SUSAN ANTHEA WAKE LP/2/2001

UPPER TRIBUNAL

LANDS CHAMBER

LP/2/2001

Case No LP/2/2001

Between

SUSAN ANTHEA WAKEApplicant

Before

P R Francis FRICS

Venue 48/49 Chancery Lane, London, WC2A 1JR

Date 11 July 2002

Hearing 12 April 2002

Property: Welland House, Tixover, Rutland, PE9 3QL

Catchwords: RESTRICTIVE COVENANT – restriction to single private dwelling house with curtilage – application to discharge or modify to permit conversion and extension of barn within curtilage to a separate dwelling house - whether practical benefits of substantial value or advantage secured to objectors – whether injury to objectors – application refused – Law of Property Act 1925, section 84(1)(aa) and (c)

[1]This is an application by Mrs Susan Anthea Wake (“the applicant”) under section 84 of the Law of Property Act 1925 (“the Act”) seeking the discharge or modification of a restrictive covenant affecting land in her freehold ownership and known as Welland House, Tixover, Rutland, PE9 3QL (“the subject land”) so as to permit the conversion and extension of a detached barn within the curtilage to a separate single private dwelling.

[2]Miss Catherine Taskis of counsel appeared for the applicant. She called the applicant to give evidence of fact, and Mr. E Martin Sheard MA FRICS MRTPI of Matthews and Son, Chartered Surveyors, of London WC1, who gave expert evidence. Mr. Alan Plummer, solicitor, called Mr. Terence P Gilman, the second objector and representative of the first objector. FACTS

[3]The parties had agreed a number of facts in connection with the application, and Mr. Sheard’s report. From these, the evidence, and my inspection of the subject land and surrounding area on 16 April 2002, I find the following facts:3.1 Welland House lies on the east side of the single village street serving Tixover, a quiet and picturesque linear hamlet comprising approximately 20 houses, a farm and extensive farm buildings and yards lying in open countryside about 13 miles west of Peterborough.

3.2 The subject land comprises a rectangular plot with the village street forming the west boundary, and the River Welland forming the east. The land slopes down from the street with Welland House, an imposing period detached residence located approximately in the centre, approached over a driveway that enters the land in the north west corner. To the north-east corner of the land, at a point at which the slope towards the river is steepest, a stone walled and tile roofed garage with store/workshop under (“the barn”), the subject of this application, is built into the slope.

3.3 The front wall of the barn is about 6 metres back from the 1 metre high stone boundary wall that separates the subject land from the village street which, at that point is about 4.5 metres wide. The entrance of the garage part of the barn (which is at the upper level due to the slope of the site, with the store/workshop below) is about 1.2 metres below street level, the boundary wall being that much higher on the subject land side.

3.4 The street has, on the other side at a point about 20 metres north of the driveway entrance to the subject land, a wide, concreted, vehicular access giving onto some of the yards and farm buildings of Manor Farm, the objectors’ holding. Opposite the subject land, where the yards are approximately 2 metres above street level, there are a range of traditional farm buildings and a Dutch barn.

3.5 Immediately behind the applicant’s barn (some 2 metres from its north-east corner) is a single-storey breeze block and corrugated asbestos roofed building (“the pumphouse”) of about 3 metres square by 2.5 metres in height, this being within the 4 ownership of the objector. It contains an electric pump that extracts water from an adjacent spring, feeding a header tank elsewhere on the objector’s land and which supplies the farm buildings. It is operated automatically on a 3 hour time cycle, 7 days a week.

3.6 To the north of the subject land is an area of partly cultivated garden ground, at a lower level (from the street) between Welland House and a property further along the street known as The Cottage. The objectors have obtained planning permission for the erection of two cottage style properties on that land, but at the date of the hearing no steps had been taken to implement it.

3.7 By a conveyance dated 30 September 1981, the subject land was acquired by the applicant from Deryk King Waterstone, the objectors’ predecessor in title. That conveyance contained the restrictive covenant, the subject of this application, and which it is agreed the objector as successor in title to the vendor, has the benefit. The relevant clause reads:

[4]The purchaser hereby covenants with the vendor for the benefit of the vendors retained property or such parts as are capable of benefiting from these covenants but so that the purchaser shall not be liable in respect of any breach thereof after she shall have parted with all interest in the property hereby conveyed as follows: (1) Not to use the property hereby conveyed for any purpose other than a single private dwelling house with curtilage. 3.8 The land to which the benefit of the covenant is annexed comprises the whole of the objectors retained holding, known as Manor Farm, Tixover, and includes, in the vicinity of the subject land, that lying immediately to the north-east and south-west and that to the north-west, on the opposite side of the street.

[3]9 Planning and Listed Building Consents in respect of the barn were granted, subject to conditions, to a Mr. and Mrs J. Ridgeon (to whom the applicant had agreed a sale) for ‘Change of use and extension to barn to create dwelling house’ on 3 June 1997 (Reference Nos: F/97/0204/9/CC and L/97/0205/9/CC). This followed an earlier permission that had been obtained in 1991, and had since lapsed. The proposed dwelling, comprising the conversion of the existing barn together with the provision of a single storey front (west) extension, and a two-storey extension to the east and south would be faced in stone to match the existing building, surmounted by blue slate roofs. The accommodation would comprise at upper ground floor level, entrance hall, utility room, kitchen, inner hall with cloakroom, galleried living and dining rooms with balcony on the east (river) side. At lower ground floor, principal bedroom with en-suite bathroom, 3 further bedrooms and a bathroom. Between the single storey utility room extension at upper ground floor, and the boundary wall to the street, there would be an open-fronted double garage. The existing driveway would be closed off and moved approximately 25 metres to the south, to be shared between Welland House and the new dwelling. Mr. & Mrs Ridgeon subsequently withdrew from the proposed purchase. 3.10 On 30 January 2001 an application was made to this Tribunal on behalf of the applicant, as original covenantor, under grounds (aa) and (c) of section 84(1) of the Act for discharge or modification of the 1981 covenant to permit the erection and subsequent 5 use of the dwelling for which the planning permission and Listed Building Consent described above were granted in 1997. Objections were received from(1) T P Gilman Nominees Ltd and

(2) Terence Percy Gilman and were admitted. 3.11 The parties have agreed that the objectors are entitled to the benefit of the covenant, that the proposed user of the barn is reasonable and the restriction impedes that use. APPLICANT’S CASE Evidence

[4]Mrs Wake said that she purchased Welland House at auction in 1981 and had occupied it as her main family home for in excess of 20 years. She was aware that the vendors were the O’Brien Estate, from Limerick, Eire, who then owned Manor Farm but understood that the second objector, Mr. Gilman, had farmed the estate since the 1970s. On buying the property, she immediately sought and obtained planning permission to extend the house, which was also in need of substantial modernisation, and then moved in with her family in 1982, dividing her time between Welland House and her other home in London. However, between 1984 and 1992 most of her time was spent at the former.

[5]It was understood that the barn, which is on the northern edge of Welland House’s plot and some way from the main house, was originally used as a reading room for the village, and that a smithy occupied the lower ground floor area. Mrs Wake said she used the building for storage of bicycles, gardening equipment and logs, preferring to keep her car nearer the house. Following her mother’s illness, and in consideration of the fact that it might be better to have her living more locally, Mrs Wake said she first obtained planning permission for conversion of the barn to residential accommodation in 1991. This was never implemented, and by the time she came to reassess the situation (in 1996 following a serious accident which served to immobilise her), her mother was too ill to move.

[6]Due to her immobility, financial difficulties and the scarcity of available assistance with the garden, which extended, with the house, to almost 1acre, she decided to upgrade the plans for the development of the barn so that it could be sold off as a separate unit. A sale was agreed, to Mr. and Mrs Ridgeon, who arranged for an architect to draw up a new set of plans and submit an application to the local planning authority. They agreed to fund the cost of creating a new, shared entrance and to erect a fence separating the 2 properties. During the pre-contract period, a problem was encountered with the septic tanks that were located on the subject land, and Mrs Wake said she received no co-operation from Mr. Gilman (who was responsible for half the cost, as they also served some of his property).

[7]This was a matter of concern to the Ridgeons, and was referred to in correspondence from their solicitor. Eventually Mrs Wake said she arranged for the tanks to be emptied at her own expense. That matter having been resolved, in June 1997 (by which time the planning permission and Listed Building consent had been granted) her solicitor then 6 reported that the searches had revealed the existence of the restrictive covenant and this information was passed on to the Ridgeons via their solicitor. Mr. and Mrs Ridgeon then went to see Mr. Gilman (unbeknown to Mrs Wake) to discuss it, having had no response from his solicitors to enquiries about the covenant, but they were apparently not given the opportunity to discuss the matter other than to be told that the pump in the pumphouse was noisy. Mr. and Mrs Ridgeon subsequently withdrew from the purchase.

[8]Mrs Wake said she was then told that she had no alternative but to make an application to the Lands Tribunal under the Act, but for reasons associated with the alleged tardiness of her then firm of solicitors (whom she had since replaced) the application was not made until January 2001. In the meantime, Mrs Wake said she had moved to France (in 1999) and had let Welland House. It was her intention, she said, to retain the converted barn, assuming the restrictive covenant could be discharged or modified, for her own eventual occupation when she returned to live in England in a couple of years.

[9]In respect of the farming operations undertaken in the vicinity, Mrs Wake said that part and parcel of living in a rural community involved being tied up with farming and other countryside activities. Indeed, she had retained two pony paddocks of her own which she had bought after moving to Tixover. Although she recalled that she had initially been bothered by the noise from Mr. Gilman’s graindryer, she said she had never been unduly disturbed by activities in the farmyard, by the floodlights that are sometimes used or by the fact that the street tends to get muddy on occasions during the beet harvest. The use of the yard for lambing was also not a problem, and one of the joys of living where she did was the sight of them in the adjacent fields. Finally, Mrs Wake also said that her tenants of 2 years between 1999 and 2001 had made no complaints regarding the use of the farmyard, and in her opinion there would be no difference, in terms of disturbance, between living in the main house or in the converted barn.

[10]In cross-examination, Mrs Wake accepted that Welland House had been unoccupied and on the market in its entirety for almost a year. This was for financial reasons but the situation was improving, and she hoped that she would be able to retain a property in Tixover in the long term. She said she would sell the main house if her section 84 application was successful but, at the moment, it was being offered with the barn, to ‘keep the bank manager happy’ with no mention of the planning permission or restrictive covenant.

[11]Mr. Sheard is a chartered surveyor, a member of the Royal Town Planning Institute and a partner in Matthews and Son, Chartered Surveyors of London WC1. He has over 30 years experience in valuation, town and country planning and compensation matters and has previously given expert witness evidence to this Tribunal and the High Court. His report detailed the planning background of the proposed development, and by reference to the judgment in Re Bass Ltd

(1973) 26 P & CR 156

considered, under section 84(1)(aa) of the Act: i) Whether the proposed user was reasonable ii) Whether the restriction impedes that user 7 iii) If so, in impeding that user, does the restriction secure practical benefits to the objectors iv) If so, are those benefits of substantial value to the objectors v) Is impeding the reasonable user contrary to the public interest vi) If the answer to (iv) above is negative, or if the answer to (v) above is positive, would money be adequate compensation Furthermore, under section 84(1)(c) of the Act, whether there would be any injury to he objectors if the discharge or modification were granted.

[12]The planning permission that had been obtained on 3 June 1997 was, for the “change of use and extension to barn to create a dwelling house”, and Listed Building Consent had also been granted. None of the conditions that were applied to both of those permissions were, Mr. Sheard said, of any significance in relation to this application. His investigations revealed that the Local Planning Authority, Rutland County Council (“the LPA”), had granted a number of other permissions over the past 9 years including: Erection a pair of semi-detached cottages on the land to the north of the subject land, between Welland House and The Cottage. Planning permission for this development had initially been obtained by the objectors in 1989 or earlier, was renewed in 1996 (ref : 96/0864) and renewed again in 2001 (ref: 2001/0101). In order to establish exactly where the proposed cottages were to be located Mr. Sheard said he sought a copy of the plan that had accompanied the application and had received a plan showing two detached houses and garages. However, despite being assured by the LPA that that plan was correct, it was agreed that the permission was indeed for a pair of semi- detached properties – these, according to Mr. Gilman, to be located closer to The Cottage than to the subject land. A detached house in the grounds of Peets Cottage, Tixover. This was a new outline permission (ref: OUT/2000/0976) granted for a single dwelling on land further to the north of the subject land, approaching the junction of the village street with the main A47. Two proposals for the erection of stable blocks within or adjacent to Manor Farm, Tixover. These were granted in 1993 (refs: 93/0076 and 93/0475).

[13]Mr. Sheard said that consideration of the Rutland Local Plan (Deposit Version - August 1996) showed that Tixover was not the subject of a specific village policy either advocating or restricting further development, and was therefore subject to the general development control policies. The planning history within the village demonstrated that there was an ascertainable pattern relating to the grant of permission for appropriate types of development, there having been no refusals on this side of the village in the past 9 years. 8

[14]In his opinion, considering the questions to be answered in connection with section 84(1)(aa), the detailed permission that existed for the proposed conversion and extension of the barn was a reasonable user. The fact that planning and listed building consents existed indicated such to be the case, that user being acceptable for planning purposes, although Mr. Sheard acknowledged that, on its own, that was not determinative of the issue.

[15]In answer to the second question under this section, Mr. Sheard said that insofar as the proposed user could not be implemented without breaching the restrictive covenant, clearly that user was impeded.

[16]Apart from the roadway, the land that has the benefit of the covenant surrounds the subject land on 3 sides, the objectors’ holding being both agricultural and residential comprising the major part of this part of Tixover. However, Mr. Sheard said that he could not identify any benefits, practical or otherwise, that could possibly flow from preventing this perfectly reasonable development going ahead. The residential properties in the objectors’ ownership, and which all have the benefit of the covenant, are all far enough away not to be affected in any way and, in any event, it was not being pleaded by the objectors that they would. The objection was in connection with the agricultural activities within the benefited land, specifically within the yards and buildings immediately opposite the subject land and in respect of the pumphouse.

[17]Presumably, Mr Sheard said, the objectors were concerned that if any new occupier of the barn, when converted, were to complain about noise from the farmyard or pumphouse, or smells emanating from any of the seasonal agricultural activities, the objectors might be obliged to abandon or modify those activities. Thus, in objecting to the application, they were seeking to avoid any possibility of those consequences. However, Mr. Sheard said that it was a fact the activities they were referring to had been carried on for a number of years, there had been no complaints of the kind they were suggesting might be made, and there was nothing to indicate that, in an area such as this, any such complaints would be likely.

[18]However, as far as noise from the pumphouse was concerned, with it being so close to the proposed development, different considerations may apply. Although he had not heard it in operation, Mr. Sheard accepted that without some form of modification, the pump might be audible from the new property, and might therefore cause intrusion. Nevertheless, there was no reason at all why a suitable acoustic hood could not be provided to cover it and deaden any minor hum that might emanate from the equipment.

[19]The conclusion therefore, both in respect of the agricultural activities and the pumphouse was that, in reality, the restriction does not secure the benefit to the objectors for which they contend. With there being no benefit, the question of whether there was any substantial value or advantage did not apply.

[20]As to whether money would be adequate compensation for the loss of such benefits, as no benefits accrue, again that question did not need further consideration. The only possible 9 aspect under this head was that if it did, indeed, become necessary to provide an acoustic hood to the pump, the objector would need to be compensated for the cost of providing it.

[21]Regarding section 84(1)(c), Mr. Sheard said he had considered whether there could be any risk that granting the application might form a precedent for future applications under the Act, to the detriment of the objectors. This was the ‘thin end of the wedge’ argument that had been considered in Re Forgacs

(1976) 32 P & CR 464

and could only be of consequence if there were other properties within the village, not in the objectors’ ownership, that were subject to similar restrictive covenants benefiting the objectors’ land, and he was not aware that any such restrictions existed.

[22]Mr. Sheard said in any event, no other properties could possibly be affected by the pumphouse and, as regards the agricultural activities, there were no separately owned houses in the vicinity of the yards and buildings, the nearest being Bankside that was some 90 metres to the north. That property was more affected by traffic noise from the nearby A47, and the likelihood therefore, of any objection or complaint about the farming activities being forthcoming, even if a restriction did exist, would be minimal. Even if such complaints were forthcoming, the likelihood of it resulting in the cessation of farming activities would be virtually non-existent.

[23]As to the likelihood of any additional new properties being proposed in the area, Mr. Sheard said that despite the policies that had been previously adopted by the LPA, a number of the currently undeveloped curtilages in the vicinity were covered by Policy EN5 of the Local Plan, as amended, this serving to considerably limit the potential for further new development in this part of the village. In conclusion, therefore, Mr. Sheard said he could see no means by how the grant of this application could possibly cause injury to the objectors under section 84(1)(c) of the Act.

[24]There was absolutely no realistic chance that the objectors’ continuing agricultural activities could possibly be jeopardised if the application were granted. The risk of a new occupier objecting to the farming activities was no greater than that which already existed, and as to the noise from the pumphouse, that problem (which in any event was negligible) was easily remedied by the provision of an acoustic hood. For these reasons, considering that the requirements of section (aa) were satisfied and there could be no risk of injury in connection with section (c), Mr. Sheard said it would be appropriate to discharge or modify the restriction to permit the proposed development. Furthermore if the question of compensation were to be considered appropriate, the cost of the provision of an acoustic hood to the electric pump would be sufficient.

[25]In cross-examination, Mr. Sheard admitted that he had not inspected the LPA’s files, other than in respect of the copy information he had received in answer to specific queries, and was unaware of whether there had been any environmental assessments carried out in respect of any of the applications that had been made, although he thought it unlikely that they would have been in this particular area. 10 Submissions

[26]Miss Taskis said that the application under grounds (aa) and (c) of section 84(1) of the Act for discharge or modification of the restrictive covenant, was to permit the development of an existing outhouse for use as a separate dwelling. There was no argument that the objectors were entitled to the benefit of the restriction which limits the use of the subject land to a single private dwelling house with curtilage, but there was nothing to prevent the use of the barn as part of the main dwelling (Welland House) for occupation as part of a single household. This had been established in Wrotham Park Settled Estates v Naylor

(1990) 62 P & CR 233

where a covenant to use farm premises only as a private dwelling house for the sole occupation of the tenant and his family was not broken by the occupation of a cottage on the premises (following conversion of a cowshed), by caretakers working for the tenant. This meant that the objectors in this case were powerless, under the terms of the restriction, to prevent the conversion and occupation of the barn as such by servants of the main household.

[27]The decision in Re Forjacs was of the same effect and therefore it was submitted that the restriction provided no real protection to the objectors because the building could be occupied, so long as that occupation was by individuals who could be classed as part of the household. Having said that, it was acknowledged that employees occupying part of the premises in connection with their employment would be less likely to object to noise or farming activities than separate owners.

[28]In connection with ground (aa) it was accepted in connection with the series of questions raised in Re Bass that no issue was being taken with the first two. As to the third and fourth questions, it was the applicant’s case that no practical benefits of substantial value or advantage were secured to the objectors by impeding the proposed user. The proposed development was entirely concordant with the village environs, and the visual impact and separate use of the barn would cause negligible disturbance. Indeed, the objectors were not suggesting otherwise.

[29]The only objection that was being made was on the basis that there was a possibility of complaints from future occupiers in respect of the farming activities and noise from the pumphouse, and the risk that their activities might have to be curtailed. The ability to avoid objections was not a benefit secured by the existing covenant and is accordingly not a benefit of a type which falls within ground (aa). A restriction can only be said to ‘secure’ a benefit if that benefit results directly from the observance of its terms, as determined in Stockport Metropolitan Borough Council v Alwiyah Developments

(1986) 52 P & CR 278

. The benefit alleged here – the ability to avoid objections – shows the perceived risk to be the occupation of the barn by possible complainers. The covenant does not prohibit occupation of the barn for the reasons that had been given, and the perceived practical benefit of the barn not being occupied was not, therefore, secured by the covenant.

[30]As to the objectors’ predictions that occupiers of the barn as a separate dwelling might complain, Miss Taskis said that the barn was set well back from the village street (further than Welland House was), at a lower level than both the street and the yards and buildings that were at a higher level still. The stone wall that separated the subject land from the street 11 provided a substantial screen, as did the retaining wall to the yards and barns on the other side. Add to that the fact that only the roof and eaves of the existing barn and the proposed extensions would be above the height of the subject land’s boundary wall, and it was evident that both the topography and the position of the building provided a significant shield from the farming activities. The level of intrusion to the occupiers of the barn would be no more, and possibly somewhat less, than it already was with Welland House.

[31]The applicant had lived at Welland House for over 20 years and had not complained of the activities. If the level of intrusion was likely to be objectionable, it would be most unlikely that Mrs Wake would wish to retain and occupy the barn herself in the future, as she intended.

[32]The level of control which the objectors alleged they had in respect of a number of the farm cottages it owned was, it was submitted, illusory. Farm workers and retired employees occupying the cottages were most unlikely to object, not only because of the nature of their work, but also because they would not want to risk creating difficulties with their employer or former employer. In any event they were protected tenants under the Rent (Agriculture) Act 1976 and could not therefore be evicted on the grounds that they had made a complaint of nuisance. It was accepted that there was a higher level of control in connection with the properties that were let on Assured Tenancies to people from outside the village, as Mr. Gilman, despite warning prospective tenants prior to their occupation of the possible effects of the agricultural activities, had the ultimate veto when it came to renewal if tenants did, indeed, complain.

[33]Miss Taskis said that the fact the objectors had obtained planning permission for two properties on their own land immediately to the north of the subject land showed clearly that they were willing to contemplate new occupiers in the immediate vicinity. Those occupiers would be just as affected, and just as likely to complain if, as the objectors maintained, complaints were indeed a real possibility.

[34]In the most unlikely event of a complaint being forthcoming from a new occupier of the barn, or any other property in the village for that matter, the prospect of the objectors having to cease or curtail their farming activities in consequence was virtually nil. Any claim for nuisance would be assessed with regard to the nature of the locality and the fact that farming activities have been carried on there for many years, and the prospects of a finding in the courts that there was an actionable nuisance were negligible.

[35]As Mr. Sheard had said, all the evidence showed that the present restriction secured no, or no substantial benefit or advantage to the objectors, and in terms of compensation if indeed it were held that the objectors were entitled to it should be limited solely to the cost of providing soundproofing to the pump. That would be minimal in terms of cost and, indeed, may be unnecessary.

[36]Finally, in connection with ground (c), Miss Taskis said that for the reasons that had been rehearsed, any discharge or modification to permit the proposed development would not 12 result in any injury to the objectors. There was only to be one more household and there was no real question of any precedents being set.

[37]Whilst it was accepted that with the applicant being the original covenantor there was a requirement for a slightly higher standard of proof, if she was to succeed in persuading me to exercise my discretion, it was to be remembered that the covenant was entered into some 20 years ago. On the grounds that the objectors had identified, there was nothing that had occurred during that period to suggest that their predictions would come true. OBJECTORS’ CASE Evidence

[38]Mr. Gilman is the second objector and a director and shareholder of the first objector. The objectors are joint tenants of Manor Farm, Tixover (the benefited property) which is a mixed arable and livestock holding of approximately 737 acres (290 ha) that is now farmed as part of a larger, 1,700 acre (688 ha) holding. Manor Farm was acquired by the objectors from The O’Brien Trust in 1985, it having previously been farmed by them as tenant farmers from 1971. Welland House had been sold to the applicant by the O’Brien Trust in 1981, prior to the objectors’ purchase of Manor Farm, and Mr. Gilman said that prior to that date it had not been included within his tenancy, it being the subject of a separate letting. However, it was accepted that the benefit of the restrictive covenant, the subject of this application, had been transferred to the objectors on their acquisition of the farm.

[39]He said that he had not objected to the planning application for conversion and extension of the barn because he was aware of the covenant and the fact that he had the right to veto the proposals. It was important that the functional integrity of the yards and buildings opposite the subject land was maintained, and in objecting to the application was seeking to prevent the prospect of any restriction or curtailment of the farming activities, such, if it occurred, being potentially ruinous to the business.

[40]Mr. Gilman described the activities in detail. From February to April each year the yards and buildings at this location are used for lambing. There are 2,000 ewes on the farm, and at any one time there will be about 800 in the yards where they spend 2 or 3 days before being moved back out to the fields with their new lambs. This is a 24 hour operation with floodlighting constantly in use during the hours of darkness. About 130 lambs are born each day and feeding takes place at 6 am and 4 pm - these times being particularly noisy. There is a constant shuttle service of tractor and trailer moving the sheep around, with resultant mud on the road. With so many sheep in the yards and buildings, a considerable amount of animal waste is generated, this needing regular ‘mucking out’, and some people might find the smells offensive.

[41]In May, shearing takes place in the yards. It takes about 1 week, and with the ewes being separated from their lambs, this is a particularly noisy time. Again the animals need transporting to and from the fields, this activity lasting from 6 am to 6 pm each day. One of the sheds at the rear of the yards is used weekly during certain months of the year for holding 13 up to 300 lambs ahead of them going to slaughter. Again, with them being separated from the ewes, this is particularly noisy. There were also worming, drenching and feet trimming activities during August and September and again this means large numbers of sheep are ferried to and from the yards.

[42]From October to March one of the yards, immediately opposite the subject land, is used as the main hard-standing for the sugar beet crop for which the farm has an annual contract for 2,100 tonnes. On average, about 5 trailer loads of beet are delivered into the yard each day, with 2 lorry loads being collected daily, 6 days per week. The beet is stacked in the yard by a fork-lift which, for health and safety reasons makes a loud ‘beeping’ noise when reversing. This vehicle is also used for mucking out and other activities including loading and unloading hay and stray into the Dutch barn, and is in use 7 days a week, often late into the night.

[43]As to the pumphouse, Mr. Gilman said that apart from domestic drinking water, all the farm’s water requirements were obtained from a spring adjacent to the River Welland, and pumped to a header tank located elsewhere on the farm, to the north. Whilst acknowledging that the pump was not noisy, he thought that for someone living virtually on top of it, as they would be if the barn was occupied, the low hum that was emitted might become an annoyance, especially at night in the summer when people tended to have their windows open.

[44]Mr. Gilman said that anyone would be aware of media reports of people moving to the countryside in the hope of achieving a rural idyll, only to find themselves becoming upset by farming noises and smells. This can lead to complaints which might involve local authorities and courts. All the residential properties in the immediate vicinity of the yards and buildings he was referring to (with the exception of the subject land) were in the farm’s ownership, and as such Mr. Gilman said they had an important measure of control. The residential properties that are not let to farm workers or retired employees are let on assured shorthold tenancies, and great care was taken to point out to prospective tenants that they would be living right in the middle of a working farm, and they must expect some smells, noises and dirt generated by the farming operations.

[45]The only property that was not in the objectors’ control was Welland House, and Mr. Gilman said that whilst he freely admitted there have, over the years, been few complaints about Manor Farm’s activities, the applicant had complained on a couple of occasions, and he was keen to ensure that the number of people who were likely to complain was not increased. With the barn being immediately adjacent to the pumphouse, and opposite the very busy yards and farm buildings, discharge or modification of the restriction would result in that possibility occurring.

[46]In Mr. Gilman’s view the restriction did indeed afford a real, practical benefit (albeit a negative one) of substantial value or advantage, the loss of which could not be adequately compensated for by money. 14

[47]In cross-examination he said that the reason the objectors had sought and obtained planning permission for the pair of semi-detached cottages on the land to the north of the subject land was to produce some capital appreciation. There was no intention of selling them away from the farm, if indeed the permission was ever implemented, but he accepted that if they ever had to, for cash-flow reasons, problems over potential complaints could arise. However, the site was that much further away from the noisiest and busiest yards that were right opposite the subject land.

[48]Mr. Gilman said that the day before the hearing he had obtained a set of the sales particulars for the subject land from the applicant’s agents who said that the property was still on the market. He noted that there was no mention on the details of the planning permission on the barn, or the restrictive covenant. When he asked about it, the agent had said that it was hoped the restrictive covenant would be lifted ‘this week’.

[49]As far as the pump was concerned, whilst he accepted it was unlikely to be operational late at night, it could just be heard from outside the barn and as he had said in evidence, it could become an annoyance in summer, However, it was acknowledged that the provision of an acoustic hood might well solve any problems. Submissions

[50]Mr. Plummer said that in seeking the discharge or modification of the restrictive covenant, the onus was on the applicant to show that the relevant requirements of section 84(1) were satisfied and that, as original covenantor, there was arguably the requirement for a somewhat higher proof of justification. This was clear from the decision in Re Farrow (2000) LP/18/2000 LT (Unreported) where the Member Mr. P H Clarke FRICS said, at para 26:

“26. The approach of this Tribunal has been to impose a higher burden of proof on an applicant who is the original covenantor. In Re Rudkin the Member (Erskine Symes QC) said (page 79): “The Tribunal is, I think, justified in requiring from an original covenantor a somewhat higher proof of justification for the modification sought”

. This approach can be seen in Re Wynyates Smith Ltd, Re Robinson and O’Connor, Re Beech and Re Cartner. I also bear in mind the observation of Dankwerts LJ in Cresswell v Proctor (page 914G) that ‘The sanctity of contract must have some relevance’.

[27]My conclusion on this matter is therefore that, although it is open to Mr. Farrow to apply to this Tribunal for the modification of the restriction, as he is the original covenantor there is a greater burden of proof on him to show that the requirements of section 84(1) are satisfied”. The applicant had failed to make out a ‘case positive’ which she was required to do. 15

[51]It was accepted that the objectors were entitled to the benefit of the covenant and it was common ground that, in respect of the questions asked in Re Bass in connection with the application under ground (aa), that the proposed user of the barn was reasonable and that the covenant impedes that user. The questions, therefore, were whether the proposed user secured practical benefits to the objectors, and if so, are those benefits of substantial value or advantage? If they are, would money be adequate compensation?

[52]As to the first question, Mr. Plummer referred to Gilbert v Spoor

[1982] 2 All ER 576

where Eveleigh LJ said, at 579:

“The words of the subsection [subs-s (1A)], in my opinion, are used quite generally. The phrase ‘any practical benefits of substantial value or advantage to them’ is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather to a restriction which secures any practical benefits. The expression ‘any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit them in the manner contended for. When one remembers that Parliament is authorising the Lands Tribunal to take away from a person a vested right either in law or equity, it is not surprising that the tribunal is required to consider the adverse effects on a broad basis”

. There was no requirement that the objectors have in fact enjoyed or been in the habit of enjoying the benefit claimed. The benefits may be relied upon whether or not it was a purpose of the restriction to confer them. It did not matter that the benefits were merely incidental to the original purpose of the covenant. Whilst in many cases the benefit will be a positive one (such as the preservation of a view), almost inevitably the benefit or advantage will have a negative element. It was, Mr. Plummer said, perfectly valid for an objection to be made to prevent development taking place that would potentially impact on the objector’s particular use of his land. That was the situation in this application which was analogous with Re Davies (1999) LP/32/1999 LT (Unreported). In that case, the Member, Mr. N J Rose FRICS said, at para 23: “23. At the hearing Mr. Armour said that the purpose of imposing the covenant was four-fold. Firstly, it provided protection to the forest and trees. It enabled the objector to prevent development taking place too close to the edge of the forest to the south, west and north of the subject land. Such development could potentially damage certain trees and force the objector to fell them prematurely in order to prevent such damage. The covenant could also help to avoid problems arising from the objector’s need to drain water into the road in order to keep it away from the trees…. Then at para 27 he said: …..However, in the light of all the evidence and my site inspection, I am satisfied that the restrictive covenant provides a legitimate benefit to the objector in enabling it control the form of development that takes place on the subject land. In particular, as Mr. Armour indicated in his letter of 12 May 1995, the covenant enables the objector to prevent building too near to the existing forest edge. This control is essential if the objector is able to fully protect its forest". 16

[53]The subject land is the only property in the vicinity of the objectors’ main farming operations not under their control. The covenant had the effect (whether intended or merely incidental) of imposing a ‘cordon sanitaire’ which helped to preserve the value of Manor Farm as a working unit. The objectors wish to prevent any additional possibilities of objections over and above those which may (and indeed had in the past) emanate from the applicant. Although objections in the past had been few and far between, it was the objectors’ case that with the barn being so close to the yards where the main farming activities were carried out, the likelihood of future problems would be enhanced by the discharge or modification of the covenant. The front of the proposed new property was only 10.2 metres away from the yards referred to, whereas Welland House was some 34 metres away.

[54]Similarly, the operation of the pumphouse could create complaints and the effect of the extraction of water being curtailed (if it were to come to that) and having to be found from elsewhere would result in substantial additional costs being incurred, not to mention the inconvenience.

[55]Any restriction on the farming activities, whether it be in the yards and buildings, or in respect of the water supply, would be so prejudicial to the farming operations there was no question of money being adequate compensation for the loss of the benefit that the covenant affords. In that respect, Mr. Plummer referred to the fact that the words ‘value or advantage’ were not intended to be assessed in terms of pecuniary value only. In Re Bass the Member J Stuart Daniel QC said, at 162:

“I was pressed by Mr. Eyre to say that since the objectors’ expert surveyor could not himself assess figures for depreciation in the value of the objectors’ property it could hardly be said that the covenants conferred benefits of substantial value or advantage. I think the words ‘value or advantage’ rather emphasise that the benefits are not intended to be assessed in terms of pecuniary value only”

Indeed, as in this case, it will often be difficult if not impossible to place any monetary value on the ‘value or advantage’.

[56]As to the planning matters to be taken into consideration under section 84(1B), Mr. Plummer said that the fact there had been so few permissions granted in the vicinity in the past 12 years was hardly a pattern which could influence the Lands Tribunal’s decision. All that history did was highlight the ‘value or advantage’ of the cordon sanitaire that had been referred to.

[57]In respect of the application under ground (c), it was the objectors’ case that if the Tribunal accepts their arguments under ground (aa), then it follows they would suffer injury by the discharge or modification of the covenant and that, in consequence, the application under ground (c) must therefore fail. 17

[58]Responding to the applicant’s closing submissions, Mr. Plummer said the proposition that the barn could be occupied as accommodation in connection with the occupation of Welland House was wrong. The situations in Wrotham Park and Re Forjacs were different. There was no question of separate family accommodation in the former – if the subject land were to be occupied as anything other than a single private dwelling house with curtilage, there will be a breach of the covenant. Certainly, if the applicant had converted the barn for occupation by her mother, as she originally intended, the covenant would have been breached. DECISION

[59]Before looking specifically at the requirements of section 84(1)(aa) and (c) of the Act, and the merits of this application, I consider two matters of general import – standard of proof and planning. Firstly, where an application is made by an original covenantor, the need for a higher degree of proof or justification is well established. The question was, in my view, clearly dealt with in Re Farrow, in the passage that Mr. Plummer quoted. Only when the applicant has shown that the requirements of section (aa) and (c) are satisfied do I have the jurisdiction to discharge or modify the restriction and, even then, I have a discretion as to whether to grant the application. It follows that, where the application is by an original covenantor, the exercise of that discretion (if that question comes into the equation) will be heavily influenced by that fact.

[60]As to planning permission, Mr. Sheard, whilst acknowledging that the existence of such was not sufficient to be, on its own, determinative of the issue in question, said that it indicated the proposed user was reasonable and as such he could identify no benefits, practical or otherwise, that could flow to the objectors from the prevention of this perfectly reasonable development. Neither the physical development, nor the use itself would have any, or any significant, negative effect on the objectors or any of their adjacent properties. The pattern of permitted development in the area over the past 9 years was, he said, indicative that developments of the type proposed were not contrary to the development plan for the area.

[61]Although the parties have agreed that the proposed user is reasonable, and that the restriction impedes that user, I took Mr. Sheard’s comments to imply that the fact planning permission (and Listed Building Consent) had been granted should carry some weight in the determination of this matter.

[62]Section 84 1(B) of the 1925 Act requires the Tribunal, when considering a case falling within subsection 1(A) “to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permission 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”. However, it is now well established that control of development by the grant or refusal of planning permission and control by restrictive covenant are different, and that “while the two regimes impinge upon each other to some extent, they constitute different systems of control and each has, and retains, an independent existence” (per Fox LJ in Re Martin

(1988) 57 P & CR 119

at 124-5). The planning 18 permission for the proposed development is not therefore conclusive, but it is (Re Martin at 125): “…merely a circumstance with which the Lands Tribunal can and should take into account when exercising its jurisdiction under section 84. To give the grant of planning permission a wider effect is, I think, disruptive of the express statutory jurisdiction conferred by section 84. It is for the Tribunal to make up its own mind whether the requirements of section 84 are satisfied”.

[63]Whilst taking account of the planning situation, the exercise which I have to undertake is quite different from that undertaken by a planning authority in considering whether or not to grant permission – I am concerned with whether the objectors’ property rights should be taken away. Therefore, although the fact that planning permission for the development has been granted, and the fact that there is no issue over whether such a use would be reasonable are considerations to be borne in mind, they are not determinative of the question of whether the restriction secures practical benefits of substantial advantage to the objectors.

[64]Principles established, I now turn to the applicant’s submissions regarding user and whether or not the redeveloped barn could be occupied as ‘part of a single household’. Miss Taskis referred to Wrotham Park and Re Forgacs and said they proved that if the building were to be used for the occupation of members of the family, or as servants quarters, then the restriction would not be breached. Therefore, if the property were to be occupied by a separate family it would, in reality, make no practical difference.

[65]I accept that the barn could be converted and used for the occupation of members of the same household as Welland House, whether members of the family or servants. I do not accept, however, that occupation by a separate family would make no difference in terms of the practical benefits secured by the covenant

[66]I now turn to consider the requirements of section 84(1)(aa) and (c). As I have already said, the parties have agreed that the proposed user of the application land is reasonable and that the restriction impedes that use. The objectors also do not claim compensation on the grounds that the restriction affords a real, practical benefit (albeit a negative one) of substantial value and advantage the loss of which could not be adequately compensated by money. The only question for my determination, therefore under section (aa), is whether or not the restriction secures the practical benefits which the objectors claim.

[67]In considering whether the restriction secured a practical benefit of substantial value or advantage Miss Taskis said that, in connection with the objectors’ only argument – that it prevented the possibility of complaints about the farming activities and noise from the pumphouse – this was not something secured by the covenant. A restriction could only be said to ‘secure’ a benefit if that benefit resulted directly from the observance of its terms, and in this regard she referred to Stockport MBC where Eveleigh LJ said, at 281: “The benefit envisaged must be practical one as opposed to a pecuniary one, that is the practical benefit which is afforded by the observation of the covenant. Thus the 19 subsection [1(a)] exempts from discharge or modification those covenants whose preservation will secure a practical benefit. Bargaining power is only a benefit when it results in the receipt of the price upon the covenant being discharged. Such a benefit cannot be of a kind contemplated by the subsection for it results from the discharge and not the continuance of the covenant”.

[68]Miss Taskis said that the benefit alleged here is the ability to avoid objections to the farming operations, the risk being from the occupation of the barn by likely complainers. This is a risk, she said, that could equally arise under the terms of the existing covenant. The covenant does not, as she had explained, prevent the conversion and extension of the barn into residential accommodation – only if it then became a separate dwelling. Therefore, the perceived benefit of the barn being unoccupied is not secured by the covenant, but simply by the present, non-occupational, user of the barn. Thus, the covenant does not secure to the objectors the practical benefit they claim.

[69]On the other hand, Mr. Plummer said there was no requirement for the objectors to have, in fact, enjoyed or have been in the habit of enjoying the benefit claimed. The benefits may be relied upon whether or not it was a purpose of the restriction to confer them, and it did not matter that the benefits were purely incidental to it. He said it was perfectly valid to object to development taking place if that development would impact on the objector’s particular use of the benefited land. This was demonstrated in Re Davies, where precisely the same question was at issue. The covenant had the effect of imposing a ‘cordon sanitaire’, helping to preserve the value of Manor Farm as a working unit.

[70]I accept Mr. Plummer’s argument. The question is simply one of fact. Does the restriction in fact secure a practical benefit of substantial value or advantage to the objectors? I am satisfied that it does. They have an intensive farming operation, a significant part of which is concentrated on the yards and buildings directly opposite the applicant’s land. It is, in my view, perfectly reasonable for the operators of that farm to wish to maintain control of their activities without running the risk of having to deal with objections from new occupiers. It does not matter whether or not the maintenance of that control was the reason the restriction was imposed when the land was transferred in 1981. The fact is that the restriction does, as I have concluded, serve the purpose on which the objectors based their case.

[71]As to the argument that it is now over 20 years since the covenant was imposed, no evidence was adduced to suggest that it was obsolete, or that the nature of the area had changed sufficiently to bring into question its ongoing relevance. I am also mindful of the fact that the applicant was the original covenantor, and as such the standard of proof that the conditions of sections (aa) and (c) are satisfied must be somewhat higher than if that were not the case.

[72]As to the likelihood that any complaints of such a serious nature as to lead to the cessation or the curtailment of the farming activities (including the pumping of water) would be forthcoming, I doubt that that would happen. I accept what Miss Taskis said in this regard. Any claim for nuisance would be assessed having regard to the nature of the locality 20 and the fact that intensive farming operations had been carried on in the vicinity for many years, and the prospect of an actionable claim for nuisance succeeding (on the basis of what I would describe from my inspection, perfectly normal agricultural activities) would, in my view be extremely remote.

[73]Nevertheless, a risk that currently does not exist would be there, and however small it may be, if the restriction were discharged or modified, there is a possibility that disputes could arise with a new occupier who may be unused to the noise, smell and disturbance that such an operation will cause. Even if complaints that were made could not be construed to be of such significance that actionable nuisance had really occurred bearing in mind the nature of the area and the sort of activities that can be expected in it, such complaints would need to be dealt with. A significant amount of time, cost and stress is very often caused by disputes between neighbours, and there is regular publicity given to high profile cases. The opportunity to avoid such a risk must, in my judgment, be of not insignificant value.

[74]Although Mr. Sheard said that no complaints had been made by the applicant in the 21 years she had resided at Welland House, Mrs. Wake did say that she had once complained about the noise from a grain dryer, and Mr. Gilman said that there had also been a complaint from her in respect of some crop-spraying activities. These complaints did not appear to me to have created any lasting problems between the parties but such disputes certainly can result in simmering animosity. In my judgment, bearing in mind the intensive nature of the objectors’ operations, it is quite reasonable for them to want to protect their position against potential future problems if, as is the case here, they have the ability to do so through a restrictive covenant.

[75]It is not possible, in my view, to attach monetary value to the control that the restriction secures, but as Mr. Plummer pointed out, the words ‘value or advantage’ are not intended to be assessed in terms of pecuniary value only.

[76]It follows that I am not persuaded by the applicant’s arguments relating to the position of the barn in relation to the buildings and yards, and the fact that the nature of the proposed conversion is such that the principal accommodation would be facing away from the farm. It is, I think, sufficiently close to the centre of the agricultural operations to be of concern to the objectors. As to the pumphouse, the pump was operational at the time of my inspection, and it could only just be heard from outside the building when the door was closed. On that aspect, I accept Mr. Sheard’s argument that the provision of an acoustic hood, or indeed, more substantial soundproofing within the pumphouse would be quite sufficient to allay any potential problems. However, that was only one of the two grounds for objection, and as I have found in favour of the objectors on the other matter, my conclusions on this point do not affect my overall decision.

[77]In summary, I find that the restrictive covenant secures to the objectors practical benefits that are of substantial advantage to them. The proposed discharge, or modification to permit the conversion and extension of the barn to provide a separate residential dwelling house on the subject land, would result in the objectors losing the control over their operations that they effectively now have. 21

[78]Regarding the application under section (c) – that no injury would be caused to the objectors by the discharge or modification of the restriction, it is clear that, as I have found there to be a practical benefit of substantial advantage, then to have discharged or modified the restriction would indeed have resulted in injury.

[79]The requirements of section 84 1(aa) and (c) of the 1925 Act are not satisfied for the reasons given above and accordingly I refuse the application. I should add that in coming to my conclusions I have taken into account the fact the objectors have in the past applied for and received planning permission for the erection of two semi-detached cottages on their own land just along the road from the subject land. I accept Mr. Gilman’s statement relating to the reasons for the application. Also, the fact is that the development would be on land closer to The Cottage than to the boundary with the subject land and whilst being approximately equidistant from the main entrance to the yards and buildings in the opposite direction, would be away from the main areas of activity and at a much lower level to the road. These factors lead me to conclude that the potential for complaints, if the new cottages were sold away, would be very much less than in relation to the barn.

[80]This decision concludes my determination of the substantive issues in this application. It will take effect as a decision when the question of costs has been decided, and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and order 61 rule 1(1) of the Civil Procedure Rules will come into operation. The parties are invited to make submissions as to the costs of this application and a letter accompanies this decision setting out the procedure for submissions in writing. DATED: 17 June 2002 (Signed) P R Francis FRICS ADDENDUM ON COSTS

[81]The objectors sought their costs on the grounds that the application was refused in its entirety. No submissions have been received from the applicant. 22

[82]There being no reasons for this Tribunal to exercise its discretion, and in accordance with the principle that costs follow the event, I determine that the applicant shall pay the objectors costs, such costs, if not agreed, to be the subject of an assessment by the Registrar. DATED: 11 July 2002 (Signed) P R Francis FRICS