GRAHAM ROBERT MARSHALL SANDRA MARY MARSHALL LP/32/2001

UPPER TRIBUNAL

LANDS CHAMBER

LP/32/2001

Case No LP/32/2001

Between

GRAHAM ROBERT MARSHALL SANDRA MARY MARSHALLApplicant

Before

N J Rose FRICS

Venue Leeds Combined Court Centre

Date 11 September 2003

Hearing 17 July 2003

Property: Garden of 2 The Courtway, Low Ackworth, West Yorkshire, WF7 7NT

Catchwords: RESTRICTIVE COVENANT – restriction to one dwellinghouse per plot – application to amend this limitation to permit erection of dormer bungalow in rear garden – whether disadvantage to objectors – application refused – Law of Property Act 1925, s84(1)(aa).

[1]This is an application by Graham Robert Marshall and Mrs Sandra Mary Marshall (“the applicants”) under section 84 of the Law of Property Act 1925 (“the 1925 Act”), seeking the modification of a restrictive covenant. The covenant affects freehold land, consisting of part of the rear garden of a dwellinghouse known as 2 The Courtway, Low Ackworth, West Yorkshire, WF7 7NT, upon which the applicants wish to erect a dormer bungalow.

[2]2 The Courtway is part of a development of broadly similar detached houses and bungalows, built in the early 1970s. The Courtway itself is a cul-de-sac, which runs north from Station Road and which in turn leads to three further culs-de-sac; York Place to the east and Beechwood Dale and Villa Close to the west. Access to the proposed bungalow will be from The Orchards, another cul-de-sac development leading off Station Road.

[3]The relevant restriction was imposed by a conveyance dated 5 May 1972 which contained, among others, the following covenant:

“No building other than one dwellinghouse or bungalow and garage or as an outbuilding for a private dwellinghouse or bungalow shall be erected on the said plot of land Nor shall any alteration or addition whether of a permanent or portable nature be made in the said dwellinghouse or bungalow or other buildings to be erected on the said plot of land without consent in writing of the Company or its Architect.”

[4]A similar covenant was imposed on the original sale of all other plots on the estate.

[5]Planning permission for the erection of a detached dormer bungalow on land at the rear of 2 The Courtway was granted, subject to certain conditions, on 3 September 2001.

[6]The original application to this Tribunal sought the discharge of the covenant or its modification “so as to permit the erection of a further dwellinghouse.”

[7]A number of objections were submitted by parties who it is agreed are entitled to the benefit of the restriction. Some of those objections were withdrawn on condition that the applicants undertook to amend the application, which they did on 8 July 2003. The application to discharge the covenant was withdrawn. The amended application sought “(i) That the restrictive covenant on 2 The Courtway be relaxed only on that part of the land of 2 The Courtway shaded purple on the copy Charge Certificate (not the whole of the property 2 The Courtway, Low Ackworth), and which has received planning approval, so as to allow the building on the area shaded purple to go ahead. The restrictive covenant shall remain on that part of 2 The Courtway outside the area shaded purple at all times. 2 (ii) Following completion of the building/development on the land shaded purple, the restrictive covenant shall be completely re-imposed on the new dwelling on the land shaded purple, and for the avoidance of doubt on the remainder of 2 The Courtway if the same be necessary. (iii) The dormer bungalow will be built on the land shaded purple in accordance with the plans approved by Wakefield Metropolitan District Council Planning Department under Application No.01/99/32400/H dated 3 September 2001. (iv) The proposed dwelling on the land shaded purple will be part of the estate known as ‘The Orchards’. (v) The proposed dwelling on the land shaded purple will at all times be accessed from The Orchards and its services will come from that estate. (vi) The new dormer bungalow proposed on the land shaded purple will be of conventional brick and mortar construction, although it will be built in the style of the houses on The Orchards. (vii) The boundary which will define the eastern boundary of 2 The Courtway and the western boundary of the proposed new development on the purple land will be defined by a straight line joining the eastern boundary of No 4 The Courtway to the boundary between No 3 and No 5 York Place, where these boundaries meet 2 The Courtway.”

[8]The effect of paragraph (vii) of the amended application, if successful, would be to reduce the distance from the rear (western) elevation of the proposed dwelling to the rear (eastern) site boundary of 2 The Courtway from 15 m as shown on the plan approved by the local planning authority to 7 m.

[9]Objections remain outstanding from the owners of six houses on the Courtway estate. They were made by Mrs S Kearsley of 2 York Place; Mr J K Lawson and Mrs P Lawson of 3 York Place; Mr B R Hill and Mrs G M Hill of 4 York Place; Mrs K B Scholey of 5 York Place; Mrs J M Reast of 6 The Courtway and Mr D E Burt of 1 Villa Close.

[10]At the hearing Mr John Holroyd of counsel appeared on behalf of the applicants. He called Mr Marshall as a witness of fact and, as expert witness, Mr B T Collinson FRICS, a partner in Messrs Adair Paxton of Leeds. Mr Burt appeared on behalf of himself and the remaining objectors and gave evidence. He also called the following objectors to give factual evidence; Mrs Reast, Mrs Hill, Mrs Lawson and Mrs Scholey. On the morning following the hearing, accompanied by representatives of the parties, I inspected the application site together with the objectors’ houses and the neighbourhood generally.

[11]The original application to the Tribunal relied upon grounds (a) and (aa) of section 84(1) of the 1925 Act, but ground (a) was not pursued before me.

[12]Under ground (aa) the issue is whether the Tribunal is satisfied: 3 “(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified impede such user;” “(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest; and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.” “(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharge or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.”

[13]The objectors’ case was directed primarily to subsection 1A(a). They considered that the proposed bungalow would interfere with the existing views from their own houses (apart from that of Mr Burt) and would adversely affect the privacy of Mr and Mrs Lawson and Mrs Scholey. They were also concerned that, if the covenant were modified in this case, it could create a precedent leading to further houses being built on garden land on the estate.

[14]In the light of the evidence and my inspection I consider that the objectors are justified in suggesting that five of their houses would have their amenities interfered with to some extent if the proposed bungalow were built. The interference to 2 and 4 York Place and 6 The Courtway, however, would be marginal compared with that to 3 and 5 York Place, which are the only two of the objectors’ properties which have boundaries contiguous to the proposed development. Mr Lawson, who lives at 3 York Place with his wife, has been ill for many years. He is on dialysis and one of his main means of relaxation is to use the heated swimming pool in his rear garden. The first floor of the proposed building would overlook that pool and would also look into the living room, dining room and kitchen of his house. Mrs Scholey spends most of the day in the living room of 5 York Place. From there she would be able to see clearly the upper part of the new house, which at its nearest point would only be some 20 metres from her living room.

[15]It is agreed that houses on the Courtyard estate are worth between £250,000 and £300,000. Mr Collinson considered that only one of the objectors’ houses would suffer any diminution in value as a result of the construction of the proposed property, namely 5 York 4 Place, whose value would be reduced by only £4,000. In the absence of any other expert valuation evidence I accept Mr Collinson’s opinion.

[16]The “benefits” secured by a restrictive covenant, however, need not be purely financial (see Re Stevens’Application

(1963) 14 P & CR 59

). I bear in mind that Mr Lawson’s pool is visible at present from the rear of 2 The Courtway and also to a limited extent from 2A. I also bear in mind that there have been various unauthorised breaches of restrictive covenants affecting other properties on the Courtway estate, although no additional dwellinghouses or bungalows have been so erected. I am, nevertheless, satisfied that the proposed bungalow would injuriously affect the owners of 3 and 5 York Place in the enjoyment of their homes to an extent greater than would be reflected in the bids that would be made for those properties by prospective purchasers fresh to the scene.

[17]I also consider that there is some justification for the objectors’ concern that the relaxation of the covenant in this instance might constitute the thin end of the wedge. Mr Burt referred to five areas of garden land or private open space on the estate which he suggested might form the subject of future planning applications for the erection of additional houses. If some or all of such applications were successful the proposed modification, if permitted, could serve as a useful precedent if the owner or owners then made an application or applications under the 1925 Act. No expert evidence was given as to the prospect that planning consents would be forthcoming in respect of those sites. It is agreed that the chances of developing some of them may be reduced by the need to comply with the provisions of tree preservation orders and possibly building lines. Mrs Hill said, however, and I accept, that some of the trees in question are approaching the end of their lives, being some 200 years old. Moreover, as Mr Marshall pointed out, recent Government guidance to local planning authorities has recommended increasing the densities of residential development schemes. In all the circumstances, I think the objectors are entitled to be concerned that the modification of the restrictive covenant on 2 The Courtway could well encourage owners of other garden land on the estate to seek planning consent and, if successful, apply for modification of the restrictions affecting their properties.

[18]Mr Holroyd pointed out that the site of the proposed development on 2 The Courtway could be distinguished from the other sites to which Mr Burt referred, on the ground that it would not result in additional vehicular traffic on the estate, since access would be from The Orchards only. That is a point which would no doubt be taken by those objecting to any further attempt to modify a restrictive covenant on the estate. It does not necessarily follow, however, that that distinction would be decisive. In any event the fact, as I find, that it would be more likely that applications would be made for permission for further development projects in breach of the existing restrictions means that there would be a greater risk than previously that such developments might go ahead, adversely affecting the overall amenities of the estate.

[19]This is a borderline case, but in my judgment the combination of their ability to avoid the adverse amenity impacts of the proposed bungalow on 3 and 5 York Place, and to avoid the risk that modification of the covenant in this case could lead to an intensification of development on the estate, is a practical benefit of the restriction which is of substantial 5 advantage to the objectors and other residents on The Courtway estate entitled to the benefit of it.

[20]The requirements of ground (aa) are therefore not satisfied and I do not have a discretion to modify the restrictive covenant. Had ground (aa) been made out I would have needed to consider whether the absence of an unrestricted right of way over The Orchards to the proposed development, and of planning permission for the proposed building within the reduced boundaries now proposed, meant that my discretion should not be exercised. This question does not in the event arise. The application is therefore dismissed.

[21]It only remains for me to thank both advocates and all the witnesses for the fair way in which they presented their respective cases and gave evidence.

[22]A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided. Dated: 5 August 2003 N J Rose ADDENDUM

[23]It has been agreed that the applicants will pay the objectors’ costs totalling £1043.50 and I so order. Dated: 11 September 2003 N J Rose 6