PETER SIDNEY FURNELL and NORMA FRANCES FURNELL JACK KEITH PEARCE and MARGARET ISOBEL PEARCE LP/3&13/2001

UPPER TRIBUNAL

LANDS CHAMBER

LP/3&13/2001

Case No LP/3&13/2001

Between

PETER SIDNEY FURNELL and NORMA FRANCES FURNELL JACK KEITH PEARCE and MARGARET ISOBEL PEARCEApplicant

Before

The President

Venue 48/49 Chancery Lane, London WC2A 1JR

Date 16 August 2002

Property: White House Farm &, St Edmund’s Barn, South Burlingham, Norfolk, NR13 4EU

Catchwords: RESTRICTIVE COVENANT – restrictions requiring consent to alterations to houses and preventing satellite dishes – alterations carried out without consent and satellite dishes installed – discharge or altenatively modification sought on grounds (b) and (c) – partial discharge ordered in respect of works already carried out

[1]The applicants in these two applications under section 84 of the Law of Property Act 1925 own adjoining properties in a group of former farm buildings that have been converted to residential use. As Church Farm, the buildings consisted of the farmhouse and extensive agricultural buildings, mainly constructed of brick and with thatched and tiled roofs. The group stands in the open Norfolk countryside on a lane called Church Road. On the opposite side of the lane is St Edmund’s Church, in flint with a thatched roof. In the early 1990s Mr Michael Joseph Flynn, who is the sole objector to these applications, bought the group of buildings, with the exception of the northern part of the farmhouse, with the object of renovating them and converting the barns to residential use. The southern part of the farmhouse was renovated first, and Mr Flynn and his family occupied it before selling it, under the name White House Farm, to the applicants Peter and Norma Furnell. The sale was completed on 31 January 1994. Work proceeded on the barns. Mr Flynn and his family moved into the northern part, known as Church Farm Barn. The southern part, known as St Edmund’s Barn, was sold to the applicants Jack and Margaret Pearce under a transfer dated 19 October 1995. In 1997 Mr Flynn and his wife were divorced. The main part of Church Farm Barn was transferred to Mrs Flynn, and Mr Flynn retained a small single storey building to the north. Church Farm Barn is now owned by Mr and Mrs Upson. The single storey building that Mr Flynn retained was converted into holiday units. In October 2000 Mr Flynn sought planning permission to use these units as a permanent dwelling, but planning permission was refused, and his appeal against the refusal was dismissed by a planning inspector on 28 November 2001.

[2]The transfer from Mr Flynn to Mr and Mrs Furnell of White House Farm contained a number of covenants on the part of the transferees. They included the following:

“(iii) Not without the consent of the Transferor (such consent not to be unreasonably withheld) to make any alteration to the elevation or the plan of the property hereby transferred. (v) Not to erect or cause or permit or suffer to be erected attached or placed on any building on the property hereby transferred or on the property hereby transferred any satellite dish or similar television receiving apparatus.”

[3]I will refer to these restrictions as the “alterations” and “satellite dish” restrictions respectively. The benefit of them was annexed to the rest of the land then in Mr Flynn’s ownership, that is to say, what now comprises St Edmund’s Barn, Church House Barn, and the land to the north, containing the holiday accommodation still owned by Mr Flynn. Restrictions in the same terms were imposed on the transfer from Mr Flynn to Mr and Mrs Pearce of St Edmund’s Barn (except that in (v) the words “or on the property hereby transferred” were omitted). The covenant containing the restrictions was expressed to be for the benefit of the land retained, ie what is now Church House Barn and the land to the north. When Church House Barn was transferred, however, no such restrictions were imposed on the transferee. It is the two restrictions in the transfers to Mr and Mrs Furnell and Mr and Mrs Pearce in respect of which the present application are made. In each case the applicants 3 seek discharge of the restrictions on ground (b), consent, and ground (c), no injury, or alternatively modification on ground (c). The modifications that are sought are to substitute respectively for the two restrictions:

“(iii) Not to make changes to the elevation or ground plan of the property hereby transferred that would adversely affect the value of or the reasonable enjoyment of the remaining retained land. (v) Not to erect any satellite dish on the building of the property hereby transferred so as to be obviously visible from the remaining retained land.”

[4]Mr and Mrs Furnell have made a number of alterations to their property without seeking Mr Flynn’s consent. They consist of the following:(a) The erection of a conservatory on the principal (south) elevation.

(b) Pipework from the upper floor to the drainage system at the rear.

(d) A stainless steel discharge to the boiler system

(e) The insertion of a window in the roadside (western) elevation.

(f) Alterations to the elevations of the garage.

(g) Moving the drive. In addition Mr and Mrs Furnell have erected a satellite dish on the side of a chimney.

[5]Mr and Mrs Pearce have made the following alterations to their property. There is disagreement between them and Mr Flynn as to whether Mr Flynn has agreed to these alterations.(a) A steel flue from first floor level to above the ridge of the roof.

(b) A verandah and pergola.

(d) A burglar alarm. In addition Mr and Mrs Pearce have installed a satellite dish on the building.

[6]Mr Furnell appeared for himself and his wife and, with leave of the Tribunal, for Mr and Mrs Pearce. He gave evidence himself and also called Mr and Mrs Pearce. Mr Furnell said that he and his wife had bought White House Farm for £115,000 and he denied, as Mr Flynn had asserted, that this was below market value because of the covenants that had been imposed. The alterations to the house to which Mr Flynn had drawn attention were carried out not long after the purchase. The local planning authority, Broadly District Council, gave planning permission for the conservatory on 12 July 1994. 4

[7]Mr Furnell produced a letter dated 2 August 1996 from Mr Flynn. It referred to a letter of objection by Mr and Mrs Furnell to an application by Mr Flynn for planning permission to convert a barn at Church Farm to holiday accommodation. It noted that Mr and Mrs Furnell had described the proposal as “blatant property speculation” and had said that Mr Flynn blatantly disregarded the rights of his neighbours. In response Mr Flynn said that Mr and Mrs Furnell “sat and moaned about everything” and he accused them of nimbyism. The building for which he sought planning permission was “a considerable distance from your property … It cannot be viewed from your property and quite frankly does not concern you.” Mr Furnell placed reliance on these latter assertions, since the same would apply in reverse, he suggested, to the effect on Mr Flynn of any alterations to White House Farm.

[8]In the letter Mr Flynn went on to say that he had now moved into the main building and had noticed that some pipework had been erected from the upper floor of White House Farm to the drainage system at the rear of the building. Consent had not been sought under the restrictive covenant. In addition a new stainless steel flue pipe had been installed in the single storey part of the house facing the church gate and a stainless steel discharge to the boiler system had also been installed. He asked that the flue be replaced by a brick chimney and the discharge fitting be replaced by one in terra cotta. He threatened legal proceedings if he received no reply within 14 days.

[9]On 28 January 2000 Mr Flynn wrote to Mr Furnell stating that the elevations to the garage at White House Farm had been altered and the drive had been moved. This, he said, was in breach of the covenant because approval to these alterations had not been sought. He threatened legal action if he had not heard within 21 days of Mr Furnell’s plans to comply. Mr Flynn did then start proceedings, though not to enforce the covenant, but he failed to provide particulars of his claim, and his claim was struck out.

[10]Mr Furnell said that in 1999 Mr Flynn had placed a plastic septic tank on Mr Flynn’s land immediately opposite the east window of the church. Mr Flynn later repositioned it and painted a smiling face on it and had placed a caravan next to it. Mr Furnell produced photographs showing the septic tank and the caravan. He had complained to the district council but they had said that there was nothing that they could do about it.

[11]Mr Furnell said that he had not understood the need for consent to the works that he had carried out. He simply signed the documents relating to the sale of the property and his conveyancing solicitor had not explained that he had to get consent for everything. If he had been told, he would not have signed. Mr Flynn had not at any stage raised objection to the conservatory, which, positioned as it was on the front elevation of the house, made a major change in its appearance.

[12]Mr Furnell produced photographs to show White House Farm and St Edmund’s Barn before and after the works of conversion and alteration that had been carried out by Mr Flynn before he sold them. White House Farm had been given a modern extension and modern windows had been fitted in the old part of the house. A new garage had been built. Thus what had been a traditional farmhouse had been completely modified. Similarly St Edmund’s 5 Barn had been modernised, a huge panoramic window had been inserted and there was a garage with an up-and-over door.

[13]As for the window in the road frontage, it was, said Mr Furnell, only one of the number facing the road, and he produced photographs of them. They were all completely different and ad hoc. One had opaque glass. If the large conservatory was acceptable, Mr Furnell said, the small window must also be.

[14]Mr Pearce in his evidence said that when he and his wife purchased St Edmund’s Barn their solicitor, Mrs Revell, advised against doing so in view of the restrictive covenants. He had, however, said to the purchasers of their existing home that they would move. He met Mr Flynn, who said that the covenants would be taken off before they moved in. Mr Flynn said that the solicitors would see to it, but they did not. They went upstairs at the house, and Mr Pearce said that he told Mr Flynn that he would need a woodburning stove. Mr Flynn said:

“I am giving you permission to put a flue in.”

Mr Pearce said that he put the flue in, and Mr Flynn was happy about it.

[15]With regard to the verandah and pergola, Mr Pearce said that he and his wife had a meeting with Broadland District Council about it. Mr Flynn had telephoned Mr and Mrs Pearce to say that they could do what they liked. The burglar alarm was essential. The concrete pantiles had been put on because the old ones blew off. They would mellow. The satellite dish was concealed behind tiles and could only be seen from the fields. Mr Flynn had been present when its installation was being discussed.

[16]Mrs Pearce in evidence said that their solicitor had explained the effect of the covenants before they bought. They therefore went to see Mr Flynn and said that they could not buy with the covenants on. Mr Flynn said that he would take them off. He said that he was a man of his word and they shook hands on it. He was there when the flue was put in. He was perfectly happy about it and said that he would have one like that on his own house. Mr Flynn had also watched while the satellite dish had been put up.

[17]Mr Flynn in evidence said that he had bought all the properties in the group with the exception of the rear (north) portions of White House Farm in the early 1990s. The concept was to try and convert the buildings so that as much as possible they would still look like barns and any domestic clutter could not be viewed from the road or surrounding farmland. Conversion involved thatching and use of reclaimed bricks and pantiles. The intention was to retain the large barn and nearby single-storey building. In each case the applicants were fully aware of the covenants. They had legal advice and willingly entered into the agreement. They were made aware by him that the reason for the covenant was to protect his interest in the long term conservation and appearance of the location. There was and continued to be no objection to any reasonable alteration or modification as long as it was in sympathy and character with the building. Mr Flynn said that he stressed that they were buying the property in each case substantially under the market value because of the conditions of sale. He also stressed that he would be staying at Church Farm long term. In the event, however, in November 1996 his marriage broke up. He remained at Church Farm Barn, which he owned outright. In early 1997 he moved out of the main barn and his ex-wife and family 6 moved back. He occupied the single storey northern barn known as Church Farm. He assumed at that stage that his ex-wife and children would remain in the barn and so, following the divorce in late 1997, he transferred the ownership to her. No covenant was applied as permitted development rights on that property had been withdrawn. Mr Flynn said that the removal or modification of the covenants would defeat the original objective behind his purchase of the site. The covenants were there to protect the buildings and setting as well as the original concept behind his scheme. He said that both pairs of applicants had known what they were buying. Some of the alterations to both St Edmund’s Barn and White House Farm demonstrated the applicants’ lack of sympathy for the history, character and setting of the site. He denied that he had consented to the flue installed by Mr and Mrs Pearce. As far as Mr and Mrs Furnell were concerned, he was simply asking that the window in the roadside frontage be altered. He had no objection to the other alterations. He would be happy to compromise with Mr and Mrs Furnell and Mr and Mrs Pearce, but they were not interested in doing so.

[18]The first issue that arises is whether Mr Flynn has in each case consented to the discharge of the alterations restriction on the one hand and the satellite dish restriction on the other within ground (b). In the case of Mr and Mr Furnell, the applicants’ contention is that Mr Flynn has impliedly acquiesced in the breach of the restrictions by doing nothing to enforce them and, in the case of the conservatory, by not objecting to the planning application. This is a contention that could apply only to the alterations restriction, since Mr Flynn was not aware of the satellite dish that Mr and Mrs Furnell had installed until Mr Furnell revealed in the course of the hearing that one had been installed. Mr Flynn made clear that he objected only to the roadside window, so that it is correct, in my view, to say that he has acquiesced in the breaches of covenant relating to the other alterations for which Mr and Mrs Furnell failed to seek consent. It cannot be said, however, in my judgment, that the acquiescence in these breaches amounts to consent for the discharge of the restriction in its entirety. Clearly it does not. Mr Flynn continues to object to the window and wishes to retain the restriction so that he can prevent future alterations that he may find unacceptable. The most that can be said is that the acquiescence supports the discharge of the restriction in respect of those alterations that have already been carried out and to which Mr Flynn does not object.

[19]As far as Mr and Mrs Pearce are concerned, the case on ground (b) is put in terms of express consent. Both Mr and Mrs Pearce said in evidence that Mr Flynn had assured them, before they contracted to buy the property, that the covenants would not be imposed. They said that he had consented expressly to the installation of a flue. Mr Pearce said that Mr Flynn had consented to any verandah or pergola that they might wish to install and had been present without objecting when the location of the satellite dish was being discussed. I am not satisfied that Mr Flynn did in fact give any such assurance about the covenants or any consent to the flue or the verandah and pergola. No claim that such assurance and consents had been given was included in Mr and Mrs Pearce’s application to this Tribunal, which they signed on 19 April 2001. Nor in the correspondence that they produced, in which their solicitors, Robert Stevens & Co, responded to threats by Mr Flynn and his solicitors, J A Hughes Walters and Hopkins, to take proceedings in respect of the alterations, is any such claim made. Those letters were written between 26 March 1997 and 30 June 1999, and one would have expected that, if there had been the assurances and consent that Mr and Mrs Pearce claim, they would have told their solicitors about it and it would have been asserted in 7 the correspondence. It would have been the obvious and complete response to Mr Flynn’s complaints.

[20]I have no doubt that in the time that has elapsed since then Mr and Mrs Pearce have become convinced that Mr Flynn gave the assurance and the consents about which they spoke in evidence. I think it probable that the proposed covenants and the possibility of installing a flue for the woodburner were mentioned in discussions between Mr and Mrs Pearce and Mr Flynn, but I am not satisfied that any such specific assurance or consent was given. In any event, whether or not consent was given to particular alterations has no bearing, it seems to me, on the question whether Mr Flynn has consented to the discharge of the alterations restriction. If consent had been given, this would simply have meant that, in making the alterations, Mr and Mrs Pearce would not have been in breach of the covenant. If I had been satisfied that an assurance had been given that the covenant would not be imposed, it would have been necessary for me to consider whether this amounted to consent to its discharge for the purposes of ground (b). I am not satisfied on this, however. Ground (b) is not made out in relation to Mr and Mrs Pearce’s alterations restriction.

[21]As far as the satellite dish is concerned, I think it probable that Mr Flynn did accept the proposed location for it. It is to be noted that a claim to this effect was made in Robert Stevens & Co’s letter of 17 June 1997 to Mr Flynn. This acceptance, however does not mean that there has been consent to the total discharge of the satellite dish covenant. There has merely been an acceptance of a dish in a particular position, and this would justify discharge of the restriction only in relation to this.

[22]The second question that arises is whether Mr Flynn would be injured if each of the restrictions were to be discharged. The applicants’ contentions are as follows. They point out that the covenants were in each case annexed to the land that was being retained by Mr Flynn after the transfer. The land that now has the benefit of the covenant is, in Mr and Mrs Furnell’s case, the units now known as St Edmund’s Barn (now owned by Mr and Mrs Pearce), Church Farm Barn (now owned by Mr and Mrs Upson) and Church Farm (the land with the holiday accommodation retained by Mr Flynn). In the case of Mr and Mrs Pearce the land with the benefit of the covenants is Church Farm Barn and Church Farm. Mr and Mrs Pearce and Mr and Mrs Upson have not objected to the discharge of the restrictions that apply to White House Farm, and both couples have stated that nothing that has been done to White House Farm has interfered with the enjoyment of their property or injured them. Mr and Mrs Upson have made the same statement in relation to St Edmund’s Barn. Thus, say the applicants, it is only the effect on the land retained by Mr Flynn that needs to be considered; and, in considering whether he would be injured, it is material to note that Mr and Mrs Pearce and Mr and Mrs Upson say that they have not been adversely affected by works carried out in breach of the restrictions. Mr Flynn did not see fit to impose similar covenants on Church House Barn, the property that immediately abuts his retained land. Since Mr Flynn’s holiday accommodation is separated from St Edmund’s Barn by Church Farm Barn, and since White House Farm lies beyond St Edmund’s Barn, very little of the burdened land can be seen from Mr Flynn’s land. Attention is drawn to Mr Flynn’s riposte to Mr and Mrs Furnell’s objection to his planning application. Planning permission would be required for any alteration that might affect Mr Flynn’s land. As far as the alternations that 8 have been carried out are concerned, it is said that none of them is visible from Mr Flynn’s land and he has not been harmed by them. The same is said to go for the satellite dishes.

[23]I cannot accept that Mr Flynn would not be injured if the restrictions were totally discharged. The power to prevent alterations to the elevations of White House Farm and St Edmund’s Barn is, in my view, of some benefit to him. The same goes for the restrictions on satellite dishes. Planning permission would not be required for alterations carried out within the Town and Country Planning (General Permitted Development) Order 1995, and the need for planning permission for other alterations provides no guarantee that works to which he might reasonably object would be prevented. Parts of St Edmund’s Barn are visible from his property, and the elevation of both burdened properties are to be seen, as parts of the complex which include Mr Flynn’s land, from the road immediately outside and from vantage points on the highway further away. I accept Mr Flynn’s evidence as to the reasons for his imposing the covenants. The power to prevent alterations that he might reasonably think were unsightly and to prevent the erection of satellite dishes in prominent places is, it seems to me, undoubtedly of benefit to him, so that it cannot be said that he would not be injured if the restrictions were discharged.

[24]As far as the works that have already been carried out are concerned, it is material to consider what rights, if any, Mr Flynn has to require them to be undone. In my judgment, if Mr Flynn were now to commence proceedings against Mr and Mrs Pearce, no injunction would be granted to require the removal of the alterations that they have carried out. As far as the satellite dish is concerned, I have found that Mr Flynn consented to its location. As regards the alterations, the decisive consideration is that an injunction is a discretionary remedy. A court would, it seems to me, inevitably conclude, in the light of two factors, that an injunction ought not to be granted. The first factor is that the works (flue, verandah and pergola, re-tiling, burglar alarm) were carried out over 5 years ago and, although Mr Flynn has continued to say that he dislikes them and does not consent to them, he has not taken proceedings to secure their removal. Solicitors on his behalf, J A Hughes Walters & Hopkins, threatened proceedings in a letter as long ago as 12 November 1996. Mr Flynn did in fact commence proceedings in January 2000 in the county court, but that was in order to recover the costs that he said he had incurred in seeking Mr and Mrs Pearce’s compliance with the covenant. The claim was, however, struck out by a District Judge on 24 May 2000 because (I was told) Mr Flynn had failed to deliver particulars of his claim.

[25]The second factor that would bear upon the exercise of the court’s discretion is Mr Flynn’s conduct in stationing at the front of his own land a caravan and a septic tank. The septic tank was a bulb-shaped plastic object, about 10 feet high, and eyes, nose and a mouth were painted on it in white paint. A photograph showing the septic tank and the caravan was produced. Mr Flynn said that his neighbours obviously found the tank and the caravan offensive. I am in no doubt that they were intended to find them offensive. When I viewed the site on 23 May 2002, the septic tank had been removed, but the caravan remained. The effect of the tank and the caravan was to interfere with the appearance of the group of buildings, including Mr Flynn’s own building, and it is clear to me that they did so to a much greater extent than did the flue on Mr and Mrs Pearce’s house, or indeed any of the alterations carried out by them. 9

[26]Taking these two factors into account, a court would undoubtedly, in my view, refuse injunctive relief. Furthermore any award of damages would, in my judgment, necessarily be nominal only, since in the light of the matters I have referred to, I do not think that Mr Flynn has been harmed. I have no evidence to suggest that the value of his property has been diminished by the alterations of which he complains, and I do not consider that it has been. In view of this I do not think that Mr Flynn would be injured if the covenant were discharged in relation to the alterations that have been carried out. To lose the possibility of an award of nominal damages does not, in my judgment, amount to injury within the meaning of section 84(1)(c).

[27]As far as Mr and Mrs Furnell are concerned, the only alteration to which Mr Flynn objects is the insertion of a window in the roadside elevation, and he made clear that all he wants is for the existing concrete lintel to be replaced by a brick arch. In my judgment, Mr Flynn would not be able to obtain injunctive relief in relation to this window because of the delay in applying for relief – the window having been installed early in Mr and Mrs Furnell’s ownership, which began in January 1994 – and because of Mr Flynn’s conduct in placing the septic tank and caravan so as to have an adverse effect on the group of buildings. It follows that Mr Flynn would suffer no injury if the alterations restriction were to be discharged in relation to those alterations that have already been carried out. Since Mr Flynn had not even noticed that Mr and Mrs Furnell had installed a satellite dish, I do not think that he would be injured if the satellite dish restriction were discharged in relation to that particular installation.

[28]Accordingly I find that, in relation to both Mr and Mrs Pearce and Mr and Mrs Furnell, ground (c) is made out so as to justify the discharge of the restrictions in respect of the alterations that have already been carried out and the placing of the satellite dishes in their present positions.

[29]The third question that arises, since I have rejected the applicants’ contention that the restrictions should be discharged in their entirety, is whether the restrictions should be modified in the terms for which they contend. The modification sought to the alterations restriction would remove the requirement for Mr Flynn’s consent to any alterations to the elevation or ground plan of the property. I do not think that it can be said that Mr Flynn would not be injured by such an alteration. The requirement that his consent should be obtained before any such alteration is carried out clearly gives him a greater protection against alterations that he reasonably objects to than the suggested substitute restriction. As far as the satellite restriction is concerned, the proposed substitute restriction would mean that Mr Flynn would have to prove that a dish was “obviously visible” from his land before he could enforce its removal. This would clearly be more onerous than simply having to prove, as he does under the present covenant, that a satellite dish has been installed. Moreover, he would not be able to secure the removal of a satellite dish that was obviously visible from the road outside the properties. In my view, therefore, it cannot be said that that Mr Flynn would not be injured if the restrictions were modified in the ways proposed, and accordingly ground (c) would not justify the modifications.

[30]The fourth and final question that arises is that of discretion. Having concluded that ground (c) is made out so as to justify the discharge of the covenants in relation to the works 10 that have already been carried out, I must decide whether there are any reasons that would make it inappropriate for me to order such a partial discharge. The applicants are all original covenantees. They themselves expressly entered into the covenants when they bought their properties. The fact that an applicant is an original covenantee will sometimes be a strong argument against granting his application. In the present cases, however, I have found that the covenants should be partially discharged because, in my judgment, a court would not grant an injunction or other than nominal damages in respect of the breaches that have already occurred. It seems to me that the certainty that would be produced by the partial discharge that I propose would benefit all parties and bring to an end the particular disputes that have continued for so long. That, in my view, is the decisive consideration on the exercise of discretion.

[31]In the case of Mr and Mrs Furnell restriction (iii) will be discharged in relation to alterations carried out before 15 May 2002 and restriction (v) will be discharged in relation to any satellite dish erected before 15 May 2002. In the case of Mr and Mrs Pearce restriction 3 will be discharged in relation to alterations carried out before 15 May 2002 and restriction 5 will be discharged in relation to any satellite dish erected before 15 May 2002.

[32]A letter on the question of costs accompanies this decision. The decision will not take effect until the question of costs is determined. Dated 12 July 2002 George Bartlett QC, President 11 Addendum on costs

[33]Written submissions on costs have been received from Mr Furnell and Mr Flynn. Mr Furnell asks that the applicants should be awarded their costs. Mr Flynn submits a claim for costs but says that he is prepared to bear his own costs if the applicants bear theirs.

[34]The outcome of the section 84 applications is that the applicants have succeeded to the extent of achieving a partial discharge of the restrictions, but have failed to secure either their total discharge or the modifications that were sought in the alternative. In my judgment the proper order, which would reflect the degree of success and the degree of failure on either side, is that there should be no order as to costs. Dated 16 August 2002 George Bartlett QC, President 12