United Kingdom Upper Tribunal (Lands Chamber)

UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 623 (LC)

UTLC Case Number: LP/5/2014

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT - discharge - modification - restriction to one single dwellinghouse - proposed development of second house in garden - lack of planning permission - grounds (a), (aa), (b) and (c) of s84(1) of Law of Property Act 1925 - application refused

 

IN THE MATTER OF AN APPLICATION UNDER SECTION 84

OF THE LAW OF PROPERTY ACT 1925

 

 

 

 

BY

(1)                 MR ALAN SNOOK

(2)                 MRS BARBARA ANN SNOOK

 

Re: 71 Cherry Tree Road

Sheffield

S11 9AD

 

 

Before: P D McCrea FRICS

 

Sitting at: Sheffield Employment Tribunal, 14 East Parade, Sheffield. S1 2ET

on

6-7 October 2015

 

 

Mr Alan Snook appeared for himself and Mrs Snook, with permission of the Tribunal

Christopher Moss, instructed by rradar legal, appeared for the objectors

 

 

 

The following cases are referred to in this decision:

Re: Foley’s Application (2008) (Lands Tribunal) LP/58/2006

Re: Bass Ltd’s Application (1973) 26 P&CR 156

Re: Davies’ Application (2008) (Lands Tribunal) LP/65/2006

 

The following cases were referred to in argument:

 

Shephard & Turner [2006] EWCA Civ 8, [2006] 2 P&CR 28

Stockport MBC v Alwiyah Developments (1983) 52 P&CR 238

Re: Quaffers Ltd’s Application (1988) 56 P&CR 142

Re: Mansfield District Council’s Application (1976) 33 P&CR 141

Winter v Traditional & Contemporary Contracts Ltd [2007] EWCA Civ 1088

Re: SJC Construction Co Ltd’s Application (1975) 29 P&CR 322

Re: Zopat Developments’ Application (1966) 18 P&CR 156

Re: Marshall’s Application (Lands Tribunal) LP/32/2001

Re: Hampden Homes’ Application (Lands Tribunal) LP/38/1999

Duffield v Gandy [2008] EWCA Civ 379

Re: Bushell’s Application (1987) 54 P&CR 386

Re: GR and AL Development Ltd’s Application [2009] UKUT 238 LC

Re: Walker’s Application [2010] UKUT 16 (LC)

Re: Wild’s Application [2012] UKUT 306 (LC)

 




DECISION

Introduction

1.             This is an application for the discharge or modification of restrictive covenants by Mr Alan Snook and Mrs Barbara Ann Snook (“the applicants”).  The applicants purchased 71 Cherry Tree Road, Sheffield, S11 9AD in September 2012.  They have fenced off part of the garden of that property, which I shall refer to as the development plot, upon which they propose to erect a house.  The application land encompasses both the development plot and also the house and remainder of the garden at number 71, which I shall refer to as the retained land.

2.             The objectors are the applicants’ neighbours, Mr Gareth Cokell and Mrs Naomi Cokell (“the objectors”), who purchased the adjoining property, 69 Cherry Tree Road, in July 2013.

3.             The restrictions were imposed by a conveyance (“the conveyance”) dated 23 September 1960 by Mr Austin Ibrahim (the Vendor) to Mr Leslie William Gould (the Purchaser).  Clause 3 of the conveyance provided as follows:

“For the benefit and protection of the adjacent or adjoining land or property of the Vendor to be known as 69 Cherry Tree Road (hereinafter called “the retained property”) or any part or parts thereof and so as to bind the property hereby conveyed into whosoever hands the same may come the Purchaser hereby covenants with the Vendor that he the Purchaser and the persons deriving title under him will at all times hereafter observe and perform the restrictions and stipulations set out in the first schedule hereto but so that the Purchaser shall not be liable for a breach of this covenant occurring on or in respect of the property hereby conveyed or any part thereof after the Purchaser shall have parted with all interest therein.”

4.      In so far as relevant to this application, the restrictions in the first schedule were:

“A. The Purchaser will not cut down or suffer or allow to be cut down any of the ornamental trees at present growing upon the property hereby conveyed and that the Purchaser will suitably prune and maintain in good order and condition the said ornamental trees.

B. The Purchaser will plant and for ever hereafter maintain a hedge of thorn beech or privet not less than two feet six inches or more than three feet in height upon the boundary between the points marked ‘C’ and ‘D’ on the said plan and will erect in accordance with plans already approved by the Vendor and forever hereafter maintain a hardwood fence four feet in height along the boundary between the points marked ‘D’ and ‘E’ on the said plan.

C. The Purchaser will not erect or suffer or allow to be erected on the property hereby conveyed more than one dwellinghouse with suitable outbuildings thereto already approved by the Vendor and that no other buildings or erections other than a greenhouse and the addition of a second storey to the proposed garage of the Purchaser in accordance with plans already approved by the Vendor shall be built or erected of the property hereby conveyed.”

5.             The application was framed on a broad basis, supported by an extensive amount of background material, and sought the discharge or modification of restrictions A, B and C contained in the first schedule, in respect of both the development plot and the retained land.  It was made under paragraphs (a), (aa), (b), and (c) of section 84(1) of the Law of Property Act 1925 (“the Act”). Mr Snook said that the main purpose of the application was to discharge or modify restriction C on the development plot, and his pleadings were largely made on that basis.

6.             At the outset of the hearing, I found and informed the parties that restriction B of the First Schedule amounted to a positive covenant, over which the Tribunal had no jurisdiction.  The application proceeded in respect of restrictions A and C.

7.             Mr Snook appeared for himself and Mrs Snook.  He gave evidence of fact, and called Mr Robert Flint FRICS, a partner in the Sheffield firm of Flint Ross, to give expert evidence.  Mr Christopher Moss of counsel appeared for the objectors, and called Mr Cokell and Mr Richard Ibrahim (the son of the Vendor named in the conveyance) to give evidence of fact, and Mr John Francis FRICS, a director of the Sheffield firm of Crapper and Haigh, to give expert evidence.

8.             On 16 October 2015 I inspected the application land, together with the objector’s land and house, accompanied by Mr Flint and Mr Francis.  I also made an unaccompanied tour of the vicinity of the properties, including the various redevelopment sites referred to in the evidence.

Statutory Provisions

9.      Section 84 of the Act deals with the power to discharge or modify restrictive covenants affecting land and, in so far as is material, states:

“(1) The Upper 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 -

(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete, or

(aa) that in a case falling within subsection (1A) below the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or

(b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or

(c)  that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction;

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either -

(i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or

(ii) a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.

(1A)  Subsection (1) (aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of 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 such person will suffer from the discharge or modification.

(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.

(1C) It is hereby declared that the power conferred by this section to modify a restriction includes power to add such further provisions restricting the user of or the building on the land affected as appear to the Upper Tribunal to be reasonable in view of the relaxation of the existing provisions, and as may be accepted by the applicant; and the Upper Tribunal may accordingly refuse to modify a restriction without some such addition.”

Facts

10.         From the evidence and my site inspection I find the following facts.

11.         In around 1959 Mr Austin Ibrahim purchased a plot of land that now constitutes numbers 69 and 71 Cherry Tree Road, Sheffield, upon which there had been a substantial house which had been significantly damaged by fire.  Mr Ibrahim, who was an architect employed by the local council, demolished the house, and designed and built two houses, one for his own accommodation (number 69) and one to be sold (number 71) in order to make the project financially viable.

12.         Upon the sale of number 71, Mr Ibrahim imposed the restrictions outlined in the first schedule to the conveyance.  These have remained in place, save for a minor relaxation to allow an extension of 71 (which was not implemented) to the present day.

13.         The houses at numbers 69 and 71 are lower than road level, and accordingly the shared drive slopes down from the road.  The rear gardens of each property comprise a terrace area, level with each house, together with gardens which are at a much lower level again, accessed from each terrace via steep steps.  Accordingly the rear gardens of each house are significantly below the road level of Cherry Tree Road.

14.         On 10 September 2012 Mr and Mrs Snook purchased 71 Cherry Tree Road for £340,000. 

15.         Mr Snook then made separate enquiries of Mr Ibrahim’s two sons, Richard and David, regarding the discharge or modification of the restrictions, but to no avail as number 69 was in the process of being sold to Mr and Mrs Cokell, which occurred on 26 July 2013 at a price of £299,000.

16.         In late 2013 Mr and Mrs Snook transferred the western part of the garden of 71 Cherry Tree Road, containing the development plot, into a separate registered title.

17.         Mr Snook made a pre-application planning enquiry of Sheffield City Council, including the submission of a drawing which he had prepared showing the house which he proposed on the development plot. On 25 August 2015, Mr Stewart Greenslade, a planning officer at the Council, confirmed that the development plot was located in the Nether Edge Conservation Area, but that the principle of a dwelling on the site would be considered to be acceptable subject to any application satisfying supplementary policies including the requirement that any house would be well designed, in scale and character with neighbouring buildings and would be expected to preserve or enhance the character or appearance of the conservation area.

18.         Mr Greenslade considered that the footprint of the proposed house was too large, and suggested a reduction in width to increase the distance to the boundary with the retained land.  He also said that Mr Snook’s drawing appeared to indicate a new vehicular access taken through the end section of the existing stone perimeter wall, which would be unacceptable to the planning authority. Any vehicular access should be via the existing drive that served numbers 69 and 71, and then through the existing close boarded fence.  Mr Greenslade went on to reinforce the authority’s concern regarding landscape and tree issues but indicated that a full tree survey, which he understood was being completed, should be submitted.  In respect of amenity issues, he indicated that the east facing elevation of the proposed dwelling should not include any habitable room windows that would lead to overlooking, although as currently drawn the plan appeared to avoid any detrimental impact on other neighbouring occupiers.  In summary, the proposal submitted by Mr Snook would not be supported should an application be submitted, but appropriate modifications may allay some of the local authority’s concerns.

19.         Mr Snook also commissioned an Arboricultural Impact Assessment, which recommended the removal of a large horse chestnut tree within the development plot, adjoining the wall to Cherry Tree Road, but otherwise considered that the proposed development would not have a detrimental impact on the remaining trees.  The location and shape of the proposed house shown within the report differed from that which featured in the plan which Mr Snook submitted with his pre-application enquiry.

20.         Discussions between the applicants and the objectors proved fruitless, resulting in this application to the Tribunal.

Grounds for the application and conclusions

21.         The application is made under paragraphs (a), (aa), (b) and (c) of the Act and I deal with these in turn.

Application under ground (a)

22.         In order to succeed, the applicants must show that 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 restrictions ought to be deemed obsolete.

23.         Mr Snook made separate submissions in respect of the development plot and the retained land.  In respect of the development plot, he said that it had changed in character in that it was formerly populated by mature trees but was now open space.  In respect of the neighbourhood, Mr Snook said that its character had changed beyond recognition in that hundreds of houses had been built in former gardens, hospitals, churches and colleges. He submitted extensive evidence in respect of the local plan, together with planning consents in the neighbourhood.

24.         The development plot was, he said, centrally located in the development plan area for housing and that the planning authority had accepted the principle of residential development.  In respect of the retained land, he said that his house had windows and extensive terracing overlooking No.69.  The removal of trees within the wooded area towards the western boundary had changed the character of the garden.

25.         Mr Flint FRICS considered that the development of residential sites in the neighbourhood, which had occurred since 1960, showed that the neighbourhood had radically changed in the past 50 years.  This was evident from the comparison of ordnance survey plans. He referred to ten examples of residential development in the vicinity, ranging from a single detached dwelling to relatively large scale residential development of houses and flats. In his opinion the restrictive covenants were out of date and obsolete.

26.         For the objectors, Mr Moss submitted that the restrictions contained within the conveyance were far from obsolete.  Mr Snook had included ground (a) as a “catch all”, but in fact it had no merit at all.  A covenant could only be regarded as obsolete when its original purpose could not be carried out.  Mr Moss relied on Re: Foley’s Application (2008) which he said bore a striking similarity to this case.

27.         Mr Francis FRICS considered that the restrictions were not obsolete and had a continuing purpose.  He said that the covenants were only put in place in the 1960s and were rather different from those which may have been included in titles running from the early part of the 20^th Century.  Infill development was already taking place in the area when the covenant was entered into and he considered it likely that Mr Ibrahim saw the potential for further development on the site of number 71 and with this in mind imposed the restrictions on the title in order to protect number 69.

28.         Mr Cokell said that he and Mrs Cokell were well aware of the benefit of the covenants when they decided to purchase number 69, and that the purpose of the restrictions, to maintain the amenity of number 69, remained valid.

29.         Mr Richard Ibrahim was able to give some insight into his father’s thinking at the time the covenants were entered into.  He said that it was never his father’s intention to build in the garden of the two properties, which his father considered to be a unique plot.  It was logical for them to be situated close together.  Mr Ibrahim said that the covenants were entered into very deliberately and because number 71 was considered to be at a disadvantage, owing to the restrictions upon it, it was given a slightly larger garden as an element of compensation.  Mr Ibrahim was convinced that his father’s intention was that the restrictions would have effect in perpetuity.  When number 69 was put up for sale by the Ibrahim family, he considered that one of the selling points was the benefit of the restrictions.

Application under ground (a) - Conclusions

30.         Following my inspection of the application land, I also familiarised myself with the immediate neighbourhood surrounding it, including the sites of the various planning applications referred to by the applicants.  In my opinion any change in the character of the neighbourhood would have only been to a minor degree.  The area continues to be a fairly leafy suburb of Sheffield and any development that has taken place seems to me to be in keeping with the original Victorian houses which predominate.

31.         However, even had there been a significant change in the character of the neighbourhood, the applicants would still need to show that the original purpose of the restrictions could no longer be achieved.  I am not satisfied that is the case.  There is no doubt in my mind that the original purpose of the covenants, to protect the amenity of No.69, can still be achieved.  I am not persuaded that the restrictions imposed by parts A and C of the first schedule to the conveyance are obsolete. The application under ground (a) therefore fails. 

Application under ground (aa)

32.         Both parties referred to Re: Bass Ltd’s Application (1973) 26 P&CR 156 and, whilst it is not a substitute for statute, it is convenient to deal with the application under this ground by reference to that case.

33.         The first question is whether the proposed user is reasonable.  Mr Snook submitted that the proposed user was reasonable.  The development plot was located in a housing area, and whilst accepting that he did not have planning permission, the planning authority had indicated that the proposed dwelling was, in principle, acceptable.

34.         For the objectors, Mr Moss submitted that there was no detailed planning consent available to me, which I would require in order to assess the impact of the proposal.  The plans which Mr Snook had submitted were inadequate in a number of respects - there were no elevations, insufficient detail of the likely materials, and no proper indication of the placement of windows.

35.         Mr Moss referred to the decision of the Tribunal (Mr N J Rose FRICS) in Re Davies’ Application LP/65/2006 in which the Tribunal commented:

“If the Tribunal is to assess the extent of the benefit to an objector of impeding a particular user of land, it is essential for the Tribunal to be provided with full details of that user. It is true that the applicants have provided a general description of the form of development which they have in mind, and I infer that they would be prepared to agree that any modification should be subject to those conditions being adhered to in any future development of the application site. But without the benefit of a formal planning permission any description of the proposed house or houses would be difficult to express satisfactorily…”

36.         The Tribunal went on to conclude that in the absence of detailed planning permission, there was insufficient information available to enable the Tribunal to form a clear conclusion as to the effects of the proposed development on those entitled to the benefit of the restrictions.

37.         In my judgement, those considerations apply equally to this application.  The drawings which Mr Snook produced are insufficiently precise for me to make a meaningful assessment on how the proposed house is likely to impact on the objectors. The planning officer had concerns about various aspects of the proposal, and there has been no real explanation as to how these concerns would be alleviated.

38.         Accordingly, the application under ground (aa) fails at the first stage.  However it is appropriate to make some observations as to the following stages, as I would not wish the applicants to go to the time and expense of making a further application to the Tribunal, armed with a planning consent, in the belief that their application under ground (aa) would then be bound to succeed.

39.         It was common ground between the parties that the covenants impeded the proposed user, however imprecisely it was described.  The third and fourth questions are whether impeding that user secures practical benefits to the objectors, and if so whether those benefits are of substantial value or advantage.

40.         Having inspected the objectors’ garden, there is no doubt in my mind that the covenants secure practical benefits to the objectors.  The extreme topography of the site is not clear from any plan, but when standing in the objectors’ garden it is immediately obvious that the effect on their amenity of any new house even vaguely resembling that proposed by the applicants would be considerable. In my judgement it is of substantial advantage to them to benefit from the restrictions to resist development. 

41.         Mr Flint valued 69 Cherry Tree Road at £320,000 in his expert report, but said that at the date of the hearing, some twelve months later, he thought this had risen to £350,000.  Mr Francis’s value was £375,000.  In their oral evidence, both Mr Flint and Mr Francis accepted that £350,000 to £375,000 was a reasonable valuation range.

42.         Mr Flint considered that the release or modification of the covenants to enable the applicant’s proposed development, would not have any effect on the value of 69 Cherry Tree Road.  Mr Francis considered that the diminution in value would be £50,000.  I prefer Mr Francis’s view as, having inspected the site, it is inconceivable to my mind that there would be no effect on the value of 69 Cherry Tree Road, should a house be built in the approximate form proposed by the applicants.

43.         A reduction of £50,000 would equate to something in the order of 13-15% of the value of 69 Cherry Tree Road, on the agreed valuation range.  In my judgement, the benefit to the objectors of relying on the covenants to impede the proposed user of the application land by the applicants secures a practical benefit of substantial value.

44.         Accordingly, the application under ground (aa) would also fail, even had planning consent been granted for the proposed development, since in my judgement the covenants secure practical benefits to the objectors, which are of both substantial value and substantial advantage.

Application under ground (b)

45.          This ground was not pursued with particular enthusiasm.  To succeed, the applicants would need to establish that the objectors had agreed, either expressly or by implication, by their acts or omissions, to the covenants being discharged or modified.  Mr Cokell’s evidence was that they had not done so.

46.         Mr Snook submitted that there had been agreement by implication.  In my judgement that is not the case, and I am not persuaded that the applicants have made out their case under this ground.  The objectors have clearly stated that they do not agree in any way to the proposed discharge or modification. The application under ground (b) therefore fails.

Application under ground (c)

47.         Again, this ground seems to have been relied upon as part of what Mr Moss described, in my view accurately, as a “catch all” process.  To succeed, the applicants would need to show that the discharge or modification of the covenants would not cause injury to the objectors.  Having made my previous findings, I am satisfied that injury would be caused, and the application under this ground therefore also fails.

48.         I would add for completeness that this decision largely deals with the application as pleaded by Mr Snook, which concentrated on the modification of restriction C to enable the erection of a house on the development plot. I have not overlooked that the application also sought the discharge or modification of restriction A, and in respect of both restrictions encompassed the land that Mr Snook was intending to retain.  However these aspects were not explained or pursued to any meaningful degree, and I am not persuaded to exercise my discretion to order the discharge or modification of restrictions A or C on either the development plot or the retained land.

Conclusions

49.  The applicants have not succeeded in establishing grounds (a), (aa), (b) or (c) of section 84(1) of the Law of Property Act 1925 and the application is therefore refused. This decision is final on all matters other than the costs of the application. A letter on costs accompanies this decision. 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.

P D McCrea FRICS Dated: 20 November 2015