HIS HONOUR HAROLD WILSON MRS JILL GINEVER WILSON LP/39/2001

UPPER TRIBUNAL
LANDS CHAMBER
LP/39/2001Case No LP/39/2001
Between
HIS HONOUR HAROLD WILSON MRS JILL GINEVER WILSONApplicant
Before
The PresidentAidan Vine (instructed by Thomas Merrifield, Chartered Surveyors, Auctioneers and Estate Agents of Oxford, under direct professional access) for ApplicantIan Partridge (instructed by Darbys Solicitors of Oxford) for ObjectorVenue Procession House, 110 New Bridge Street, London EC4V 6JLDate 9 August 2005Hearing 9 August 2005Property: Land at Westside, Woodstock Close, Oxford OX2 8DACatchwords: RESTRICTIVE COVENANT – modification – bungalow in grounds of existing bungalow in close development – ground (aa) – compensation of £250 each awarded to owner-occupiers of houses and flats overlooking site
[1]The application in this case relates to land at Woodstock Close, a residential development on the east side of Woodstock Road, Oxford. The total area of the Woodstock Close development I estimate to be about 4 acres. It is roughly square in shape and lies to the rear of the back gardens of the houses in Woodstock Road. As I saw when I viewed the area on 11 August 2005, it consists of a central open area, laid out as gardens, roads and parking areas, round which are flats and houses. The buildings are remarkably diverse in size and design. There are two substantial pre-war blocks of flats, numbers 1 to 20 and 21 to 44 respectively, 4- storeys high and constructed in red-brick with tiled mansard roofs. These are situated on the north and east sides of the close. Between them, in the north-eastern corner, is a third block containing 27 flats. This was constructed in the 1960s and is of a similar height to the pre-war flats, although it contains six storeys. On the south side there are two large bungalows and a 2- storey house (The Croft), all with substantial gardens. Immediately to the west of these, at the point where the roadway from Woodstock Road broadens out into the close, there is a terrace of seven 3-storey town houses and two flats and, at the rear, a small bungalow and garages. This development was permitted in 1967. The application land is on the west side of the close, is about ½ acre in area and contains a bungalow called Westside. The bungalow is on the northern part of the land, and the southern part of the land, on the opposite side of the roadway from the 3-storey terrace, is garden.[2]The application land is burdened, and the rest of the land in Woodstock Close appears to be benefited, by restrictive covenants contained in a conveyance dated 19 August 1955. They include the following: “3. Not to erect more than one private dwellinghouse or bungalow with garage and appropriate outbuildings on the land hereby conveyed …[6]No building erected or to be erected on the said land shall at any time be used for any purpose other than as a private dwellinghouse for the occupation of one family only and no trade manufacture or business of any kind shall at any time be set up or carried on on any part of the land hereby conveyed or any buildings thereon except that the purchaser may receive private patients at the property from time to time.”[3]The originating application, which was made on 8 October 2001, on the applicants’ behalf by Thomas Merrifield, Chartered Surveyors, Auctioneers and Estate Agents, sought the discharge of these restrictions or alternatively their modification, restricting the use of the land to residential purposes. The application was stated to be made on grounds (a), (aa) and (c) of section 84(1) of the Law of Property Act 1925. Publicity notices were not given until 21 April 2004, owing to the ill-health of the applicants. Objections were made by Mr J Cotta of Conifers, one of the two large houses on the south side of the close, Mr and Mrs Atwell of 352A Woodstock Road (which lies to the north of the application land, outside the close), Woodstock Close Leaseholders Association, Woodstock Estates Ltd (the freeholder of the greater part of the close), and by the owners of the following town houses and flats: Mrs J Williams of number 75, Mr A Biswas of 76, Mr and Mrs el-Ghonemy of 77, Mrs L Clarke of 79, Mr S Collart of 80, Mrs I Powell of 82, Miss M Hogg of 83 and Dr S B Fox and Dr P A E 2 Scott of 84. It appears from the notice of objection that neither Mr Collart nor Miss Hogg live in their houses. Woodstock Close Leaseholders Association withdrew their objection on 7 February 2005, and both Mr Cotton and Mr and Mrs Atwell withdrew their objections on 5 August 2005.[4]On 30 March 2005, following an application made by Woodstock Estates Ltd, I ordered the applicants to clarify how they wished the restrictions to be modified by setting out the terms of the restrictions as they proposed that they should be modified. On 4 April 2005 Thomas Merrifield wrote to the Registrar setting out the modifications that they were seeking. The proposed modified covenants (with the modifications underlined were as follows: “3. Not to erect more than two private dwellinghouses or bungalows with garages and appropriate outbuildings on the land hereby conveyed …[6]No buildings erected or to be erected on the said land shall at any time be used for any purpose other than as a private dwellinghouse each for the occupation of one family only and no trade manufacture or business of any kind shall at any time be set up or carried on on any part of the land hereby conveyed or any buildings thereon except that the purchaser may receive private patients at the properties from time to time.”[5]It appears that negotiations subsequently took place between Woodstock Estates Ltd’s solicitors and Thomas Merrifield, with the result that on 2 August 2005 Thomas Merrifield wrote to the Registrar stating that the modification set out in their letter of 4 April 2005 should be amended. The amendments consisted of the omission of the word “private” in 3 and the modification of 6 to read:
“6. No building erected on the said land shall at any time be used for any purpose other than as a dwellings and no trade manufacture or business of any kind shall at any time be set up or carried on on any part of the land hereby conveyed or any buildings thereon.”
Also on 2 August 2005 Woodstock Estates Ltd’s solicitors wrote to the Registrar saying that they withdrew their clients’ objection on the basis that the application was proceeding in the amended terms.[6]The applicants had not expressly stated that they were no longer seeking the discharge of the restrictions, although the very short agreed statement of facts and issues, lodged with the Registrar on 24 June 2005, said that the only issue was the modification of the covenants as set out in the letter of 4 April 2005.[7]No expert report and no witness statements had been lodged by the applicants. In a letter to the Tribunal dated 15 February 2005 Thomas Merrifield said that they would be relying on the evidence submitted in support of the application. Apart from the application itself, which was extremely short and inexplicit, there had been submitted as appendices to it a plan of Woodstock Close, the conveyance of 19 August 1955, a planning permission of 10 December 1997 for a 3-bedroom bungalow on the southern part of the application land, and the drawing 3 that had accompanied the application. The planning permission expired in 2002, but it was renewed in virtually identical terms on 11 December 2002.[8]Experts reports, by Hugh Sherbrooke FRICS and Stephen Williams MRICS, had been lodged on behalf of the outstanding objectors, all of whom own houses and flats in the 3-storey terrace opposite the application land. These expressed the opinions that, if the restrictive covenants were discharged and a development for flats in keeping with the existing flats were undertaken, each of the town houses would be reduced in value from £425,000 to £405,000 and each of the flats would be reduced in value from £210,000 to £200,000; while, if the covenants were modified so as to allow the construction of a second bungalow and the permitted bungalow was constructed, there would be no diminution in value. In the light of this the outstanding objectors were prepared to agree that the restrictions should be modified, but only on ground (aa) (and not on ground (a) or ground (c)) and only if the modification were confined to the implementation of the 2002 planning permission or to the construction of a bungalow on the same footprint as that permitted. They also asked for compensation, not because there was any suggestion that their properties would be reduced in value by the modification – the expert reports lodged by them showed that there would not be – but to reflect the feeling of insecurity that the modification would cause, the loss of quiet during building operations and the adverse effect on their outlook. They sought modest sums only.[9]At the outset of the hearing I was told that the applicants agreed to modifications in the terms proposed by the objectors, although they did not agree that any compensation should be paid. At counsel’s request I adjourned so that Woodstock Estates Ltd could be contacted by telephone to seek their agreement to modifications in these terms, and in due course a faxed response, stating their agreement, was received. I was then addressed by counsel on the issue of compensation.[10]I was told that the objectors felt concern that if modification was ordered in the present case similar applications might be made in respect of the curtilages of the houses on the south side of the close. They were also concerned about the disturbance they would suffer during construction works and about the outlook from their properties, since the bungalow would be constructed immediately opposite them on what was now garden land. Their concerns were fully and clearly voiced in the witness statement of Dr Scott. She emphasised that the site of the proposed house is at the entrance to the close and is at present attractive garden land. She said that its development would alter the appearance of the entire close and would signal to owners of other open land in the close that they could expect to be able to develop that land.[11]Mr Vine submitted that in considering the effect of the permitted bungalow regard should be had to a permission granted on the subject land on 20 January 1994 permitting single and two storey extensions to the existing bungalow including two garages and a car port and incorporating an annexe for a care assistant. That permission could, he said, be implemented without breaching the restrictions. It does not seem to me that any weight is to be attached to this, however, since, as Mr Vine accepted, there is nothing to indicate any likelihood of such a planning permission – the actual planning permission expired in 1999 – being implemented. Mr Vine pointed out that not all the objectors’ houses faced directly on to the site of proposed bungalow, and he placed reliance on the fact that there had been no objection from the owner of one of them, number 81. Hoarding would be erected during construction. Under the terms 4 of the planning permission there were restrictions on the materials that could be used and on the means of enclosure, and there were requirements relating to landscaping and the protection of trees. If any compensation were to be awarded, it should be modest.[12]In the light of my view and the other material before me I see no reason why the restrictions should not be modified on ground (aa) as the applicants and objectors have agreed. In assessing whether compensation should be awarded to the objectors to reflect any loss or disadvantage suffered by them in consequence of the modifications, and, if so, how much, I take account, as Mr Vine asks that I should do, of the conditions imposed on the grant of planning permission, and I consider it appropriate in the light of this that the modification should be worded so as to enable the development permitted to be carried out, but not other development. I accept that those objectors who live in their properties would find regrettable the fact that they would be able to see the bungalow from their kitchen and bedroom windows, although I think that the effect in the overall context of the surroundings would be very small. Immediately opposite numbers 81 to 84 there is a bungalow (Marsden), and Westside itself is clearly visible too. I accept that there would be a small amount disturbance during construction. I accept also that the objectors feel concern that modification here would encourage proposals on other land in the close, although in view of the predominance of more intensive development (71 flats in 4- and 6-storey blocks, and the 3-storey terrace of town houses and flats in which the objectors themselves live) it would be surprising if in the future there were not in any event pressure for redevelopment of the large, single-dwelling plots. Any further applications for modification, either on such other land or the application land itself, would fall to be considered on their merits. I think that a very small sum, £250, in respect of each property would adequately reflect each of the resident owners’ loss or disadvantage. I see no need to compensate the two owners who do not live in their properties.[13]The restrictions will be modified on ground (aa) as follows:
“The restrictions are modified so as to permit the erection and use in accordance with Oxford City Council planning permission 02/01985/FUL3 of a second bungalow with garage and parking space.”
[14]The applicants must pay £250 by way of compensation to the following objectors: Mr J Williams, 75 Woodstock Close Mr A Biswas, 76 Woodstock Close Mr and Mrs el-Ghonemy 77 Woodstock Close Mrs L Clarke 79 Woodstock Close Mrs I Powell 81 Woodstock Close Dr S B Fox and Dr P A E Scott 84 Woodstock Close 5[15]The parties are now invited to make submissions on costs, and a letter in relation to this accompanies this decision, which will not become final until the question of costs has been determined. 15 August 2005 George Bartlett QC, President Addendum on costs[16]I have received submissions on costs on behalf of the applicants and on behalf of the objectors who were represented at the hearing. The applicants’ submissions were accompanied by an affidavit sworn by the applicant Mrs Wilson, which I have taken into account. The particular nature of proceedings under section 84 and the approach to costs that follows as a consequence are set out in paragraph 20.4 of the Lands Tribunal Practice Directions. Adopting this approach, the most important considerations in my judgment are that the application sought the discharge of the restriction or its modification so as to permit (unspecified) residential development and not only one bungalow; that the material provided in support of the application was minimal and no expert report was filed; that it was not until 4 April 2005 that the application to modify was stated to be limited to a single additional dwelling, not until 9 June 2005 that the application to discharge was abandoned and not until the hearing itself that they accepted a modification tied to the existing planning permission; that at the hearing the objectors did not oppose modification, and only sought compensation; that 6 of the 8 objectors were awarded compensation but only in very small sums; and that the applicants had made no offer of compensation. In these circumstances the appropriate order in my judgment is that the applicants should pay the objectors’ costs up to 9 June 2005 and that they should pay one-half of the objectors’ costs thereafter, such costs if not agreed to be the subject of detailed assessment by the Registrar. 28 September 2005 George Bartlett QC, President 6