3.           The restrictions were imposed by a deed dated 31 December 1945 between Sir Edward Barry Bt, then the owner of Ockwells Manor and the land surrounding it, and the Trust.  The deed was made pursuant to section 8 of the National Trust Act 1937, which enables the Trust to enforce the covenants against persons deriving title under the covenantor as if the Trust were interested in adjacent land and as if the covenant had been expressed to be entered into for the benefit of that land.  The land made subject to the restrictions (“the restricted land”) was Ockwells Manor itself and 260 acres of land surrounding it.  Specific restrictions related to the house and other buildings.  Other restrictions applied to the remainder of the restricted land.  They included the following covenants:

“1. No act or thing shall be done or placed or permitted to remain upon the land which shall prejudice affect or destroy the natural aspect and condition of the land.

3. No building shall without the written consent of the National Trust at any time be erected or allowed to remain on any part of the land.”

For the National Trust Mr John McGhee QC accepts that the first restriction is unenforceable, but this is of no moment for present purposes since restriction 3 alone is sufficient to prevent the development that the applicant wishes to carry out.

8.           In his decision of 20 February 1981 the Member (V G Wellings QC) in Re Bovis Homes Southern Ltd (LP/21/1979, 20 February 1981, unreported) dismissed the application.  In relation to ground (c) he noted (p 27) that a relevant fact was that Ockwells Manor had been unfurnished and unoccupied for some 12 years.  He said that he accepted the evidence of the Trusts’s witnesses that the proposed development would be very damaging to the house and its setting and would make the task of preservation of it more difficult.  He went on:

“I do not believe that the applicants’ proposed tree belt will improve the situation or indeed prevent the damage which the housing estate will cause to Ockwells Manor.  Any occupier of, or visitor to, or prospective purchaser of, the house would only have to take a stroll along the frontage on Ockwells Lane to perceive without difficulty even through the thickest part of the tree belt (more particularly if the trees are to be deciduous) the incongruity of the housing estate.  Notwithstanding the tree belt, the existence of the housing estate on the application land will, in my opinion, render the house almost certainly unmarketable and unoccupied for the foreseeable future.  I conclude that the Trust will be injured if the application land is built on.  I accept that some damage has already been done to the house by the existing development to the north of the application land but that is not a reason for increasing the damage.  I agree also that the view from the northern windows of the house is not perhaps the most important view but those windows do include one of the most important rooms in the house.  I do not accept that the proposed tree belt will obscure the housing development from those rooms even if the trees should be evergreen.  I really do not know to what extent the proposed tree screen would be successful nor how soon it would be established.”

9.           In relation to ground (aa) the Member expressed his conclusions as follows:

“As to paragraph (aa), the loss or disadvantage which the National Trust will, according to my findings, suffer from the proposed modification, is, in my view, not capable of being assessed in money terms.  On that ground alone the applicants’ case under paragraph (aa) fails also.  It also fails because, in my judgment, the restrictions in impeding reasonable user are not contrary to the public interest.  There are two public interests to be balanced one against the other: that represented by the National Trust and that represented by planning considerations.  I am quite unconvinced that the latter interest prevails.  I am not satisfied that there is a shortage of land in the locality although that matter is not entirely clear.  I am uncertain as to what pressures (if any) will be created if the planning permission for what is relatively low-density development on the application land is not implemented.  If non-implementation of it were likely to cause difficulties for the local planning authority in carrying out the Structure Plan policies I would have expected to hear evidence to that effect from that authority.  A witness from that authority, Mr Tupley, gave evidence but, on the contrary, said that the Structure Plan policies would not be damaged if the land were not released for housing.  In all the circumstances, the application, therefore, fails under paragraph (aa).”

11.        In his decision of 26 October 1992 in Re Thames Valley Holdings Ltd (LP/12/1991, 26 October 1992, unreported) the President noted the changes that had taken place since his earlier decision.  He said (at pp 4-5):

“My forecast that the house would almost certainly be unmarketable and unoccupied for the foreseeable future was not very successful because in 1983 Mr Brian Peter Stein purchased the house, the out-buildings, the stables, the great barn, the dovecote and various agricultural buildings together with between 45 and 50 acres of land.  Since then he, his wife and family have occupied the house, those buildings and the land…In or about 1986 Mr Stein planted a belt of conifers on the northern boundary of the curtilage of the Manor adjacent to the boundary wall along Ockwells Road.  The trees were fairly mature then, about 4 or 5 feet above the height of the wall.  The purpose of the trees was to block out the view from the house of the houses in Shoppenhangers Lane.  Mr Stein also planted a line of conifers along the eastern boundary of the land owned by him.  No application was made to the National Trust for its consent to the planting of the trees.  Within the land owned by him, Mr Stein has installed a swimming pool, a tennis court, a helicopter pad and additional stables.

Further in 1986 the applicant company planted a tree screen on the application land on the northern side of Ockwells Road facing the main entrance to the house.  The plantation is approximately 500 metres long and of variable width ranging from around 55 metres opposite the entrance to the house to approximately 25 metres at the western and eastern ends.  The plantation is surrounded by a low security type fence including barbed wire.  The northern boundary of the plantation is irregular but the southern boundary adjacent to Ockwells Road is relatively straight.  Additional planting took place within the tree screen in 1992.”

12.        The President recorded that on 11 June 1992 the company had executed a deed of settlement in respect of the tree screen, appointing trustees.  The trust was intended to last for 80 years from the date of the deed.  Then, having summarised the evidence of the witnesses on each side, including that of Mr Warren, the applicant’s architectural and planning consultant, the President went on (at pp 10-11):

“Mr Warren has not persuaded me that the application land has ceased to be part of the setting of the Manor by virtue of the tree planting which has taken place.  The setting of a building includes its approach and the northern approach to Ockwells Manor is historically and naturally the principal approach to it.  Persons approaching from the three roads which I have mentioned [Ockwells Road, Shoppenhangers Road and Coxgreen Road], the residents of the manor and the public at large, will not fail to be aware of the development if it takes place.  That development would be very damaging to the setting and quite incongruous.

Further the setting of the Manor is not to be judged solely in visual terms.  Moreover, I doubt whether the proposed development, if built, will be totally obscured by the tree screens from all points of view from within the house or its grounds.  As I understand it, it is not suggested on behalf of the applicant company that the development will be totally obscured before, at the earliest, 1996.  That is assumed to be the date by which the development could be expected to be completed.  Accordingly, during the period in which the development would be under construction, it would plainly be visible from the Manor.

The unilateral planning obligation and the deed of settlement do not, in my opinion, compel the inference that the tree screen planted by the company will be efficacious and of long duration.  I do not know whether the Royal Borough of Windsor and Maidenhead would wish to enforce the planning obligation.  The trust created by the deed will last no more than 80 years which is a short time in the life of this 15^th century Manor.  The trust appears to be a discretionary non-charitable trust and there is no means by which the National Trust could be sure that the trust would be enforced.  The National Trust is not one of the beneficiaries of the trust.  Moreover Clause 6 of the Deed appears to give the Trustees power to revoke the trust at any time during the perpetuity period of 80 years.”

21.        The present application relies on grounds (aa) and (c).  On ground (aa) the case is that the restriction impedes development that would constitute a reasonable user of the land and in doing so would be contrary to the public interest.  The public interest case is based on planning need, and it is the nature of the assessment of planning need that it changes over time.  In his decision 30 years ago Mr Wellings said:

“I am not satisfied that there is a shortage of land in the locality although that matter is not entirely clear.  I am uncertain as to what pressures (if any) will be created if the planning permission for what is relatively low-density development on the application land is not implemented.”

It is entirely plausible that the need for housing land in the locality has changed during the intervening period.  Inevitably the land that might now be considered for development will have changed.  And planning policy is different.  Moreover what is now proposed is not relatively low density development but a scheme producing many more houses.  Some of these would be affordable housing, the need for which was not under consideration in 1981.  Of course the parties’ planning experts will differ as to the implications of present planning policy and on the current need to release this land for development and consequently on whether it would be contrary to the public interest to prevent its development, but these are matters that cannot be said to have been decided by the 1981 decision. 

23.        I turn then to the Trust’s other contention, which relates specifically to ground (aa).  Subsection (1A) of section 84 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 Upper 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 person will suffer from the discharge or modification.”

Mr McGhee contends that ground (aa) should be struck out because the applicant cannot show that money will be an adequate compensation for the loss or disadvantage that the National Trust will suffer from the modification.  Although couched as preliminary issue in an order of 1 November 2010, it seems to me, like the Trust’s first contention, that it should be treated under rule 8(3)(c).  The question, therefore, is whether there is no reasonable prospect of the case of the applicant succeeding on ground (aa) because money would not be adequate compensation for the loss or disadvantage that the National Trust will suffer from the modification.

24.        The point arose in the decision of 20 February 1981, where Mr Wellings said (at 28):

“As to paragraph (aa), the loss or disadvantage which the National Trust will, according to my above findings, suffer from the proposed modification, is, in my view, not capable of being assessed in money terms.  On that ground alone the applicants’ case under paragraph (aa) fails also.”

He did not expand on or explain this conclusion, but it is to be noted that he had earlier quoted with approval what Lord Denning MR had said about the Trust’s power to enforce a covenant under section 8 of the 1937 Act in Gee v National Trust [1966] 1 WLR 170 at 174-175.  Having described the Trust as being, under the Act,

“the custodians of the natural beauty of our land, the cliffs and downs, fields and woods, rivers and shores; and of stately homes, historic buildings, cottages and barns,”

Lord Denning went on later to say:

“I am prepared to accept the view that the National Trust, where a covenant of this kind is made, is entitled to enforce it so as to protect the interests of which they are the custodians in this country.”

25.        In May 1988 in Re Martin (1988) 57 P & CR 119 the Court of Appeal had to consider an appeal against another decision of Mr Wellings under section 84 ((1987) 53 P & CR 146).  It concerned a restriction secured under section 37 of the Town and Country Planning Act 1962 (the equivalent provision to that in sections 52 and 106 respectively of the successor Acts of 1971 and 1990), providing that the application land should not be used other than as a private open space.  The respondent in the Court of Appeal was the local planning authority.  The Tribunal had rejected all three grounds on which the application had been advanced – (a), (aa) and (c) – holding in relation to (aa) that the restriction did secure to the council a practical benefit of substantial advantage, and going on ((1987) 53 P & CR 146 at 154:

“Moreover, in my opinion, money would not be an adequate compensation for the loss or disadvantage which the council will suffer if the restriction is discharged or modified as sought.”

26.        The Court of Appeal dismissed the appeal.  In the only reasoned judgment Fox LJ, with whom Balcombe LJ and Sir Frederick Lawton agreed, held in relation to each of the grounds that the Tribunal had been entitled to reach the conclusions that it had, and he went on ((1988) 57 P & CR 119 at 126):

“The member said that money would not be an adequate compensation to the corporation for the discharge of the covenant.  I think that must be right.  If the covenant is of value to the corporation for the protection of the public interest in the preservation of the amenities, it is difficult to see how a money payment could be adequate compensation.  Money compensation seems wholly inappropriate.”

32.        In many of the other Lands Tribunal cases in which it has been said that money would not be an adequate compensation for the loss or disadvantage suffered by a body considered to be a custodian of the public interest, Mr Barnes says, the point was either not argued or was unnecessary to the decision either because the application failed on ground (aa) for other reasons or because there was a finding that there would be no injury to the objector.  The exception, he recognises, is Re Quartley.  That case contained a restriction, imposed in a section 52 agreement, limiting the occupation of a house to those employed in agriculture.  In rejecting the application on ground (c) Mr Wellings said ((1989) 58 P & CR 518 at 525):

“…I am not satisfied that the proposed discharge of the restriction would not injure the council in its capacity as custodian of the public interest.  In that capacity, the council would suffer some injury from discharge of the restriction because loss of it would tend to increase, however slightly, the pressure on the council to permit the erection of a new house for occupation by an agricultural worker in the open country side, contrary to its planning policies.”

On ground (aa) he said that the practical benefits secured to the council were not of substantial value or advantage, but the application failed on that ground –

“…because I am unable to hold that money will be an adequate compensation for the loss or disadvantage (that is to say the injury which I have identified under paragraph (c)) which the council will suffer.”

Dated 16 August 2011

George Bartlett QC, President