THE GIRLS DAY SCHOOL TRUST (1872) LP/19/1999
[1]This is the decision on an application under rule 16 of the Lands Tribunal Rules 1996 for the suspension of proceedings under section 84 of the Law of Property Act 1925 to enable an application to be made to the High Court. The applicants are some of the objectors to the section 84 application. The originating applicants under the section 84 application are The Girls Day School Trust (1872) (“the Trust”), who oppose this application.[2]Mr W H Henderson of counsel appeared for the applicant objectors; Mr J Milner of counsel appeared for the Trust.[3]I can state the facts quite shortly. The Trust operate Notting Hill and Ealing High School (“the School”) in Cleveland Road, Ealing. The School has occupied this site since 1931. Immediately adjoining the School is the St Stephens Park Estate (“the Estate”) a residential estate built mainly between 1900 and 1915. The Estate is subject to a scheme of development or general building scheme. The School includes a property known as Skipton House, which is on the corner of Cleveland Road and Wimborne Gardens and comprises a detached house built about 1902 with a two-storey library and sixth form block built in 1970 in the garden. It has been in continuous use for educational purposes since 1945. Skipton House is on the Estate and is subject to the restrictive covenants applicable to the Estate. The remainder of the school is not on the Estate.[4]On 3 September 1998 planning permission was granted for the redevelopment of Skipton House by the demolition of the existing buildings and the erection of a building comprising swimming pool, recital room, music and practice rooms and classrooms with a bridge link to the adjoining main school.[5]On 5 May 1999 the Trust applied to this Tribunal under section 84 of the Law of Property Act 1925 for the modification of three of the restrictions affecting Skipton House, called the building line, nuisances and trades restrictions. Some of the residents on the Estate with the benefit of the covenants objected to this application. After a hearing in August 2000 I ordered the modification of these restrictions without compensation and awarded the Trust their costs. The objectors sought permission to appeal to the Court of Appeal. This was given on limited grounds on 15 March 2001. Before the appeal was heard, however, the objectors and the Trust reached agreement which was embodied in an order of the Court of Appeal dated 11 June 2001. This order provides for the three restrictions to be modified, for compensation to be paid as this Tribunal may think it just to award for any loss or disadvantage suffered by the objectors 2 in consequence of the modification and with no order for costs in the Court of Appeal or below.[6]The matter was remitted to this Tribunal for the assessment of compensation. The objectors unsuccessfully applied to the President for the appointment of another member to determine that compensation. On 30 July 2001 I held a pre-trial review and issued directions for the future conduct of the proceedings, including expert evidence. These directions were varied from time to time. In August 2001 a substantive hearing was fixed (with the agreement of the parties) for 12-15 November 2001.[7]On 13 August 2001 some of the objectors issued proceedings in the High Court for an injunction to prevent the Trust proceeding with the redevelopment of Skipton House in the form and for the uses permitted under the planning permission of September 1998. The objectors contended that the agreed modification of the restrictions cannot take effect until compensation has been paid (rule 20 of the Land Tribunal Rules 1996) and, therefore, pending the modification of the restrictions the construction and use of the swimming pool and the recital room would be in breach of the building line, trades and nuisances restrictions and that some of the proposed uses would be in breach of the nuisances restriction. Although the outcome of these proceedings may affect the basis and amount of compensation to be awarded by this Tribunal I was not informed that these proceedings had been issued until 6 November 2001. In explanation, Mr Henderson said that it was proposed that I would be asked to make alternative awards, although I note that the objectors’ valuation expert, Mr B C Sworn FRICS, does not refer to alternative figures in his report.[8]By October 2001 the objectors were in default regarding their evidence and I issued a peremptory order requiring them to lodge and exchange evidence by 15 October or show cause why this evidence should not be excluded under rule 46(2)(c) of the Lands Tribunal Rules 1996. This order was not complied with and I held an interlocutory hearing on 22 October to consider whether the objectors should be debarred from adducing evidence. At this hearing the Trust said that they would not ask for a debarring order provided the substantive hearing listed for 12-15 November could proceed. On that basis I gave the objectors further time to lodge and exchange their expert evidence and witness statements.[9]On 1 November 2001 the objectors’ solicitors made application to suspend these proceedings under rule 16(b) of the Lands Tribunal Rules 1996. I heard the parties on this application on 6 November and gave my decision orally at the close of the hearing. It is set out in an order dated 6 November 2001. The reasons for my decision are as follows. Rule 16 application[10]Mr Henderson, for the applicant objectors, said that I had no discretion on this application. If it raises a question under section 84(2) of the 1925 Act then I must suspend the proceedings. 3[11]A question is raised by Mr Carey (the expert valuation witness for the Trust) which falls within section 84(2)(a) of the 1925 Act. He states in his report (para 3.2.5) that the whole of the proposed development at Skipton House is not on land subject to the restrictive covenants and the swimming pool extractor vents and boiler flues are to be sited on unburdened land.[12]The other matters in the application fall within section 84(2)(b) and relate to the meaning and extent of the nuisances and roads restrictions. The Trust’s experts say that, in the absence of the redevelopment of Skipton House under the planning permission, there could be nuisance and annoyance from the building of two houses on the site or from building the swimming pool and concert hall development on the adjoining School land. Mr Henderson acknowledged that the likelihood of these alternative developments and their effect on compensation are questions of fact. He said, however, that the nuisance and annoyance therefrom is not permitted under the nuisances covenant and access over Skipton House to allow development on the School land is not permitted under the roads covenant. These are questions of law within section 84(2)(b) of the 1925 Act. He gave three possible interpretations of the nuisances restriction.[13]This application has been made at a late stage because expert reports were not exchanged until 24 October. It was not known until then whether the Trust would be relying on these contentions to reduce the amount of compensation.[14]The valuation experts on each side have produced alternative figures on their different assumptions which show that the differences are material. The issues are sufficiently important to be determined by the High Court.[15]Mr Milner, for the Trust, said that, even if this application falls within section 84(2) of the 1925 Act, I have a discretion whether to grant it. The word “shall” in rule 16(b) is directory and not mandatory. If this discretion were not available then an application under rule 16 could be used at any time to cause delay, even during or after a hearing. As a matter of practice my power to suspend proceedings must be discretionary.[16]The position of the Trust is that a certain amount of demolition, building and redevelopment must be accepted as within the normal and reasonable expectations of the beneficiaries of restrictive covenants. The Trust’s witnesses have made allowances for this in their assessment of compensation. The dispute is essentially about the level of disturbance from the alternative developments which could be carried out. This is a matter of fact and degree to be taken into account in the assessment of compensation by the Lands Tribunal. There are no issues of law for the High Court to determine. The application regarding the nuisances restriction does not fall within section 84(2)(b). As to the second part of the application, relating to the roads restriction, Mr Milner said that the Trust accept the objectors’ interpretation of this covenant. The alleged boundary issue is not yet a dispute. Further information has been requested by the objectors and the matter should be agreed. 4[17]No stay should arise in consequence of the injunction proceedings. It was expected that alternative figures of compensation would be put forward by the valuers. Mr Carey has dealt with this in his report, Mr Sworn has not done so. Alternative figures could still be prepared and considered at the hearing.[18]This application could have been made last August. It is now made to cause delay. It is an abuse of process.[19]Decision - On the day before the hearing the Registrar received a letter from the objectors’ solicitors protesting at the holding of a hearing to deal with this application. They contended that a stay of proceedings must be granted and a hearing is contrary to practice and unwarranted. The reasons for holding a hearing are as follows. This application is strongly opposed by the Trust. In my view they should be heard on it. The application has important consequences, particularly as to delay. It is by no means clear from the claim form submitted with the application whether the matters raised really are questions arising under section 84(2) of the 1925 Act. I have an obligation under the overriding objective to consider with the parties questions of expense and proportionality and to seek to resolve the issues without further unnecessary costs. These are likely to be disproportionate to the amount of compensation claimed or awarded.[20]I look first at the relevant statutory provisions. Rule 16 of the Lands Tribunal Rules 1996 provides as follows:- “At any time after the registrar has received a notice of objection to the application the President or the Tribunal –(a) of his or its own motion may, or(b) on the application of the applicant or any other person who has given a notice of objection, shall, suspend the proceedings for such time as he or it may consider appropriate to enable an application to be made to the High Court for the determination of a question arising under subsection (2) of section 84” Section 84(2) of the Law of Property 1925 Act is as follows:- “The court shall have power on the application of any person interested – (a) to declare whether or not in any particular case any freehold land is, or would in any given event be, affected by a restriction imposed by any instrument; or (b) to declare what, upon the true construction of any instrument purporting to impose a restriction, is the nature and extent of the restriction thereby imposed and whether the same is, or would in any given event be, enforceable and if so by whom. …………………………………….” 5 It is also relevant to consider section 84(3A):- “On an application to the Lands Tribunal under this section the Lands Tribunal shall give any necessary directions as to the persons who are or are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application, and no appeal shall lie against any such direction; but rules under the Lands Tribunal Act 1949 shall make provision whereby, in cases in which there arises on such an application (whether or not in connection with the admission of persons who oppose) any such question as is referred to in subsection (2)(a) or (b) of this section, the proceedings on the application can and, if the rules so provide, shall be suspended to enable the decision of the court to be obtained on that question by an application under that subsection, ……………”.[21]The rule 16 application was made on 1 November 2001 and on the same day proceedings were issued in the High Court. I was told that they have been set down with the application for an injunction made last August to be heard by 25 January 2002 with an estimated length of hearing of five days.[22]I deal first with the question of discretion: is the word “shall” in rule 16(b) used in a directory or mandatory sense? Do I have a discretion to refuse a stay of proceedings or am I compelled to do so if the application falls within section 84(2) of the 1925 Act? I agree with Mr Henderson that I have no discretion in this matter. The word “shall” in rule 16(b) is in my view mandatory. Stroud’s Judicial Dictionary states that “whenever a statute declares that a thing ‘shall’ be done, the natural and proper meaning is that a peremptory mandate is enjoined” (page 2515 para (8)). In rule 16 there is a juxtaposition of the words “may” and “shall”. Under paragraph (a) the Tribunal “may” suspend proceedings of its own motion but if application is made under paragraph (b) then the Tribunal “shall” suspend the proceedings. A similar juxtaposition is seen in the enabling provision under which rule 16 has been made, subsection (3A) of section 84, which provides that the proceedings on an application “can and, if the rules so provide, shall be suspended”. In Shepherd Homes v Sandham (No 2) [1971] 1 WLR 1062, Megarry J said (at 1072E):- “… in a case which falls within section 84(2), section 84(3A) of the Act of 1925 and [rule 16 of the 1996 Rules] now enable the Lands Tribunal of its own motion to suspend the proceedings so as to enable an application to be made to the High Court under section 84(2); and they require the tribunal to do this if the applicant or any person who has given notice of objection so applies”. I agree with Mr Milner, however, that this is not a satisfactory situation and can be used to cause delay. I will return to this matter under costs. 6[23]I now consider whether the matters raised in this application under rule 16(b) are questions for determination under section 84(2) of the 1925 Act. If they are then the proceedings in this Tribunal must be suspended.[24]I look first at the boundaries dispute. This does not appear on the claim form but Mr Henderson has raised it and I will deal with it. It shows, in my view, the way in which the objectors are desperately seeking points of law. This dispute arises out of paragraph 3.2.5 in Mr Carey’s expert report in which he states that the new building at Skipton House is to be sited partly on land which is not burdened by the restriction and the swimming pool vents and flues are not on burdened land. He does not refer to any plans to prove these statements. Mr Henderson said that this raises a question under section 84(2)(a), as to “whether … any freehold land is … affected by any instrument”. Mr Milner is doubtful whether there is really any dispute on this matter. This issue appears to me to be essentially a question of fact which ought to be settled by agreement. I do not think that Mr Carey is asserting any proposition of law. He presumably compared layout plans of the proposed building with a plan showing the boundaries of Skipton House and reached the conclusion as a matter of fact that the new building is sited partly on Skipton House and partly on the adjoining School land. Mr Sworn does not deal with this matter in his report. Both parties agree that Skipton House is subject to restrictive covenants. I am not persuaded that this is a dispute which falls within section 84(2)(a) of the 1925 Act, which should be decided by the High Court. It does not appear as a question on the claim form. This dispute (if it really exists) should be resolved by the two experts, by comparing the layout plans of the proposed development and a title plan showing the boundaries of Skipton House. In default of agreement it can be resolved by this Tribunal on the evidence.[25]I turn now to the two questions on the claim form. The first and main question does not yield up its meaning easily. It relates to the nuisances restriction. The agreement reached in June 2001 gives the objectors compensation for any loss or disadvantage suffered in consequence of the modification of the restrictions. This is to be assessed on the footing that(i) the trades and nuisances restrictions were effective to prevent the extended educational use envisaged by the development;(ii) the restrictions secured to the objectors the practical benefits of preventing the development not merely the proposed use; and(iii) the nuisance or annoyance from the development works would exceed that permitted under the unmodified nuisances restriction. The approach of the experts to the assessment of compensation is similar. Both Mr Sworn and Mr Carey assess temporary loss during the building works and permanent depreciation in value. Both look at the position under the proposed development and compare it with the position in the absence of that development. They differ on the assumptions to be made under the latter position. Mr Sworn assumes the status quo with continued limited educational use of Skipton House but no development (para 5.2i). Mr Carey assumes that two houses could be built on Skipton House or that the building now proposed for Skipton House could be built on the main School land (para 3.2.8). In either case there would be some disturbance from the construction works (see also the report of Mr Nosek of August 2001 (paras 10.1-10.6)). 7[26]In my judgment these are differences of fact and opinion. In order to assess compensation I must ask myself two questions. First, what, on the evidence, would have happened in the absence of the proposed development of Skipton House: no development (the status quo), or the erection of two houses on Skipton House or the building of the swimming pool, recital room and other accommodation on the main School land? Second, on a comparison of the disturbance from the proposed development and that arising under the alternative (if any) what compensation should be paid for any greater disturbance from the proposed development? These are question of fact and degree, dependent on the evidence.[27]Mr Henderson, however, said that this is not the full story. H has another string to his bow. The disturbance to be considered as a matter of fact depends on the true construction of the nuisances restriction. This, he said, is a question of law within section 84(2)(b). He gave three possible interpretations of the restriction. The nuisances restriction (unmodified) provides that “nothing shall be done or placed on any lot which may be or become a nuisance or annoyance” to those with the benefit of the restriction. Mr Milner said that the dispute as to nuisance relates essentially to the threshhold: the point at which building works become a “nuisance or annoyance” under the restriction. Mr Henderson, as I understood him, said (in effect), that it is necessary to construe the covenant first in order to decide what works may properly be carried out, and how, without breaching the covenant. This will limit the alternative development (if any) which may be assumed. In particular, it will prevent the assumption being made (as in Mr Nosek’s report at para 10.4) that the builder erecting two houses on Skipton House may not take as much care, and therefore cause more disturbance than the Trust’s contractors would, having regard to the restrictions imposed on them by the Trust. Thus, said Mr Henderson, there is here a question within section 84(2)(b), as to the “nature and extent of the restriction” and “whether the same is … enforceable and if so by whom”.[28]The three interpretations of the nuisances restriction suggested by Mr Henderson could affect the nuisance to be taken into account as a question of fact. I reluctantly accept that this raises a question under section 84(2)(b) requiring a stay of proceedings. In my view the question of what would as a matter of law amount to a nuisance or annoyance is so closely bound up with questions of fact and evidence that it is hard to see how they can be usefully separated. However, as I have accepted that a question has been raised under section 84(2)(b) I have no option but to stay the proceedings. The proceedings in this Tribunal are for the assessment of compensation and the questions of law raised by the objectors are part of the process of answering the factual question of amount of compensation. It is unhelpful, in my view, to have part of that process separated and dealt with by the High Court. I return to these matters when I consider costs.[29]The second question on the claim form relates to the roads covenant, a restriction which did not form part of the application to this Tribunal under section 84. This restriction states that “no lot or portion of a lot shall be laid into or used as a roadway or way to any other lot or any ground”.[30]In the report of Mr M C Judd, prepared for the Trust in August 2001, he envisaged the erection of the swimming pool and recital hall building on the main School 8 site with contractors’ access from Wimborne Gardens, that is to say over Skipton House. Mr Judd is not now to be called as an expert witness and this report is not admitted as evidence (see para (8) of my order dated 22 October 2001). Nevertheless, the objectors say that Mr Carey, has adopted Mr Judd’s report on this matter and refers to access for construction traffic from Wimborne Gardens (para 3.2.6). They seek a declaration that the roads covenant is enforceable by them and prevents access across Skipton House in connection with development on the adjoining land. Mr Milner appeared to accept that the roads covenant prevents Skipton House being used as a road or way for the contractors to gain access to the main School in the event of development on that land. Nevertheless, the objectors still wish to bring this matter before the High Court.[31]This issue may well be settled and, again, it is essentially a question of fact, namely whether contractors carrying out a development on the School land would gain access from Cleveland Road or Wimborne Gardens. There does not appear to be any dispute as to the meaning of the roads covenant but the questions raised on the claims form relate to the “nature and extent of the restriction” and enforceability within section 84(2)(b). I am again, therefore, reluctantly, bound to suspend the proceedings in this Tribunal.[32]The parties have agreed that, if I allow this application, I should suspend the proceedings until 12 February 2002. I have found, albeit reluctantly, that the application under rule 16(b) raises questions under section 84(2) and I suspend the proceedings in this Tribunal until 12 February 2002. Any party shall have liberty to apply. Costs[33]Under rule 52(1) of the Lands Tribunal Rules 1996 “the costs of and incidental to any proceedings shall be in the discretion of the Tribunal”. Mr Henderson asked for the objectors’ costs of the hearing, on the grounds that the they have been successful and costs should follow the event, with no order as to any costs wasted in consequence of the stay of proceedings. Mr Milner asked for the Trust’s costs of the hearing and their costs thrown away due to the suspension of proceedings. Alternatively, he said that I should reserve the question of costs.[34]The costs of these proceedings fall into two categories: the costs of the application and hearing and the costs wasted or thrown away in consequence of the suspension of proceedings. Although the objectors’ application has been successful I am of the opinion that there are special reasons why I should deprive them of their costs and require them to pay the Trust’s costs arising out of the application and suspension of proceedings. There are three reasons for this decision: that the application has been made at a very late stage in the proceedings, that it is unnecessary and wasteful of time and costs and that I believe it has been made primarily to cause delay.[35]Mr Henderson said that the reason for the late application is that it was not known until Mr Carey’s report was received on 24 October that the Trust were relying on assumed alternative forms of development to reduce the compensation. I cannot accept this reason. The Trust’s position on this issue was known to the objectors last August, at 9 the start of the proceedings. On 30 July 2001 I directed the Trust to serve on the objectors by 13 August details of the proposed development of Skipton House, including methods of construction, timetable, etc. In response to this direction the Trust included reports by Mr Judd and Mr Nosek. Part 5 of Mr Judd’s report considered the possibility of building two houses on Skipton House if the proposed development did not proceed and Part 10 of Nosek’s report set out in some detail the possible nuisance and annoyance from these alternative building works. Mr Carey’s later report on compensation is founded on these earlier reports. Thus, the objectors were aware in mid-August of the Trust’s position on alternative development and could then have applied, if they thought it necessary, for the suspension of proceedings. Alternatively, the objectors could have advised the Tribunal that issues of law had arisen and applied to the President for the appointment of a legal member to sit at the substantive hearing. The issues of law could have been determined as preliminary issues under rule 43. In my judgement it was unreasonable for the objectors to delay their application for suspension of proceedings from mid-August to 1 November, only 11 days before the start of the hearing when preparations for that hearing had reached an advanced stage.[36]On 22 October I held an interlocutory hearing into the failure of the objectors to comply with a peremptory order requiring them to lodge and exchange their expert evidence and witness statements by 15 October. At that hearing the Trust said that they would not ask for the objectors’ expert evidence to be debarred provided the hearing listed for 12-15 November could proceed. In the light of that concession I again extended the time limits under previous orders to allow the objectors time to lodge and exchange their evidence. In the absence of that concession I may well have debarred the objectors from calling evidence under rule 46(2)(c) of the Lands Tribunal Rules 1996 having regard to their continued failure to comply with directions. No indication was given at this interlocutory hearing that application might be made to suspend the proceedings nor that there were any issues of law. My recollection is that Mr Henderson assured me that there were no such issues. Ten days later, however, questions of law had arisen apparently of such importance and complexity that they must be referred to the High Court. Furthermore, the objectors were aware in mid-August last that some of them had made application for an injunction which, if granted, would affect the compensation payable under the order of 11 June 2001. The Tribunal should have been informed of this application in order that I could decide whether to stay proceedings or issue directions to deal with this new situation. I am left with the clear impression that the objectors are in reality seeking compensation on the assumption that the new development will include a swimming pool and recital room, causing considerable alleged loss or disadvantage, while seeking an injunction to prevent this development and these uses.[37]In my judgment the objectors are unable to show good reason why their application under rule 16 was made at a late stage in the proceedings and could not have been made earlier. I deal below with my conclusion as to the reason for this late application .[38]My second reason for requiring the objectors to bear the costs arising out of their application is that it is, in my view, an unnecessary and inappropriate procedure in the circumstances of the case. 10[39]The only matter remitted to this Tribunal under the order of 11 June 2001 is the determination of the consideration (compensation) payable for any loss or disadvantage suffered by the objectors in consequence of the modification of the restrictions. This is essentially a matter of fact and opinion. It is solely within the jurisdiction of the Lands Tribunal under section 84 of the 1925 Act. Any questions of law which might arise are incidental to the determination of compensation which, by its nature, can only be assessed on a broad brush basis. Even if there are genuine questions of law they are to be decided solely for the purpose of assessing compensation. At most this is a mixed question of fact and law, the law providing the framework for what is essentially a question of fact. It is, in my view, unhelpful for the alleged issues of law to be detached from the overall question and decided independently by the court. It is wasteful of costs and of time. There is, in my view, no good reason why all matters in dispute in the remitted issue of compensation should not be determined by this Tribunal. As stated above, if the objectors are unhappy with the determination of questions of law by a surveyor member they could have applied (and could still apply) to the President for a legal member to sit, thus providing a two member tribunal to deal with both law and valuation. I put this to Mr Henderson and he replied that the objectors have chosen the High Court route. I find no good reason for this choice. In Shepherd Homes v Sandham (No.2) [1971] 1 WLR 1062, Megarry J discussed the relationship of the Lands Tribunal and the courts in a case where a difficult point of law had arisen as to the true construction of a covenant and whether the Tribunal had jurisdiction. It was argued, on the strength of Re Purkiss [1962] 1 WLR 902, that the case ought not to be referred to the Tribunal so long as the point of law remained unresolved. Referring to Re Purkiss Megarry J said (at 1072E):- “… I do not think that the case is authority for any general rule that the Lands Tribunal is bound to abstain from resolving points of law because they are said to be difficult”. There is even more force in this statement where the points of law are merely incidental to the assessment of compensation. It is interesting to note that the stay upheld in Shepherd Homes was a stay of proceedings in the court to allow the determination of proceeding in this Tribunal.[40]Mr Milner, in opposing this application, said it was an abuse of process. He pointed to the possibilities of the use of rule 16 solely to cause delay, even to halt proceedings at a late stage, during or after a hearing. I make no comment, in the absence of full argument, as to whether this application is, as a matter of law, an abuse of process. I agree, however, with Mr Milner that in its present form rule 16 can be used to delay proceedings in the Tribunal, even at an advanced stage. It would perhaps be expedient for the rule to be amended to give the Tribunal discretion when considering an application for a stay, in order to prevent applications which are not bona fide but intended to cause delay or harass the other party.[41]I also agree with Mr Milner that rule 16 is here being used by the objectors for a purpose for which it was not intended. The purpose of rule 16 is to allow a party who does not wish the Tribunal to decide who is to be admitted to oppose an application under 11 section 84(1) (where there is no appeal) to require proceedings in the Tribunal to be suspended and the matter referred to the High Court. This is clear from rule 16(b), section 84(3A) of the 1925 Act and the matters referred to in section 84(2)(a) and (b). Rule 16(a) gives the Tribunal a discretionary power to order a stay of its own motion. In my judgment, rule 16 is not intended to allow a party to stop proceedings in the Tribunal at any time to allow application to be made to the High Court. Unfortunately, the rule as presently drafted allows this to be done.[42]My final reason for requiring the objectors to bear the costs of this application and stay is the motive for the application. In my judgment, the true reason for the application is to cause delay. A similar attempt to stop the proceedings was made on the last day of the hearing of the Trust’s originating application in August 2000 (see para 92 of my decision). Throughout the objectors have sought to delay these proceedings.[43]When Robert Walker LJ granted permission to appeal on limited grounds last March (Girls Day School Trust (1872) v Dadek [2001] EWCA CIV 380) he said (para 31):- “Finally, I think it right to say that I give permission to appeal with considerable misgivings. My decision will certainly occasion further delay and expense, not to mention hard feelings. It may not ultimately achieve anything for the objectors except more legal costs. However, it is my duty to grant permission to appeal if the appeal would have more than a fanciful prospect of success, and it appears to me that it would. I do not know whether even at this late stage there is the remotest prospect of some alternative form of dispute resolution being resorted to. I would ask the parties at least earnestly to consider whether there is any possible alternative means of resolving the dispute. If there has to be an appeal, it is most desirable that it should be heard and decided well before the long vacation, …”[44]In June 2001, following the grant of permission to appeal, the parties reached agreement. This provided for the restrictions to be modified, presumably with the intention that the Trust could proceed with the development of Skipton House under their planning permission, for compensation to be paid on an agreed basis as determined by the Lands Tribunal and for both sides to bear their own costs. At that time the end of the dispute appeared to be in sight. Since then, however, this litigation has grown rather than contracted. Some of the objectors have applied for an injunction to restrain the proposed development and use of Skipton House under the planning permission. The compensation proceedings in this Tribunal now encompass three expert witnesses on each side, 15 witnesses of fact, numerous documents (including lengthy questionnaires), two interlocutory hearings and a proposed four-day substantive hearing. These proceedings are now suspended at a late stage to enable the objectors to obtain declarations as to the true construction of certain restrictions, matters only incidental to the determination of compensation. On 6 November the objectors’ solicitors in a letter to the Trust threatened to seek a declaration as to the meaning of the order of June last. I am conscious that in the proceedings in this Tribunal the costs of determining compensation must by now be disproportionate to the amounts claimed and likely to be awarded. The expansion of this litigation, on the initiative of the objectors, is a matter of concern, 12 particularly having regard to the public interest in an early determination of the dispute (the effect on education at the school), one of the grounds for modifying the restrictions and clearly a matter which Robert Walker LJ had in mind when urging an early settlement to the dispute and an expedited hearing. At the hearing into this application I tentatively explored with the parties the possibility of my giving an indication of my approach to the forms of alternative developments to assist the settlement of this issue to allow the hearing to proceed but it was clear to me that the objectors were unlikely to respond and allow the hearing to take place on 12-15 November.[45]It is against this background of expanding litigation instigated by the objectors and delay which has been a constant feature of their case that I find that the motive for this application is further delay. One of the grounds for the application made last August for an injunction to restrain the development and use of Skipton House is that modification of the covenants under the June 2001 order is subject to rule 20 of the Lands Tribunal Rules 1996. This provides that a modification subject to compensation shall not take effect until compensation has been paid as endorsed by the Registrar. The hearing date into the assessment of compensation was imminent, with a decision shortly after which would allow the Trust to pay the compensation awarded. This ground for seeking an injunction would then become of no effect. I note that the planning permission of 3 September 1998 provides that development shall be commenced within five years (by 3 September 2003) (condition 1). The objectors strenuously opposed the grant of planning permission and would be able to renew this opposition if the current permission lapses. The objectors have an incentive to cause delay, which I find to be at the root of this application.[46]I am satisfied that, notwithstanding that I have granted this application, I should order the objectors to bear the costs for three reasons. First, that the application has been made at a late stage in the proceedings and could have been made at any time after mid- August last. Second, that in the context of the determination of compensation, the application is unnecessary, inappropriate and wasteful of time and costs. All matters relating to compensation should be determined by this Tribunal, sitting with a legal member, if necessary. Third, the motive for the application is primarily to cause delay. It is not my decision that the objectors should be penalised in costs for making an application under rule 16. There would have been merit in an application to the High Court before or at the start of these proceedings in May 1999 to decide the meaning and enforceability of the restrictions, particularly the trades restriction. It is the timing of the current application, the need for the application and the motive of delay which have led me to order costs against the objectors.[47]I order that the objectors listed in the Schedule to this order shall:(i) bear their own costs of this application;(ii) bear their own wasted costs in consequence of the order suspending these proceedings in any event;(iii) be jointly and severally liable to pay the costs of this application incurred by the Trust; and(iv) be jointly and severally liable to pay the wasted costs of the Trust in consequence of the order suspending the proceedings, all such costs, if not agreed, to be the subject of a detailed assessment by the Registrar of the Lands Tribunal on the standard basis. 13 DATED: 23 November 2001 (Signed) P H Clarke 14 THE SCHEDULE Claimants Name Address (1) Dr GILLIAN REED 42 Wimborne Gardens, Ealing, London W13 (2) Professor MICHAEL JOHN REED 42 Wimborne Gardens (3) Mr DENIS JOHN LILLEY 31 Wimborne Gardens (4) Mrs HILDA OLIVE LILLEY 31 Wimborne Gardens (5) Mr KEVIN MARTIN O’KEEFFE 29 Wimborne Gardens (6) Mrs MARY HENDERSON O’KEEFFE 29 Wimborne Gardens (7) Mr JAN REES 21 Wimborne Gardens (8) Mrs KAREN DICKINSON 21 Wimborne Gardens (9) Mrs JENNIFER STONE 19 Wimborne Gardens (10) Mr JOHN PATRICK JOSEPH O’SULLIVAN 40 Wimborne Gardens (11) Mrs MAUREEN ANNE O’SULLIVAN 40 Wimborne Gardens (12) Mrs RYSZARDA BIERNAT-ADAMKIEWICZ 34 Wimborne Gardens (13) Mr HORACE OLIVER FRANCE 32 Wimborne Gardens (14) Mr JAMES JOSEPH GEOGHEGAN 30 Wimborne Gardens (15) Mrs MARY ANN AUCKLAND 22 Wimborne Gardens (16) Mr JERZY MAKOWSKI 18 Wimborne Gardens (17) Mr DAVID THOMAS YOUDS 16 Wimborne Gardens (18) Mrs JANET ANN YOUDS 16 Wimborne Gardens (19) Mr RICHARD DAVID HOOKE 12 Wimborne Gardens (20) Mrs HELEN GRACE HOOKE 12 Wimborne Gardens (21) Mr PAUL PETROVITCH 8 Wimborne Gardens (22) Mr ANDREW DAVID MORRISONS 6 Wimborne Gardens (23) Mrs LUDMILA ANNE MORRISONS 6 Wimborne Gardens (24) Mr DAVID EVAN HARRIES-JONES 6 Cleveland Road, Ealing (25) Professor TIMOTHY JOHN PETERS 12 Cleveland Road (26) Mrs JUDITH MARY PETERS 12 Cleveland Road (27) Mrs MARGARET THERESE OUTTEN 14 and 16 Cleveland Road (28) Ms KRYSTYNA LEN 26 Cleveland Road (29) Mr CHRISTOPHER BROOMHEAD FLEMING WALKER 30 Cleveland Road 15