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UPPER TRIBUNAL
(LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 128 (LC)
UTLC
Case Number: LP/21/2011
TRIBUNALS,
COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT –
modification – application to permit construction of single storey extension –
reasonableness – practical benefits – effects upon visual amenity – injury –
Law of Property Act 1925 section 84, grounds (aa) and (c) - application granted
and modification ordered
IN
THE MATTER OF AN APPLICATION UNDER
SECTION
84 OF THE LAW OF PROPERTY ACT 1925
BY
GERALD
BERNARD THOMAS
re:
18 The Brake, Brake Lane, Hagley,
Stourbridge,
West Midlands DY8 2XJ
Determination
on written representations
By:
P R Francis FRICS
Member,
Upper Tribunal (Lands Chamber)
DECISION
Introduction
1.
The applicant in this case, Mr Gerald Bernard Thomas, is the freehold
owner of 18 The Brake, Hagley, Stourbridge, West Midlands DY8 2XJ (the
application land). He seeks the modification of a restrictive covenant
burdening the land so as to allow for the construction of a single-storey side
extension to his house in accordance with a planning permission granted by
Bromsgrove District Council (ref: 09/0975) on 11 March 2010. The application
is made under grounds (aa) and (c) of section 84 of the Law of Property Act
1925 (the Act).
2.
An objection has been received from the directors of the Brake (Hagley)
Management Company Limited (represented by Mrs Diane Chambers, Company
Secretary). They are all admitted.
3.
In determining this application I have considered the papers submitted
to the Tribunal, including the application and notice of objection, the
statements of case of each side and a brief agreed statement of issues. I also
inspected the application land and the immediately surrounding area on 25 April 2012.
The Restrictive Covenant
4.
The land to which the application relates is the freehold of 18 The
Brake, Hagley, Stourbridge, West Midlands DY8 2XJ, registered at HM Land
Registry under title number WR73797 in a transfer dated 6 January 2003 between
The Brake (Hagley) Management Company Limited and Gerald Bernard Thomas.
Section 13 of the transfer relating to additional provisions states:
“The
Transferee so as to bind the Property into whosoever hands it may come
covenants with the Transferee for the benefit of the other parts of The Brake
to observe with the restrictive covenants set out in Schedule 3.”
Schedule 3
contains the following restriction:
“Not at any time without the prior consent
in writing of the Transferor to erect or place any additional building or other
permanent erection or shed on any part of the Property or to make any external
additions or alterations to the Property such consent not to be unreasonably
withheld or delayed.”
The application land and surrounding area
5.
18 The Brake comprises a modern, two-storey end terrace house of brick
cross-wall construction with weatherboard clad and glazed front and rear
elevations under pitched concrete tile covered roofs. It is located at the
entrance of a small L shaped cul-de-sac development of 18 houses built in about
1963 on the corner of Brake Lane and Sweetpool Lane on the western edge of
Hagley. Each of the properties on the development has the benefit of a garage
in a separate block.
6.
The area in which the application land is situated is a predominantly
residential suburb on the outskirts of Hagley, and the development of which 18
The Brake forms part is adjacent to Hagley Catholic High School, and opposite Haybridge High School. The local railway station is nearby.
Applicant’s case
7.
Mr Thomas said that he purchased the residue of a 99 year leasehold
interest in 18 The Brake in 1993. In 2001/2 the residents of the development
appointed solicitors and an agent to advise them in respect of acquiring the
freehold of their properties. The agent advised the setting up of a management
company into which the freehold of the whole development would be transferred,
following which individual freeholds could be sold to the existing occupiers,
but the former common areas would be retained by the company with individual
property owners contributing to the usual maintenance obligations.
8.
The agent’s initial letter of advice to one of the residents dated 25 May 2001 included the following paragraph:
“You are probably aware that we have been
approached by Mr G B Thomas of No.18 who wishes to buy the strip of land
between his west wall and Sweetpool Lane and put it as part of his garden. This
is the only house that has this additional land which is not technically a
common part and I see no objection thereto and nor do the solicitors provided a
reasonable contribution is made by Mr Thomas for that property which could
enhance the value of his own house. This is something the rest of you may
need to consider as well but you are being properly advised thereof.”
9.
Following the setting up of the management company, and the purchase of
the freehold of the whole development, Mr Thomas said in his initial statement
of case that in 2002 he purchased the strip of land from the management company
and later, in January 2003, he purchased the freehold of the original house and
garden forming 18 The Brake. All the other residents of The Brake also
purchased their freeholds, apart from No. 1 where the freehold remains with the
management company. However, in a note to the Tribunal dated 15 December 2011 issued in response to the objectors’ statement of case, Mr Thomas
corrected his statement regarding the purchase of the strip of land. He said
that
“[t]he land
was not purchased but simply confirmed as being part of No.18. This had
always been my view of the ground and when the freehold opportunity arose it
was an obvious step to take to confirm it as such. This I did in 2001. The
status of the ground was confirmed in writing to the management company by the
professional advisers engaged to negotiate terms for the freehold transfer of
The Brake…The token £100 was offered and accepted simply to acknowledge others’
interest in the ground as a part of The Brake.”
At the site inspection, at which Ms Chambers
was also present, he said that the nominal contribution to the management
company of £100 was to “acknowledge and confirm” that the additional strip of
land had been transferred to him.
10.
Mr Thomas said that subsequently, in 2005, he obtained planning consent
for a single-storey side extension which would be located upon the strip of
land he had acquired. In accordance with the provisions of the restrictive
covenant, he said he sought the management company’s consent in 2007, but this
was not forthcoming. In 2010, the planning permission was renewed and further
attempts were made to obtain the management company’s consent, including an
offer of £300 and the offer of the use of the new room for management meetings
“if it was required.” Following a secret ballot which voted 10 to 6 against
the proposal, an application under section 84 of the Law of Property Act 1925
for modification of the restriction was made to this Tribunal on 13 October 2011.
11.
It is Mr Thomas’s view that the management company’s consent is being
unreasonably withheld. He gave, in his additional note, examples of where the
management company had permitted alterations to existing structures such as
allowing the replacement of flat roofs to the front outriggers with single
pitch tiled roofs. He said the existence of the restriction inhibits
reasonable use of the land. The proposed extension would not be within line of
sight from any of the other properties on The Brake, and there would therefore
be no affect upon anyone’s privacy. Its construction and use would not injure
any of the beneficiaries and any noise or disturbance during construction works
would be minimal, the extension being shielded from the rest of the development
by the west wall of his house. Mr Thomas said that, in his opinion, the
restriction does not secure any practical benefit of substantial value or
advantage to any person.
Objectors’ case
12.
The objectors said that the modification should not be granted as the
proposed extension constituted an unreasonable use of the land. The Brake was
designed by an architect of some merit, and local estate agents’ particulars
had described The Brake as an award winning development. The concept of it
was as a development of 18 three bedroom houses all of more or less identical
in size, and the extension sought would create a fundamental change to the
appearance of The Brake. Furthermore, No.18 adjoins the highway, and so the
extension will be highly visible and prominent. The land, it was said, was
intended to be used as garden ground, and should remain that way. Further
development on The Brake could also have an impact upon parking, which was
already in short supply.
13.
The covenant, it was said, had been imposed to protect The Brake against
unwanted change, and granting this application could “open the floodgates” for
further applications and with the result that the management company’s control
over what could and could not happen would be lost forever.
14.
Ms Chambers said that the management company had permitted conservatory
extensions elsewhere on the development, and acknowledged that permission had
also been granted where it had been sought, for residents to replace the flat
roofs of their entrance porch/cloakroom areas with sloping tiled roofs. These
were considered to be minor alterations, whereas what the applicant was
proposing was of much more significance. The company’s reticence in the matter
of this application was, she said, also a matter of principle because of the
way Mr Thomas came by the land, and the fact that he would be benefiting from
the increased development, which had not been the intention when the land was
transferred. She thought that the land had been transferred at a nominal
figure on the understanding that it would be used only as garden ground, and
that it would never have been sold for development purposes. The offer by Mr
Thomas of £300 was derisory. However, it the Tribunal was minded to grant the
application, a more appropriate payment, reflecting a proportion of the development
value, should be made to the company.
15.
In all the circumstances, the objectors said that that it was reasonable
to refuse consent to the proposed development.
Conclusions
16.
I deal firstly, and shortly, with the question of how the applicant came
by the freehold ownership of the strip of land upon which he now wishes to
build an extension. It appears that there is some dispute as to whether or
not that land was formerly a part of the common areas which the leasehold
owners of the properties on The Brake used to maintain under informal
arrangements, and whether it was acquired separately or had always been within
the defined boundaries of No.18. This is not a matter which concerns me in
the determination of this application, but I note that (a) the freehold of the
whole of 18 The Brake and the strip of land to the side was transferred to Mr
Thomas in a single transfer (Land Registry title No. WR 73797) on 8 January 2003 and (b) as is apparent from the plan dated 1 July 2002 forming part of Title No. HW 108656 which shows the whole of The Brake, the land in question was
shown as forming a part of No.18 and was not shown as part of the common areas
(which are shaded green thereon). For the purposes of this determination,
the application land clearly includes the strip of land to the west of the main
structure, and is burdened by the restriction.
17.
The grounds upon which the application was made are set out in section
84(1)(aa) and (c) of the Law of Property Act 1925 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”.
18.
Firstly, in connection with ground (aa), there is no doubt in my mind
that the proposed extension constitutes a reasonable use of the application
land, being a simple and straightforward single-storey extension to a
residential dwelling, and no evidence was adduced which, in my view, supports
the argument that such a use would be unreasonable. That the continued
existence of the restriction impedes such use is not in question. The Brake is
a small modern development of traditionally designed and constructed houses
with garages in separate blocks which was described by the objectors as of
particular architectural merit. Whilst I acknowledge and appreciate the
objectors’ opinions, The Brake does not seem to me to offer such significant
qualities of uniqueness or individuality as provide a reasonable ground for the
management company’s refusal of consent.
19.
I accept the applicant’s statement that the proposed extension will not
be directly visible from any of the other properties on The Brake, and the fact
that it will be seen from Sweetpool Lane is, in my view of little if any
consequence. The layout of the development, it appears to me, is such that
none of the other properties have land to the side of sufficient size to allow
for a similar extension, and I do not therefore accept the suggestion that
granting this application would be the thin end of the wedge, and open the
floodgates to many more applications of a similar nature. I am satisfied for
these reasons that the restriction does not secure to the objectors’ benefits
of substantial value or advantage, and the application under ground (aa) is
thus made out.
20.
That being the case, the question of injury under ground (c) does not
need to be considered, although I would state here that whatever my conclusions
had been under ground (aa), I can see no way in which the proposed modification
could cause injury to the objectors.
21.
The application therefore succeeds, and adopting the discretion afforded
to me under the Act I determine that the restrictive covenant be modified so as
to permit the proposed development upon the application land in accordance with
the planning permission granted by Bromsgrove District Council on 11 March 2010
under reference 09/0975.
22.
No evidence was produced in support of the objectors’ suggestion that,
if the modification were granted, the management company should receive a
proportion of the additional development value, and I make no finding,
therefore, in that regard. It was not suggested, apart from this, that
compensation should be paid to those with the benefit of the covenant, and I do
not consider that they will suffer any loss or disadvantage by reason of the
modification that would make the payment of compensation appropriate.
DATED 4 May
2012
P R Francis
FRICS
