UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2013] UKUT 34 (LC)

UTLC Case Number: LP/2/2012

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

RESTRICTIVE COVENANT – modification – building scheme – proposed development of dormer bungalow – whether a precedent for similar development elsewhere on estate – density and layout – whether practical benefits of substantial value or advantage to objectors – application refused – Law of Property Act 1925 s84(1)(aa)

 

 

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925

 

 

BY

RAYMOND VICTOR WALSH AND DIANA JANE WALSH

 

 

 

Re: Land on the east side of Bowen Road,

Rugby,

Warwickshire,

CV22 5BB

 

 

 

Before: A J Trott FRICS

 

Sitting at: 43-45 Bedford Square, London WC1B 3AS

on 6 December 2012

 

 

 

 

Aaron Walder, instructed by Cannings Connolly, for the applicants

The objectors did not appear and were not represented

The following cases are referred to in this decision:

Gilbert v Spoor [1983] 1 Ch 27

Stockport Metropolitan Borough Council v Alwiyah Developments (1983) 52 P&CR 278

Re Bass Ltd’s Application (1976) 26 P&CR 156

Re Bromor Properties Ltd’s Application (1995) 70 P&CR 569

Re Lee’s Application (1996) 72 P&CR 439

Re Turners’ Application [2005] LP/45/2003 unreported

Dobbin v Redpath [2007] EWCA Civ 570

Shepherd v Turner [2006] 2 P&CR 28

The following cases were referred to in argument:

Re Barry’s Application (1981) 41 P&CR 383

Re Kalsi’s Application (1993) 66 P&CR 313

 

 

DECISION

Introduction

1.           Mr Raymond Walsh and Mrs Diana Walsh (the applicants) are the freehold owners of a plot of land situated on the east side of Bowen Road and to the rear of 204 Hillmorton Road, Rugby, Warwickshire CV22 5BB (the application land).  They wish to develop the application land for a new dwelling, described as a dormer bungalow.  Planning permission for the erection of a dwelling was first granted in July 1989 and was subsequently renewed in 1994, 1999 and 2004.  Approval of details and materials was granted in June 2008.  On 21 October 2009 the local planning authority confirmed in writing that a substantial start had been made on the development and that the planning permission had been implemented.

2.           The application land originally formed part of an estate of some 54 acres that was known as Brown’s Farm.  In 1922 the owners of Brown’s Farm sub-divided the estate into lots with a view to selling them for residential development.  There was a total of 306 such lots.  By a deed of covenant dated 8 June 1922 the purchasers of various lots covenanted for themselves and their respective heirs and assigns to perform and be bound by the covenants contained in the First Schedule to the deed.  These covenants apply to the application land which comprises part of lots 16 and 17.

3.               The relevant covenants for the purposes of this application are covenants 13 and 14 of the First Schedule.  These state:

“13. … not more than one house with the necessary outbuildings thereto to be erected on any other Lot on this Estate [including lots 16 and 17]… the houses to be erected on any Lot are to be detached or semi-detached only.

14. No part of any dwellinghouse or building to be erected on any Lot (except bay windows and porches) may be erected in front of the building line shown on the said plan but such dwelling houses and buildings need not be set up to such building line.”

4.           On 19 December 2011 the applicants made an application under section 84 of the Law of Property Act 1925 seeking the modification of restrictive covenant 13 so as to enable the dormer bungalow to be completed under the implemented 2008 planning permission.  The applicants relied upon ground (aa) of section 84(1) of the 1925 Act.

5.           There are seven objectors to the application: Mrs Mirian Masters, 29 Warren Road; Mr Michael Griffin, 2 Bowen Road; Mr and Mrs E M Moffatt, 206 Hillmorton Road; Mr Nicholas Dennis, 204 Hillmorton Road; Mr A M and Mrs D Laws, 200a Hillmorton Road; Mr R T and Mrs B E Anthony, 43 Warren Road; and Mr D Harrison and Miss Alison Prestidge, 31 Warren Road.  Two further objections were withdrawn prior to the hearing.

6.           Mr Aaron Walder of counsel appeared for the applicants and called both of the applicants as witnesses of fact.  Mr Eugene McGunigal MRICS, Manager of the Surveying Department in Loveitts Limited of Warwick Row, Coventry, produced an expert report but was not called to give oral evidence.

7.           The objectors did not appear and were not represented.

8.           I made an accompanied visit to the application land on 12 December 2012.  I also made an accompanied viewing of the application land from the inside and the rear garden of 204 Hillmorton Road and from the rear garden of 206 Hillmorton Road.  I made an unaccompanied inspection of the remainder of the Brown’s Farm Estate.

Facts

9.           I find the following facts from the evidence and from my site inspection.

10.        The application land is located in a well-established residential area approximately 1.5km south east of Rugby town centre to which access is readily available from the nearby A428 Hillmorton Road.  It is close to the M1 and M6 Motorways.  Access to Coventry and Birmingham is also available via the A45 a short distance to the south.

11.        The application land is a level plot of some 0.07 Ha (0.18 acres) of vacant land with a frontage to the east side of Bowen Road of approximately 32m.  To the south there is a boundary with 1 Bowen Road of some 19m and to the north there is a boundary with 204 Hillmorton Road of some 23m.  The boundary with 206 Hillmorton Road to the east is irregular in shape and measures a total of approximately 33.5m.  The northern and southern boundaries are formed by 2m high close boarded wooden fences.  The eastern boundary to No.206 is formed by a dilapidated wire fence and a shrub and tree screen.  Along the frontage to Bowen Road is a temporary security fence formed from panels of heavy gauge galvanised tube with welded mesh infills.

12.        The planning application plan showing the proposed development also shows the position of a number of existing trees situated on the application land.  With the exception of a pine tree near the boundary with 1 Bowen Road all of the eight trees shown along the boundary fronting Bowen Road have been cut down.  The plan shows a screen of dense laurel, holly and conifers along this frontage as “to be retained”.  That screen has also been removed.  Two of the five trees shown on the plan along the boundary with 1 Bowen Road have been cut down, as has the apple tree shown in the “garden amenity area” of the proposed dwelling.  The plan also shows a new landscaping and planting area along the boundary with 204 Hillmorton Road.  But this is shown to the north of the boundary fence, within the curtilage of No.204, and is therefore outside of the control of the applicants.  It has not been implemented.  The application land is presently vacant and overgrown with some fence panels and other building rubble piled at different points.

13.        The proposed development comprises a two storey dormer bungalow located at the north of the application land.  On the ground floor there would be a lounge, a dining room, a kitchen and a bedroom with an en-suite bathroom.  A conservatory is shown on the plan with access from the bedroom, but at the hearing the applicants said that they no longer proposed to construct it.  There would also be an integral garage, the side wall of which would abut the boundary with 204 Hillmorton Road for a length of approximately 6m.

14.        On the first floor there would be two further bedrooms, both with dormer windows facing westwards towards Bowen Road.  There would be a small storage room leading off bedroom 2.  To the rear of the proposed dwelling there would be a bathroom.  Both the storeroom and the bathroom would have velux windows. 

15.        A new vehicular access would be constructed onto Bowen Road at the north of the application land adjoining the boundary with 204 Hillmorton Road.  There would be a driveway and a turning area.  To the rear (east) and side (south) of the proposed dwelling there would be a garden.

16.        The distance between the nearest point of the proposed dwelling (the integral garage) and the rear elevation of No.204 would be some 16m and that between the nearest point of the proposed dwelling (the lounge) and the side elevation of 1 Bowen Road would be some 21m.  If the conservatory were not built the closest point of the proposed dwelling to the boundary with 206 Hillmorton Road would be some 5m.

17.        The proposed dwelling would have a two storey central section, over 10m wide, with a pitched roof approximately 8m high to the ridge.  On either side, with a width of some 4.5m each would be two single storey areas: the lounge (to the south) and the garage (to the north).  These parts of the dwelling have separate pitched roofs both of which would be approximately 6.5m high to the ridge. 

18.        The north eastern elevation of the proposed building, which faces 204 Hillmorton Road, would only have one window, an obscure glazed window to the ground floor en-suite bathroom.  The blank gable end wall of the garage and, behind it, the blank gable end wall of the two storey section of the house would therefore face No.204.

19.        The south eastern elevation of the proposed dwelling would face the rear garden of 206 Hillmorton Road.  There would be ground floor windows in the lounge and main bedroom.  The windows at first floor level would be high level velux windows serving the bathroom and storeroom.

20.        The applicants accepted that the deed of covenant dated 8 June 1922 constituted a building scheme in respect of the Brown’s Farm estate, the terms of which were established by the covenants in the First Schedule to that deed. 

The case for the applicants

21.        Mr Walsh explained that his wife’s grandparents had originally acquired lots 16 to 19 (fronting Hillmorton Road) and lots 54 to 58 (fronting Warren Road) in the 1920s.  These lots formed a contiguous block fronting Bowen Road to the west.  Three houses were subsequently built on the four lots 16 to 19.  These houses are now known as 204, 206 and 208 Hillmorton Road.  The curtilage of No.204 extends in width to all of lot 16 and about half of lot 17; the remainder of lot 17, including an irregularly shaped piece of land at the south eastern corner, now forms part of the curtilage of No.206 which also includes lot 18 and parts of lots 52 to 57.  Mr Walsh said that No.208 was built approximately five years ago and, according to the notes to the Charges Register of the Office Copy Entry, formed parts of lots 17 to 19 and lots 51 to 57.  (From the adduced plans it appears that No.208 was in fact built on lot 19 and, possibly, a small part of lots 52 and 53.)

22.        Mr Walsh said that the current boundaries bore little resemblance to the original estate layout plan because of sub-divisions made following the acquisition of blocks of lots.  In this corner of the estate, as elsewhere, the original layout had been lost.  Mr Walsh gave two examples where, he said, the covenant (No.13) had been broken: at the junction of Hillmorton Road and Percival Road and at the junction of Bowen Road and Warren Road, where two houses instead of one had been developed on lots 4 and 193 respectively.

23.        Two houses (204 and 206 Hillmorton Road) had been built on three lots (Nos. 16, 17 and 18) whereas the original building scheme layout had intended there to be a total of three houses on these lots.  If the present application were granted it would therefore result in the development of three houses on three lots and there would be no increase in the density of development that was intended under the building scheme.

24.        In response to a letter dated 11 August 2012 from Mr Dennis, the objector living at 204 Hillmorton Road, Mr Walsh denied being in breach of covenant 13 by implementing the planning permission by means of putting in foundation footings.  He also rejected Mr Dennis’s comment that he had caused harm to protected wildlife in the process of constructing the footings.  Mr Walsh produced a copy of a survey that the applicants had commissioned in May 2008 to ascertain whether there were great crested newts on the application land.  No evidence of their presence was found and Mr Walsh was unaware of any other protected species that might be affected by the proposed development.

25.        Mr Walsh said that the applicants only wanted to modify the covenant to allow them to develop a bungalow for which they had planning permission.  The proposed user was reasonable and the proposed bungalow would be proportionate and in character with the locality.  Covenant 13 impeded that reasonable user but in so doing it did not secure to the objectors any practical benefits of substantial value or advantage.  The application land was rather unsightly as a vacant plot and lessened the security of the adjoining properties.  Mr Walsh said that any loss or disadvantage that the objectors might suffer as a result of the modification of the covenant could be adequately compensated by a monetary payment.

26.        Mrs Walsh confirmed that she supported the witness statement of her husband and that she believed its contents to be correct.  She did not know of any properties, other than those identified by her husband (see paragraph 22 above), where more than the designated number of houses had been built on a lot forming part of the building scheme.

27.        Mr McGunigal was not called to give oral expert evidence.  Mr Walder explained that Mr McGunigal’s evidence was unchallenged by the objectors, none of whom had submitted witness statements despite having had the opportunity to do so, and that it was therefore unnecessary for him to appear.

28.        In his expert report Mr McGunigal reviewed the description and location of the application land.  He noted the objections to the application and then considered the effect of the proposed development on the value of the objectors’ properties, only one of which, 204 Hillmorton Road, he considered to be adversely affected by the proposals.  The rear elevation of No.204 was 16m from the proposed new building and Mr McGunigal considered that because there were no windows in the side elevation of the proposed dwelling “any loss of privacy [to No.204] is going to be quite limited.”  He concluded that “a modest or nominal payment of up to about £2,000” would be appropriate compensation for any loss or disadvantage caused to the owners in No.204 were the modification to be allowed.  He did not believe that the proposed development would have any adverse impact on the value of any of the other objectors’ properties.

29.        Mr McGunigal stated that a prospective purchaser of a property that shared a boundary with the application land would weigh the advantages of having the site vacant, such as a quiet environment and open views against the disadvantages which he considered could “pose several notable problems.”  He thought that the security of neighbouring properties might be compromised by the easy access that was available across the application land.  The proposed dwelling and a properly cultivated garden would offer increased security and would reduce, if not eradicate:

 “any current/potential problems that may arise from vermin [mice, rats, squirrels, domestic/feral cats and urban foxes], fly-tipping, illegal occupation and Japanese Knotweed.”

30.        The Tribunal noted that Mr McGunigal’s evidence had been directly challenged by Mr Dennis, the owner of 204 Hillmorton Road, in his letter to the Tribunal dated 11 August 2012 to which Mr Walsh referred in his second witness statement dated 25 November 2012.  Mr Walder said that Mr Dennis’s letter had criticised Mr McGunigal for reaching conclusions about the limited impact of the proposed development on his property without having been inside it.  Mr Walder submitted that Mr Dennis’s objection had not been based upon any detrimental effect upon the interior of his house but was concerned with the asserted loss of amenity to his garden.  Mr McGunigal had reached his conclusions based upon the design of the proposed development as shown on the plans and elevations.  The impact of that development would be unique and would not be assisted by comparables, of which none were available in any event.  The proposed dwelling had not been constructed and therefore Mr McGunigal would not have been assisted in his deliberations even if he had been inside No.204.  There was no new dwelling to see.  Mr McGunigal had undertaken a reasoned paper exercise which, in the absence of the proposed building, was necessarily hypothetical.

31.        Mr Walder then addressed each of the objections through submissions.  He said that Mr Laws’ objection was an unfounded concern about the effect of the proposal as a precedent.  The application could be distinguished from other such applications involving building schemes.  The current proposal was simply to give effect to the original intention of the building scheme which was that three houses should be constructed on the three lots 16 to 18.  Only parties who were in the same unusual position as Mr and Mrs Walsh could treat the proposal as a precedent; they would also have to own land that flanked two of the original lots.  The proposal was designed carefully and was appropriate to its setting; it would not be a precedent for the development of other land within the building scheme.

32.        Mr McGunigal had accepted that there would be some small detriment to No.204 (Mr Dennis) but this would be adequately compensated by money. 

33.        Mr and Mrs Moffat (206 Hillmorton Road) had objected on the grounds that light, privacy, the limited density of development and quiet would all be adversely affected by the proposal.  The substantial tree screen between the properties meant that light and privacy would not be an issue.  The two houses would not directly face each other and the proposed dwelling would not be as close to Mr and Mrs Moffat’s boundary as they suggested because it was no longer proposed to build the conservatory.  The objection about density was a re-statement of the argument about setting a precedent that had already been addressed.  The objectors adduced no evidence about noise levels and the addition of a single dwelling would have no discernible impact on ambient noise levels.

34.        The objections from Mr Griffith, Mrs Masters, Mr Harrison and Miss Prestidge and Mr and Mrs Anthony were also concerned with precedent.  Mr and Mrs Anthony also suggested that the proposal would represent over-development.  Mr Walder said that the grant (and renewal) of planning permission was a clear indicator that the proposed dwelling was a reasonable user and that it did not constitute such over-development.

35.        Mr Walder contrasted the view of a vacant, undeveloped piece of land that would be protected if the application were refused with the preservation of views across what he referred to as areas of outstanding natural beauty that had been preserved in other cases such as Gilbert v Spoor [1983] 1 Ch 27 (a view over the Tyne Valley) and Stockport Metropolitan Borough Council v Alwiyah Developments (1983) 52 P&CR 278 (a view over the Goyt Valley).  The scale of amenity had to be taken into account and in the present application none of the objectors enjoyed the type of view that could properly be said to amount to a practical benefit.

36.        The proposal would not threaten the identity of an established estate.  The development of an additional dwelling would not increase the intended density of three houses on lots 16, 17 and 18.  The applicants had demonstrated that the estate’s layout had changed considerably since the 1922 lot plan had been prepared.  If there had already been considerable change the covenant could not be said to be of substantial advantage.

The case for the objectors

37.        Two of the objectors (Mr Dennis and Mr and Mrs Anthony) notified the Tribunal and the applicants that they would not be attending the hearing.  None of the objectors submitted a witness statement.  Their objections consisted of their response to the grounds of the application as contained in their notices of objection.  Mr Dennis also wrote to the Tribunal on 11 August 2012, commenting on the “documentation produced by Mr Walsh and his team”.  (This letter was referred to in Mr Walsh’s second witness statement).

38.        All of the objectors stated that the proposed development would set an adverse precedent for future development on the estate.  Mrs Masters feared that any further development would involve the loss of habitat for wildlife.

39.        Mr Dennis stated in his objection that he had told the applicants before they purchased the land that he wanted the covenant to remain because it secured privacy and allowed unrestricted light to reach his property.  If the application were successful the proposed development would restrict the level of light to his back garden, affect his privacy while in the back garden and also affect the views to the rear of his property.  It would also increase noise levels.  He reiterated these points in his letter dated 11 August 2012 and rejected Mr McGunigal’s opinion that the proposed development would only have a limited impact in terms of loss of privacy and upon the open aspect at the rear of No.204.  Mr McGunigal had not been inside Mr Dennis’s house and therefore he could not properly judge the impact of the proposal upon its occupants.  Mr Dennis considered that Mr McGungial’s estimate of compensation was too low and proposed a figure of £5,000. 

40.        Mr and Mrs Moffat stated that the proposed development would adversely affect the light, privacy and quiet of their property at 206 Hillmorton Road.  The proposed development was a two storey dwelling with a ridge height of about 7.5 metres.  That would affect the level of light entering their garden, especially in the afternoons and evenings.  The ground and first floor windows would look directly onto the garden of No.206 thereby reducing its privacy.  The closest point of the new dwelling (as evidenced by the construction of the footings) was only 3.5 metres from their boundary.  The bush and tree screen separating the application land from No.206 had been cut back by the applicants.  This would accentuate the visual impact of the proposed dwelling, both in terms of loss of privacy and the increase in development density.  The proposal would increase the density of housing beyond the one house per plot required by the covenant.  The covenant was not obsolete and had operated successfully across the estate; it was difficult to identify specific instances where the covenant had not been observed.  The proposed development would place two houses on lot 16.  Furthermore there were no other instances in the original layout of the estate where a house would directly overlook the garden of another house from the side.  The proximity of the new dwelling would also result in an increase in noise.  A monetary payment could not compensate for the loss of valuable green space or the suburban environment.  But if the application were successful Mr and Mrs Moffat stated that the approximate amount of such compensation should be £10,000.

41.        Mr and Mrs Anthony stated that the modification of the covenant would allow the over-development of the estate which the covenant was intended to prevent.  The proposed development would therefore not be a reasonable user of the land.  Money would not be an adequate compensation for any loss caused by the precedent for other development that the modification of the covenant would create.  The limitation of further development and the maintenance of the open character of the neighbourhood were both substantial practical benefits to the objector.  The Tribunal should take account of any planning permission on neighbouring properties in the context of the purpose of the covenant to avoid over development of the estate.

Conclusions

42.        The application for modification of covenant 13 is made solely under ground (aa) of section 84(1) of the 1925 Act.  In considering the application I adopt the series of questions that were first set out by the Lands Tribunal, J Stuart Daniel QC, in Re Bass Ltd’s Application (1976) 26 P&CR 156:

1.     Is the proposed user reasonable?

2.     Does the covenant impede that user?

3.     Does impeding the proposed user secure practical benefits to the objectors?

4.     If the answer to question 3 is affirmative, are those benefits of substantial value or advantage?

5.     If the answer to question 4 is negative, would money be an adequate compensation?

In Re Bass there were two further questions arising from section 86(1A)(b) (public interest).  These are not relevant in this application as the applicants do not rely on that provision.  (Mr Walsh referred in his first witness statement to it being against the public interest to prevent new homes being built for which planning permission had been granted, but Mr Walder in his skeleton argument said in terms that “this [public interest] consideration is not relevant for this dispute” and it formed no part of the applicants’ case as presented at the hearing.)

Is the proposed user reasonable?

43.        The proposal is for the erection of a dormer bungalow for which planning permission has been granted.  This use is consistent with the residential nature of the estate and the surrounding area.  In my opinion the proposed user is reasonable.  (Mr and Mrs Masters appear to have misunderstood this section of the 1925 Act; it requires a consideration of whether the proposed user is reasonable, not whether the covenant which the applicants seek to modify is reasonable).

Does the covenant impede that user?

44.        The covenant (as it applies to the application land) restricts development to one house per lot.  The proposed development spans lots 16 and 17.  This would mean that there would be more than one house (or part of one house) on each of those lots.  The covenant therefore does impede the proposed user.  At the hearing I raised the possibility that covenant 14 might also impede the proposed user (see paragraph 3 above).  Lot 16, being a corner plot, is affected not only by the building line shown along Hillmorton Road but also by the building line shown along Bowen Road.  But there are no dimensions shown on the 1922 deed plan for the location of the building line and the elevation of the proposed dwelling that would front Bowen Road is set back by some 7.5 metres (ignoring the porch).  It seems probable that the proposed dormer bungalow, as shown on the adduced plan, would not breach this building line restriction.  The applicants confirmed after the hearing that they were not seeking to modify covenant 14.

Does impeding the proposed user secure practical benefits to the objectors?

45.        In considering this question and the next I have had regard to the fact that the application land is subject to a building scheme.  The effect of a building scheme was considered by the Court of Appeal in Gilbert v Spoor [1983] 1 Ch 27.  Waller LJ said at p35A:

“The restriction with which this case is concerned… has to be treated as a covenant within a building scheme or, as it is sometimes said, as local law.  The effect therefore was that the covenant to build only one house on the land edged red on the plan and belonging to the applicant was a covenant for the benefit of all other purchasers of land within the building scheme or their successors in title.  As between each of these owners, including the applicant, there were mutual rights and mutual obligations.  These rights and obligations were for the benefit of the whole estate.  Each owner would be aware of the restrictions imposed on the other owners including the restriction imposed on the applicant.  These restrictions would influence and control the development of the whole estate.  Accordingly if the restriction remains in force, the objectors or other owners of land within the building scheme could enforce the restriction.

…

If on a building estate a restrictive covenant is broken by any plot-holder it is potentially an interference with the rights of all the other plot owners.  It may be such that it is a momentary irritation to the owner of the land some distance away.  The nearer it is the greater the possibility of it being an interference with the amenities of owners.  If a building estate contains a pleasant approach with restrictions upon it and some building is done contrary to those restrictions which spoil the approach, if then the owner of a  plot complains about that breach, the fact that he did not see it until he drives along the road, in my opinion, does not affect the matter.  He is entitled to the estate being administered in accordance with the mutual covenant or local law; so in this case”.

46.        Following Gilbert the Lands Tribunal held in several decisions that the effect of a building scheme was that there was a greater presumption that restrictions imposed under it would be upheld and therefore a greater burden of proof on the applicant to show that the requirements of section 84 were met (see, for example, Re Bromor Properties Ltd’s Application (1995) 70 P&CR 569; Re Lee’s Application (1996) 72 P&CR 439 and Re Turners’ Application [2005] LP/45/2003 unreported).

47.        In Dobbin v Redpath [2007] EWCA Civ 570 the appellant challenged the Tribunal’s “greater presumption” that restrictions imposed under a building scheme would be upheld.  In considering this expression Lawrence Collins LJ (as he then was) said at [24]:

“It would be better for the Lands Tribunal to consider the matter in terms of the weight to be attached to objections in the light of the special interest of the beneficiaries of covenants of the building scheme.”

Carnwath LJ (as he then was) agreed at [29]:

“… I agree with Lord Justice Lawrence Collins that the use of the word “presumption” may be misleading and that it is probably better to speak in terms of the weight to be given to a particular consideration.”

48.        In considering the current application I am therefore entitled to place weight on the fact that covenant 13 was imposed in the context of a building scheme. 

49.        The building scheme was created by the 1922 deed of covenant.  The applicants say that the originally intended layout of the estate has been lost both in the vicinity of the application land and in many other parts of the estate.  The applicants only identified two lots where there has been an increase in the density of development allowed under the scheme (see paragraphs 22 and 26 above).  During the course of the hearing I identified two sites where the density of development was less than that permitted under the building scheme: there was only one house on lots 80 and 81 and there were two houses instead of three on lots 76 to 78.  My site visit and a closer inspection of the plans have revealed more such examples.  For instance both 14 and 18 Bowen Road are single houses built on double lots; and in the block containing the application land (formed by Bowen Road, Warren Road, Sidney Road and Hillmorton Road) the building scheme layout plan shows ten lots fronting Hillmorton Road and eighteen lots fronting Warren Road while nine and fourteen houses have been built there respectively.

50.        My overall impression of the estate is that its integrity has been carefully preserved over the last 90 years, albeit that it has been developed in parts at a density slightly less than that showed in the original layout plan.

51.        All of the objectors objected on the grounds that the proposed development would create a precedent for further development.  In his skeleton argument Mr Walder said that the setting of a precedent was not a relevant consideration since each application to modify or discharge a covenant is judged on its own merits.  I do not accept that argument, especially in the context of a building scheme.  The objectors’ point is commonly known as “the thin end of the wedge” argument.  In Shepherd v Turner [2006] 2 P&CR 28 Carnwath LJ said at [26]:

“It is not in dispute that one material issue (often described as the “thin end of the wedge” point) may be the extent to which a proposed development, relatively innocuous in itself, may open the way to further developments which taken together will undermine the efficacy of the protection afforded by the covenants… the “thin end of the wedge” argument is relevant, but the issues it raises are ones of fact, not law”.

In my opinion it is possible for covenant 13, by impeding the proposed user, to secure the practical benefit to the objectors of preventing a precedent for further development on the estate.  Whether there is in fact such a practical benefit and, if so, whether that benefit is substantial is a matter of evidence.

52.        Mr Walder said that the current application was unlike other building scheme cases and was a unique proposal that would give effect to the original density of development envisaged under the 1922 deed of covenant.  The block containing the application land can be divided into two halves.  To the east of (and including) 212 Hillmorton Road and 49 Warren Road the pattern of actual development reflects the original building scheme plan.  To the west, five houses in Warren Road have been built on eight lots while four houses in Hillmorton Road have been built on five lots.  In my opinion the proposed dwelling would not lead to an increase in the density of development in the vicinity of the application land and would not set an adverse precedent in this regard.

53.        But the 1922 estate layout plan not only establishes the density of development; it also controls the siting of it.  In respect of the development at the northern end of Bowen Road it does two things: firstly, it controls the building line and, secondly, it allows only two houses on each side of the road to be built along the Bowen Road frontage between Warren Road and Hillmorton Road.  Similarly, only two houses may be built along the Sydney Road frontage and along the Percival Road frontage between their respective junctions with Warren Road and Hillmorton Road.  Provided the houses are constructed within the building line(s) they can be located anywhere along the Bowen Road frontage.  1 Bowen Road has been built at the northern end of lot 58 which means that the proposed dwelling on the application land would be close to both it and 204 Hillmorton Road.

54.        The effect of the estate layout, as built, has been to create an undeveloped green corridor stretching from Percival Road in the west to Sydney Road in the east, as I saw when standing in the rear garden of 206 Hillmorton Road on my site inspection.  The proposed development would intrude into this space and might create a precedent along similar frontages on the opposite side of Bowen Road and in Percival Road and Sydney Road.  An owner wishing to develop a dwelling along the Percival Road frontage between 1 Warren Road and 184 Hillmorton Road could use the same argument about density as the applicants have employed, given that 1 and 3 Warren Road are built on three lots.  In my opinion covenant 13, by impeding the proposed user, does secure a practical benefit to all the objectors, namely the assurance of the integrity of a successful building scheme with a well-established character and the avoidance of a precedent whereby three dwellings will have frontages onto one of the three roads running between Warren Road and Hillmorton Road. 

55.        Mr Walder submitted that it was necessary to consider the scale of the amenity that would be protected were the covenant not to be modified.  He said that the objectors only enjoyed a view of a vacant, undeveloped plot and he contrasted this with other cases, such as Gilbert v Spoor, where an aesthetically important view was protected.  The objectors are not arguing that the covenant secures a particularly attractive view – it clearly does not do that – but rather that the open and well-established character of the area would be prejudiced were the covenant to be modified.  The ability to prevent that through the covenant is, in my opinion, a practical benefit.

56.        I do not consider the proposed development to be any threat to wildlife or to protected species and I do not consider this to be a practical benefit secured by covenant 13.

57.        The two objectors who would be most directly affected by the proposed development are Mr Dennis (204 Hillmorton Road) and Mr and Mrs Moffat (206 Hillmorton Road).  In his closing submissions Mr Walder said that Mr Dennis had not complained in his objections about any prospective detriment to the interior of his house.  I accept that Mr Dennis did not state in terms that loss of light to, or privacy within, his house was the basis of his objection.  His comments on those issues related to his rear garden.  But he went on to refer to the development restricting “views to the rear” and increasing noise levels.  Those two issues were not, in my opinion, limited to the rear garden.  This interpretation is supported by Mr Dennis’s comments in his letter to the Tribunal dated 11 August 2012 in which he criticises Mr McGunigal’s opinion that the proposed development would have a limited impact on No.204:

“… when he has not even been inside my property and sat in my home or viewed the aspect from my side of the boundary …”

In my opinion covenant 13 does secure practical benefits to Mr Dennis in respect of its impeding a proposal that would adversely affect the amenity of his property in terms of outlook, privacy, noise and loss of light to his garden.

58.        The impact of the proposal upon No.206 is more limited and, in my opinion, is restricted to the garden.  The house at No.206 would not directly face the proposed development and would be shielded from it by a mature tree and shrub screen, even allowing for the vegetation that has been removed from the application land.  The proposed dwelling would be close (approximately 5m) to the boundary of No.206, even without the conservatory.  I consider that by impeding the proposed user covenant 13 secures practical benefits by protecting the amenity of Mr and Mrs Moffat’s garden.

Are the practical benefits of substantial value or advantage?

59.        It is apparent from his expert report that Mr McGunigal was only instructed by the applicants to consider the effect of the proposed development, if any, on the value of the objectors’ properties.  He was not instructed to consider in terms whether, by impeding the proposed development, covenant 13 would secure to the objectors practical benefits of substantial advantage.

60.        Mr Walsh says in his first witness statement that the proposed development would not change the open character of the neighbourhood and would not cause any appreciable loss of amenity to the immediately neighbouring properties (204 and 206 Hillmorton Road).

61.        Mr Walder submitted that it would have made no difference to Mr McGunigal’s conclusions on value if he had been inside No.204.  That submission was not based upon the contents of Mr McGunigal’s expert report and the point could not be put to him in chief because he was not called.  Mr Walder said that it was axiomatic that Mr McGunigal could have gained no assistance from such an interior view because the proposed dormer bungalow had not been built and Mr McGunigal was conducting “a paper exercise”.  I do not accept Mr Walder’s submission: firstly, because it is an assertion not based on the evidence; and, secondly, because having had the benefit of viewing the application land from both the ground and first floors of No.204 I am satisfied that such a view would have had a material influence on Mr McGunigal’s consideration of the impact of the proposal.

62.        The view from the downstairs lounge of No.204 is southwards directly towards the application land (there are also similar views from the dining room and the study/play room).  There is a 2m high close-boarded fence along the length of the boundary with the application land.  There is no existing tree, shrub or vegetation screen that blocks the view to the south.  From ground floor level in No.204 it is not possible to see the application land itself; the view in that direction is blocked by the boundary fence and is limited to a view of the trees bordering 1 Bowen Road some 50 metres to the south.

63.        There are views of the application land from two bedrooms in No.204.  Another bedroom is being developed as part of a house extension which will also overlook the application land.  The view from the first floor level is of the whole of the application land and is not restricted, as it is at ground floor level, by the presence of the close-boarded fence.

64.        If the proposed development were to proceed the view from the downstairs lounge would be of the gable wall of the garage, located directly on the boundary, with a ridge height of some 6m, 4m above the existing fence height, and 6m wide.  Behind this would be the (higher and wider) gable wall of the main house, the dormer window to the front of the proposed dwelling and the pitched roof over the front porch.  The new building would be located in the middle of the boundary with No.204 and only 16m away from the house.

65.        The outlook from No.204 would be transformed from one of an open area to a large and proximate brick wall(s).  The fact that the plan of the proposed development shows new landscaping and planting along the boundary with No.204 (but on No.204’s side of that boundary and therefore not in the control of the applicants) suggests that the applicants were conscious of the effect that the new building would have on the amenity of its neighbour.

66.        The proposed building, being located to the south of No.204 and adjoining its boundary, will inevitably overshadow the garden of No.204 to some degree.  There will also be some increase in noise as a concomitant of residential occupation.  In this connection I note that the driveway and garage immediately adjoin the boundary with No.204.

67.        I do not consider that the new development would materially reduce the privacy of No.204 because there are no windows in the proposed dwelling (other than an obscure glazed downstairs bathroom window) that face in that direction.  The impact of the proposal is on the outlook from, and not the overlooking of, No.204.  However there are several ground floor windows that overlook the garden of 206 Hillmorton Road.  But there is an existing screen of trees and shrubs which would help to mitigate any loss of privacy.  On balance I do not consider that the covenant secures to Mr and Mrs Moffatt practical benefits of substantial value or advantage.

68.        Mr McGunigal devotes a significant part of his expert report to discussing the possible disbenefits to the objectors if the application were to be refused.  I find Mr McGunigal’s comments to be speculative and not based on evidence of any actual rodent or other infestation or criminal activity.  The test under ground (aa) is not what disbenefits might accrue if the application fails but what substantial practical benefits, if any, are secured to the objectors by covenant 13 by impeding the proposed user.  It is an unattractive argument for the applicants to suggest, in effect, that the proposed development would be the lesser of two evils when the proper maintenance of the application land is their responsibility.

69.        Applying this test to the present application, I am satisfied that by impeding the proposed user covenant 13 does secure to the objectors a practical benefit of substantial advantage by maintaining the integrity of the 1922 building scheme in terms of its open character, general appearance and the limitation of the number of houses fronting Bowen Road at this location.  It also secures to Mr Dennis, the owner of 204 Hillmorton Road a practical benefit of substantial advantage by preventing the construction of a dwelling that would have an overbearing affect upon the outlook from, and general amenity of, his house.

70.        I have taken into account the requirements of section 84(1A) of the 1925 Act when considering the application.  The only planning evidence adduced related to the application land itself.  The grant and renewal of planning permission is a material factor but does not, in my opinion, affect my conclusions about the substantial practical benefits that are secured by covenant 13.  I have also had regard to the fact that the covenant was imposed 90 years ago.  In my opinion the integrity of the building scheme that was created at that time has been sustained, despite some variations to the lot layout in terms of the density of development.  But the general pattern and layout of the estate is readily recognisable today from looking at the 1922 deed of covenant plan.

71.        It is not necessary for me to consider the valuation consequences of the detrimental effects of the proposed development.  Nor is it necessary, having answered the fourth question in the affirmative, for me to consider the fifth question regarding compensation.

Conclusion

72.        The applicants have not succeeded in establishing ground (aa) of section 84(1) of the 1925 Act and the application is therefore refused.  A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided.  The attention of the parties is drawn to paragraph 12.5 of the Practice Directions of the Lands Chamber of the Upper Tribunal dated 29 November 2010.

Dated: 13 February 2013

 

A J Trott FRICS

 

Addendum on costs

73.        The applicants make no application for costs but oppose any application for costs made by any objector on the basis that none of the objectors were legally represented, filed evidence or attended the hearing.

74.        None of the objectors have made submissions on costs.

75.        I make no award as to costs.

 

Dated 14 March 2013

 

 

A J Trott FRICS