary of the Red Land was in breach of the restriction because it was
within 20 feet of Love Lane. Since the restriction prevented the erection of
any building within 20 feet of Love Lane, it must have referred to future construction
and was meaningless if applied to existing structures, namely the hospital. He
submitted that the covenant was therefore obsolete so far as the existing
hospital buildings were concerned.
17.
Mr Sheikh referred to the closure of the hospital in about 1989, the
subsequent development known as Benjamin Court on the adjoining land and other
housing developments in the area, which he said had substantially changed the
character of the Red Land and the neighbourhood. Love Lane had now become
established as a clear boundary between the urban developments of Cromer to the
east and the rural character of the Cromer Hall Estate, including East Wood, to
the west.
18.
Mr Cabbell-Manners’s case on ground (a) was as follows. The covenant
was entered into for the benefit of part of the Cromer Hall Estate. At the
time the benefited land comprised a mixture of woodland and grassland and that
position had not changed. The purpose of the covenant was to restrict
development on the land adjacent to Love Lane and the Cromer Estate. It did
this by ensuring that properties were set back from Love Lane and further away
from the woodland. It had the effect of restricting the density of
development. When the covenant was granted the hospital was used to care for
the terminally ill. Since then there had been development in part of the
former hospital grounds by the building of Benjamin Court. That development
had not changed the character of the neighbourhood, since its use as sheltered
accommodation was similar to the former use of the hospital. It did not
infringe the restrictive covenant because, to the extent that Benjamin Court had been erected within the boundary of the Red Land, there were no buildings
within 20 feet of Love Lane. The neighbourhood in 1989 and at present included
the Cromer Hall Estate, in respect of which there had been no change of
character. It would be possible to convert the former hospital buildings without
infringing the restrictive covenant. It appeared that the application was
being made because such development was less attractive to the applicants as it
would limit the density of development. The covenant could not therefore be
regarded as obsolete. It continued to apply to all the Red Land and performed the function of restricting development on land adjacent to East Wood, which
was the original purpose of the covenant.
19.
At the end of Mr Cabbell-Manners’s evidence, I said that I found it
difficult to understand why, if the intention of the restriction was to protect
East Wood by limiting the number of occupiers of buildings on the Red Land, it
merely imposed a building line, rather than placing a restriction on the number
of units to be constructed on the Red Land. Mr Cabbell-Manners was unable to
explain the reasoning behind the choice of covenant, despite the fact that he
had been a party to the agreement. He merely pointed out that he was 21 years
old at the time, and had only recently taken over the running of the Estate.
20.
In my judgment the covenant was not imposed in order to protect East
Wood in the way Mr Cabbell-Manners suggested. If he had been concerned about
occupiers of neighbouring properties accessing his land via Love Lane, the
logical method of preventing them would have been to insist on a permanent
fence being erected on the Red Land and the Blue Land, providing a physical
barrier preventing access to Love Lane and the woodland beyond. If the
intention had been to restrict the number of dwellings to be built, the logical
approach would have been to make express provision to that effect in the Deed.
Instead, a building line was imposed. That had the effect of restricting the
section of the Red Land which could be built upon, but it did not limit the
overall density of such development, which would be governed by the
requirements of the developer and the local planning authority.
21.
I find that the purpose of the restriction was to regulate the layout of
the Red Land, by ensuring that any buildings to be erected upon it in future
would be set back some distance from Love Lane. The subsequent development of Benjamin Court has complied with that restriction which, in my opinion, is still capable of
performing its original function. The covenant is therefore not obsolete and
the application on ground (a) fails.
22.
I would add that there is in my view no force in Mr Sheikh’s submission
that the restriction was obsolete when it was first entered into insofar as the
former hospital buildings were concerned. As he himself pointed out, the
covenant related only to buildings to be constructed in the future. It was not
intended to, and did not prevent the continued use of the hospital buildings,
including the small proportion of those buildings which falls both within the
boundary of the Red Land and within 20 feet of Love Lane.
Ground (aa)
23.
There was no suggestion that the proposed user of the application land was
unreasonable or that the restrictive covenant did not impede that use. The
issues under ground (aa), therefore, are whether the restriction secures to the
objector any practical benefits of substantial value or advantage to him and,
if it does not, whether money would be an adequate compensation for any loss or
disadvantage which he would suffer from the proposed discharge or modification.
24.
Mr Cabbell-Manners’s case on this issue is this. Having been designated
a CWS, East Wood should be afforded greater protection than mere grazing land
or fields. Higher density development of the land surrounding East Wood would
lead to greater public access to that land by walkers, dogs, children etc. The
woodland management plan in the HLS agreement makes specific reference to the
risks of damage to the CWS by vandalism, and in particular the risk of fire to
woodland. Although Love Lane is a footpath the footfall on it is low, as most
walkers use Weaver’s Way which is not far away. There are not many houses on Love Lane, and very few have direct access onto that footpath. Restricting development on
the surrounding land would limit access onto the woodland and reduce the risk
of trespass and associated risks of damage, fire or vandalism. If the covenant
is varied it will set a precedent in respect of the remainder of the Red Land. If more buildings are erected close to East Wood, additional and/or more secure
fencing will be required to secure the wood, or additional costs would be
incurred on its upkeep and maintenance.
25.
Mr Phillips, on the other hand, expressed the view that the proposed
development of 25 residential units, considered as a whole, would not prevent
the management of the adjoining CWS under the HLS agreement, or affect any of
the features which the management of the land under the HLS agreement was
intended to benefit. There would therefore be no such impacts as a result of
the small part of the development lying within the boundary of the Red Land. In his opinion no specific protection measures or modifications to the planning
permission were required to maintain the ecological integrity of the adjacent
land and he did not anticipate that the proposed conversion works would have a
significant impact on species such as bats or nesting birds outside the curtilage
of the former hospital buildings themselves. In his view there was no
justification for the payment of any compensation to the objector.
26.
I regret that I did not find the objector to be a reliable witness. In
his second witness statement he said that he had not objected to the planning
application to convert the hospital buildings because he did not know about
it. Had he known about it he would have objected. In fact the application was
submitted in March 2005. On 13 May 2005 Mr Sheikh’s architect, Mr Bennett of
Marcus Bennett Associates sent plans of the proposed development to Mr
Cabbell-Manners’s agent, Mr Saffell of Brown and Co. In a letter dated 21 June
2005 Mr Saffell informed Mr Bennett that his client was
“not against the principle of development but we do need
to address the question of covenants and under what terms he is prepared to
release them.”
As I have said, planning permission was granted on 7 September
2005.
27.
The second reason for my doubts about Mr Cabbell-Manners’s reliability
is this. At the commencement of the hearing Mr Sheikh produced copies of the
1891 and 1914 conveyances, which imposed the original restrictions on the Blue
and Red Land. Ms Bleasdale expressed concern at the late production of these
papers. She added, no doubt on instructions, that her client had not
previously seen them because the Estate’s original title deeds had been
destroyed when its solicitors’ offices were bombed during the Second World
War. I pointed out that the original deeds, or copies of them, must have been
seen by the objector long after the war, when he agreed in 1989 to release the
Secretary of State from the 1891 and 1914 covenants so far as they benefited
the Estate. Ms Bleasdale said that she would return to the subject following
the adjournment, but she did not do so.
28.
Mr Cabbell-Manners emphasised that the whole object of the restrictive
covenant was to prevent unauthorised access onto the land which he stewards on
behalf of Natural England. He said that he had spoken to Natural England and
the Norfolk Wildlife Trust and that both were “significantly concerned” about
the proposal to remove the restrictive covenant. Rather surprisingly, although
Mr Cabbell-Manners instructed solicitors and counsel to present his objection, no
oral evidence from officers of either Natural England or the Norfolk Wildlife
Trust was called to substantiate their alleged concerns.
29.
Mr Cabbell-Manner did produce correspondence dated 28 May 2010 and 2
June 2010 which he had received from Ms Emily Swan, a senior land management
and conservation advisor with Natural England and Ms Helen Baczkowska, a
conservation officer with Norfolk Wildlife Trust respectively. Ms Swan said:
“Following our phone call on 27 May I am writing with
regard to the Woodland Management Plan at Cromer Hall. (I enclose a copy of
which with this letter).
As you will recall the in-depth plan which was issued as
part of your ELS/HLS agreement ref: AG00214150 was produced by Colin Hitchman
and I following our visit to the holding during which we looked specifically at
woodlands. It encompassed all the woodland on the holding which we deemed to
be eligible for restoration through HLS, under work code HC8. The aspirations
for which through HLS are listed below.
· Tree
species Oak, Beech, Birch and Sweet Chestnut should be present at irregular
spacings, with an overall canopy cover of between 50% and 90% of the area.
· Cover
of shrubs Hazel, Hawthorn, Holly should be between 10% and 50%.
· By
year 10, at least two of the following desirable woodland flora species
Bluebell, Moschatel, Ramsons, Wood Anenome should be at least occasional.
· By
year 10 newly regenerated Sycamore should be fewer than other desirable tree
species.
· A
network of rides and open ground should cover between 10% and 30% of the area.
East Wood is an important landscape woodland associated
with the historic landscape of Cromer and Cromer Hall within very close
proximity to the North Norfolk Area of Outstanding Natural Beauty. It is also
a County Wildlife Site which also contains archaeological remains. As such the
HLS option for this woodland carries multiple objectives. The archaeology must
remain protected, the character of the immediate local landscape preserved and
enhanced and the wildlife value of the woodland increased by restructuring and
replanting. It is expected that the work carried out throughout the life of
the HLS agreement will achieve these objectives during the course of the
agreement.
Based on the implementation of the HLS agreement I have
already seen at Cromer Hall, I am confident that the scheme will meet all its
objectives and deliver significant biodiversity, landscape, historic and public
access gains to Cromer Hall Farm.
I look forward to working with you
in the future at Cromer Hall.”
30.
Ms Baczkowska said:
“Many thanks for your phone call and concerns regarding
East Wood listed with us as County Wildlife Site 1200. I have attached a copy
of the description of the site and ought to take this opportunity to explain a
little about County Wildlife Sites (CWS). These are sites listed as being of
interest for wildlife in a county context, whereas Sites of Special Scientific
Interest (SSSIs) are sites of national interest; unlike SSSIs, the sites do
not have any statutory protection, although most local authorities recognise
the importance of the sites and will seek to protect them through the planning
process. Our view of the sites is that outside of the legally protected sites,
these are the best sites for wildlife in the county and that, put together with
SSSIs, they represent what is needed to maintain the wildlife of Norfolk at its current level.
It is also worth mentioning that most CWS, including woodland
such as your own, are habitats flagged up under the UK biodiversity action plan
process; this highlights habitats and species in need of protection and care
across the country and biodiversity is now taken into account when assessing
how development affects a site. Clearly one impact of development is not just
direct loss of a site, but disturbance from increased use and vandalism.
East Wood, CWS1200, was last looked at by NWT in 1996 and
represents a fairly typical Norfolk woodland, with some good ground flora. County Wildlife Sites in Norfolk are selected using very similar criteria to that used to
notify SSSIs and from looking at the description attached and our criteria, I
would say that the site easily qualifies as a County Wildlife Site. A site
cannot be de-designated unless it no longer fulfils the criteria and NWT and
Norfolk County Council would be the arbiter of such a decision; our criteria
have stood the test of planning enquiries and fulfil national guidelines set
for such criteria. Without visiting the site, I could not comment on any
changes made in recent years, but I would be willing to visit if you wish to
assess any changes; however, I understand that the site is managed under an
agreement with Natural England, hence I would imagine that any work taking
place has enhanced rather than adversely affected the site.
I think your request for a fence to protect the site from
illegal entry and damage is entirely reasonable and such protection is in fact
not an uncommon request when sites are affected by development.
Please let me know if I can be of
more help; I have copied this e-mail to my colleague John Hiskett who normally
deals with our planning casework and who would also be happy to help you
further.”
31.
It is to be noted that the e-mail from Ms Swan made no reference to the
proposed development at Fletcher Hospital. The only comments of potential
relevance in Ms Baczkowska’s e-mail were contained in the second and penultimate
paragraphs and related to potential disturbance and a protective fence. The
status of Ms Baczkowska’s communication was explained in a letter to Mr Sheikh
dated 16 February 2011 from Mr R Land, conservation manager with NWT, who said:
“Your letter has been passed on to me for a reply. Helen
Baczkowska’s correspondence that you copied to us is clear in that she is not
making specific comments about the site in question but is giving general
advice about County Wildlife Sites in the planning system. We do not therefore
agree that there is any inference that your development will have a negative
impact on the CWS. Similarly the comments about fencing are also of a general
nature and not specific to the site or proposed development.
Norfolk Wildlife Trust will deal with any impacts of
proposed development affecting a CWS through the planning system or after
consultation with owners and developers. This would only occur as part of site
visit in order to ensure that advice was relevant to the particular site.
There is no objection to the proposed development in Helen Baczkowska’s
correspondence.
I hope this clarifies matters.”
(Original emphasis)
32.
The documentary evidence produced at the hearing included a copy of the
Cromer Hall HLS woodland management plan which accompanied the HLS agreement.
It described the restoration to be undertaken in the relevant part of East Wood
in these terms:
“Coppice Sycamore. Leave mature
trees in 40-50m wide fringe against the eastern footpath to encourage bramble
growth and dense coppice re-growth. Place fence approx 30m into wood to allow
some public entry but restrict entry to main part of wood and restocked areas
to protect the conservation works. Turn fence back to path edge at southern
end. Enrich open areas within wood with Oak, Sweet Chestnut, Beech and
understorey species Hawthorn, Hazel, Rowan, Holly.”
33.
The Schedule of Works accompanying the HLS agreement indicated that
DEFRA would make a contribution of £1,120 towards the cost of the fencing in
East Wood. Mr Cabbell-Manners explained that this payment represented 20% of
the estimated cost.
34.
In answer to a question from me, Mr Cabbell-Manners said that the HLS
agreement was entered into with effect from 1 August 2006. He had previously
walked round the estate with a representative of Natural England and explained that
planning permission had been granted for the conversion of the former hospital
buildings, involving a breach of the restrictive covenant. In my view that
information is significant, for this reason. The requirement for the existing
fence was imposed by Natural England in the knowledge that there might in due course
be a further 25 residential dwellings immediately to the east of Love Lane. If Natural England had taken the view that those dwellings would increase the
risk of encroachment by members of the public onto East Wood, that risk would
have been reflected in the specification of their requirement for a deer fence
west of Love Lane. That fence is now in existence. It follows that the
proposed development appears to have been taken into account and protected
against, insofar as that may have been considered necessary by Natural
England. Consequently, the proposed modification (as opposed to discharge) of
the restriction will not of itself give rise to a need for any further or
improved fencing in East Wood.
35.
The foregoing observations assume that the erection of two flats on the Red Land would in fact give rise to a material increased risk of vandalism in East Wood. I
am satisfied that it would not. Love Lane is on one of 15 routes described in
a book published by Norfolk County Council for the information of people
interested in going for a walk in natural surroundings in the county. I find that
there would be no more risk of trespass onto East Wood by the occupiers of the
proposed development than anybody else in Cromer, and that such occupiers
would, if anything, be less likely to cause vandalism or fires in the wood than
visitors having no personal connection with the immediate area. It is clear
that, if the present application is refused, the applicants will submit a
further application for planning permission for 23 units on the unrestricted
part of the site, and that such permission is likely to be granted. The
suggestion that the construction of 25 residential units would result in the
need for more protective measures for East Wood than those that may be required
for 23 units is, in my judgment, fanciful.
36.
Ms Bleasdale submitted that the proposed modification, if it were
granted, would set a precedent for future applications to the Tribunal. I do
not agree. The circumstances of the present application are unique. They
relate to a small section of the Red Land, which contained a single storey
building within 20 feet of Love Lane when the restriction was imposed. If the
current application is successful that small area will in future contain a
building on two storeys. With one possible minor exception there were no
buildings within 20 feet of Love Lane on the remainder of the Red Land in 1989. Since then part of Benjamin Court has been constructed on the remainder of
the Red Land and that development has respected the building line. There was
no suggestion that the current use of Benjamin Court was likely to cease. If
it did, any proposal to redevelop its site in breach of the restrictive
covenant would be considered on its merits, but it is unlikely that the
Tribunal would consider that the unusual circumstances of the present
application offered a useful precedent.
37.
I therefore conclude that the restriction, in impeding the proposed user,
does not secure any practical benefit to Mr Cabble-Manners. For the same
reasons, I conclude that the proposed modification would not injure Mr
Cabble-Manners, so that ground (c) has also been established. It follows that
the question of compensation for any loss or any disadvantage suffered does not
arise.
38.
These conclusions relate to the proposed modification of the
restriction, but not to its discharge. The evidence at the hearing was
directed only to the impact of the construction of two flats on the Red Land. There was no evidence to indicate what would be the effect on the remainder of
the Red Land if the 20ft restriction were removed. The case for discharge,
therefore, has not been made out.
Postscript
39.
In the course of cross-examination Mr Phillips said that he had been
instructed that the proposed development would incorporate a fence separating
it from Love Lane. He accepted, however, that he had not tested the position
against the approved drawings. Mr Sheikh was unable to produce a copy of the
approved landscaping plan and it was therefore not possible for me to conclude
whether it would be physically practicable to construct such a fence.
40.
Following the hearing, and at my direction, Mr Sheikh wrote to the
objector’s solicitors on 16 March 2011, enclosing a copy of the approved
landscaping plan, No.2257-03a. He offered to covenant to build and maintain a
fence in accordance with that plan, such covenant to pass to his successors in
title. He said that he would insert a covenant in the leases of the flats and
the transfers of the houses, requiring the lessees/purchasers to contribute to
the cost of maintaining the fence. Mr Cabbell-Manners’s solicitors replied on
29 March, specifying the construction details and precise location of the
proposed fence that would be acceptable to their client. They added:
“As our client is accepting your offer … the only issue
between us remains one of costs.”
Mr Sheikh replied on 31 March. He said that he did not agree
that the only issue remaining was one of costs.
41.
Insofar as it is necessary for me to determine the matter, I do not
consider that this exchange of correspondence has resulted in a binding
agreement between the parties. I am satisfied, however, that the requirements
of paragraphs (aa) and (c) have been complied with, without the need to impose
a condition concerning fencing.
Conclusion
42.
The requirements of paragraphs (aa) and (c) having been satisfied, I have
power to modify the restriction. I do not consider that there is any reason why
I should not exercise my discretion to do so. Accordingly, I modify the
restriction in clause 4 of the Deed dated 10 May 1989 so as to permit the
applicants to implement the planning permission dated 7 September 2005 granted
by North Norfolk District Council under reference 01 20050527 PF for the
conversion of the former buildings at Fletcher Hospital, Roughton Road, Cromer
to 4 houses and 21 flats, or any subsequent permissions which are the renewal
of that permission and in accordance with details submitted to and approved by
the local planning authority pursuant to such permission.
43.
A letter on costs accompanies this decision, which will take effect when
the question of costs is decided.
Dated 14 April 2011
N J Rose FRICS
