GEOFFREY CHARLES HARROLD MARY CATHERINE HARROLD LP/45/2002

UPPER TRIBUNAL
LANDS CHAMBER
LP/45/2002Case No LP/45/2002
Between
GEOFFREY CHARLES HARROLD MARY CATHERINE HARROLDApplicant
Before
N J Rose FRICSVenue Leeds Civil Hearing CentreDate 3 December 2003Hearing 15 October 2003Property: 15 Hough Top, Bramley, Leeds, West Yorkshire, LS13 4QWCatchwords: RESTRICTIVE COVENANT – restriction to single dwellinghouse and against use causing nuisance, etc to owner of adjoining properties – extent of neighbourhood - whether covenant obsolete – application refused – Law of Property Act 1925, s84(1)(a)
[1]This is an application by Mr Geoffrey Charles Harrold and Mrs Mary Catherine Harrold (“the applicants”) under section 84 of the Law of Property Act 1925 (“the 1925 Act”), seeking the discharge of a restrictive covenant. The covenant affects freehold land of some 0.3 acres, upon which is a detached bungalow, erected early in the 20th century. The land is known as 15 Hough Top, Bramley, Leeds, West Yorkshire, LS13 4QW (“the subject property”). The site also contains a part two-storey and part single-storey double garage, which the applicants wish to enlarge and convert to form a dwellinghouse.[2]The restriction was imposed by a conveyance dated 13 September 1976 which contained, among others, the following covenant:
“Not to use the property hereby conveyed for any purpose other than that of a single private dwellinghouse and not to do or permit thereon or upon any part thereof or in the user thereof anything which may be or grow to be a nuisance annoyance or obstruction to the Vendor or the said Margaret Elvidge the owner or occupier for the time being of the said adjoining or adjacent properties now respectively belonging to them.”
[3]Planning permission for the proposed extension to the garage and its change of use to a three bedroomed dwellinghouse was granted on 4 September 2002. The permitted extension would be located to the rear of the existing building; its plan dimensions would be 3.5m x 4.75m and the site of the new house would be separated from the existing dwelling at 15 Hough Top by a 1.8m high close boarded timber fence. The applicants now seek the discharge of the relevant restriction, relying upon ground (a) of section 84 of the 1925 Act.[4]One objection to the application has been submitted. It is by Mrs Margaret Veitch (formerly Elvidge), who was referred to in the restriction as being, and still is, the owner and occupier of the property adjoining the subject property. It is agreed that Mrs Veitch is entitled to the benefit of the restriction.[5]At the hearing Mr Harrold appeared, with leave of the Tribunal, on behalf of both applicants and Mrs Veitch appeared in person. On the morning following the hearing, accompanied by representatives of the parties, I inspected the application site and the surrounding area.[6]In the light of the evidence and my inspection I find the following facts. The subject property forms part of a site of approximately 4.1 acres, which has its northern frontage to Hough Top and which belonged for many years to Mrs Veitch’s father, Mr Harold Leslie Reynolds. Mrs Veitch lived with her parents in a detached bungalow on the subject property from 1945 until 1962, when she moved into another bungalow which had recently been constructed on her father’s land and which became known as 11A Hough Top. On 1 July 1966 Mr Reynolds conveyed the site of 11A, extending to approximately 0.46 acres and with a frontage to Hough Top immediately to the east of the subject property, for a nominal consideration. The conveyance included the following covenant: 2 “The Purchaser for the benefit of the adjoining property of the Vendor situated to the westerly and southerly sides of the property hereby covenants with the Vendor that she the purchaser and her successors in title will not any time hereafter permit the property hereby conveyed to be used for any purpose other than that of a private dwellinghouse and will not permit thereon or upon any part thereof anything which may be or grow to be a nuisance annoyance or obstruction to the Vendor, the owners and occupiers for the time being of the said adjoining property of the Vendor.”[7]On 9 October 1967 Mr Reynolds transferred the undeveloped land lying to the south of the subject property and 11A Hough Top, bounded to the south by Pudsey Road and with an area of some 3.3 acres, to a trust for the benefit of his grandchildren. I shall in future refer to that land as “the trust land”.[8]Mr Reynolds died suddenly in September 1974. His widow continued to live at the subject property until 1976. Thereafter it was placed on the market by the personal representative of Mr Reynolds’s estate and then conveyed to the applicants on 13 September 1976. In order to facilitate that sale, the personal representative had on 3 August 1976 transferred to Mrs Elvidge (as Mrs Veitch then was) a small piece of land lying between 11A and the subject property. In consideration of that conveyance, Mrs Elvidge granted the owners and occupiers of the subject property the right to use the drain and manhole leading to a septic tank, all of which were located within the site of 11A. The vendor in turn undertook to keep the drain and manhole in repair.[9]By a further supplementary conveyance dated 4 February 1985 the personal representative transferred to Mrs Veitch two small parcels of land abutting the subject property, which had apparently been omitted in error from the original conveyance.[10]On 19 April 1999 an inspector appointed by the Secretary of State for the Environment, Transport and the Regions dismissed an appeal by Britannia Developments Limited (“Britannia”), the prospective purchaser of the trust land, against the failure of the local planning authority to determine an application for the development of that land by the construction of 24 dwellings. Later in the same year another development company, Barwick Investments (Leeds) Limited (“Barwick”) submitted an application for 11 detached dwellings on the lower, southern section of the trust land. Barwick purchased the whole of the trust land on 17 August 2001, but withdrew their planning application on or before April 2002.[11]The applicants rely on paragraph (a) of section 84(1) of the 1925 Act, so that the issue is whether “by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete.”[12]Mr Harrold said that the character of the neighbourhood had changed substantially since 1976. At that time the subject property and the surrounding area, extending southwards 3 to Pudsey Road and beyond, were shown on the Pudsey local plan as lying within the green belt. In 1982, however, a draft local plan was produced, which indicated that the land between Hough Top and Pudsey Road was proposed for housing, subject to satisfactory access, drainage and landscaping. Mr Harrold showed, by reference to two plans, how large areas of land between Hough Top and Pudsey Road, which had been within the green belt before the local plan was changed, were now used or proposed to be used for housing. Moreover, since 1982, the school lying on the opposite side of Hough Top to the subject property had closed and was now being used for office purposes. Finally, the trust land was sold in 2001 for housing development. In the light of these developments, Mr Harrold argued that the creation of one additional house fronting Hough Top would have no significant impact on the amenities enjoyed by its neighbours.[13]He submitted that, apart from Mrs Veitch, the only other party entitled to the benefit of the restriction was Barwick, and they had not objected to the application. Indeed, he suggested, Barwick had more cause than Mrs Veitch to be concerned by the applicants’ proposals. This was because they alone had the benefit of the restriction to a single dwellinghouse. Mrs Veitch was only entitled to object to anything which might cause her a nuisance, annoyance or obstruction, since it was only in relation to those matters that she had been mentioned in the covenant.[14]A further reason given by Mr Harrold for considering the covenant to be obsolete was that it formed part of a system of covenants, which he suggested had been broken. He said that similar covenants had originally been imposed on 11A and the northern section of the trust land, but office copies received from the Land Registry showed that both sites were now free from any such restriction. In the course of the hearing, Mr Harrold accepted that the restriction on 11A was in fact still effective.[15]Mrs Veitch did not consider that the character of the neighbourhood had changed nearly as much as Mr Harrold had suggested. Mr Harrold’s plan showing the extent of the undeveloped sites in the area before the local plan was changed was misleading, since it included brownfield sites and private gardens and omitted some buildings which had been constructed before 1976. The change of use from school to council offices had not resulted in a change in the external appearance of those buildings; the extensive school playing fields were protected by a green space designation and the only visual changes to the street scene to the north side of Hough Top consisted of the maturing trees around the perimeter of the tennis courts, which were overlooked by both the subject property and 11A.[16]Mrs Veitch also submitted that there had been no significant change in the nature of the housing fronting the south side of Hough Top, apart from a dozen semi-detached houses which had been erected about six years ago at the western extremity of the road, and which were outside the immediate neighbourhood. As to the land to the south, because it sloped so steeply, the principal view from 11A was rural in nature, towards the strategic area of green belt between Leeds and Bradford. A residential development scheme, known as Ivy Chase, had taken place on land immediately to the south west, but its impact on 11A was limited by the steep fall in levels, and much of the development that had taken place further along Hough Top to the east and west was out of sight when viewed from 11A. The future of the trust land was uncertain, but any development that might eventually be permitted on it would 4 be at a much lower density than either Ivy Chase, or the Britannia development proposals that had been rejected on appeal.[17]Mrs Veitch considered that there was no justification for Mr Harrold’s suggestion that the restriction to one private dwellinghouse had not been imposed for the benefit of her property. She also denied that the trust land had ever been subject to a restriction similar to that imposed on 11A and the subject property. Her main concern was with her immediate living environment. The restriction had been imposed with a view to protecting that environment. It continued to perform that function and was therefore not obsolete.[18]Before considering whether the restriction in question is obsolete, I deal with two preliminary matters, the first of which is the extent of the restriction that is intended to benefit Mrs Veitch, the owner of 11A. Mr Harrold submitted that, since the covenant only referred to her by name in relation to the prohibition on anything causing a nuisance, annoyance or obstruction, the restriction to a single private dwellinghouse was intended to benefit only the vendor, the late Mr Reynolds’s personal representative. I am unable to accept that submission. If one assumes in the applicants’ favour that the beneficiary of each section of a covenant must be specifically named if he or she is to be able to enforce it, then the restriction to one dwellinghouse is of no effect whatever. I do not think that can be right; in my view it is quite clear from its wording that the covenant as whole was intended to protect the position of both the vendor and Mrs Veitch.[19]The second matter relates to the northern section of the trust land. Mr Harrold produced a copy of a set of tender documents relating to that land, which had been prepared in December 1997 by Messrs Adair Davy, chartered surveyors of Leeds. They indicated that the site was subject to a restriction in effectively identical terms to that with which the present application is concerned. The particulars stated that the solicitors acting for the trustees in the proposed sale were Messrs Eversheds. Mrs Veitch produced a copy of a letter written by Eversheds to her solicitors on 3 July 1998, stating in terms that investigations into the title would not have revealed restrictive covenants over the northern part of the site. That land was also free of any such covenants when it was eventually sold to Barwick. It is clear that the tender particulars contained a number of inaccuracies, and in my judgment the reference to a non-existent restrictive covenant was one of them. It follows that the covenant restricting the use of the subject land did not form part of a scheme of covenants which included any part of the trust land. Consequently, no scheme was broken when that land was sold free of restriction. As I have said, Mr Harrold eventually accepted that a similar restriction was still in force in relation to 11A. There is therefore nothing to support his contention that there was a scheme, and that it has been broken.[20]I now turn to the substance of the application, namely whether the restriction is obsolete because of changes in the character of the neighbourhood. For this purpose, Mr Harrold’s case was based on the assumption that the relevant neighbourhood comprises all the land between Hough Top and Pudsey Road, together with the former school buildings to the north of Hough Top. Mrs Veitch, on the other hand, approached the matter on the basis of the immediate environment only, suggesting that consideration should focus on 11A and the subject property. 5[21]In my view, Mr Harrold’s opinion as to the extent of the relevant neighbourhood is correct and I shall consider each section of that neighbourhood in turn. When the restriction was imposed in 1976, the housing fronting the south side of Hough Top was, with limited exceptions – notably Nos.33 and 35 – low density development. Since that time, the western end of the road has been developed at a significantly higher density. Despite that development, and the erection of a limited number of additional houses, the density in Hough Top, considered overall, remains relatively low.[22]The area between Hough Top and Pudsey Road has changed more significantly, mainly in the form of high density residential development to the south-west of the subject property. The notation on the development plan of the trust land to the south has changed from green belt to residential. It is, however, far from clear whether any of that land is physically capable of residential development. The inspector’s decision on Britannia’s appeal in 1999 indicated that insufficient excavation work had been undertaken to establish the extent to which development was physically possible. Although more than two years have passed since Barwick purchased the land they withdrew their planning application to develop the southern part of the site in April 2002 and to date have not submitted a revised application. Mr Harrold suggested that there were major structural problems inhibiting development of the trust land and he may well be right. In any event, if and when those problems are overcome, it is in my view likely that any permitted development will be restricted to the southern section of the site, close to Pudsey Road.[23]The third area forming the neighbourhood comprises the former school and its associated tennis courts. Despite the change of use of the school buildings to offices, the external appearance of the site has remained unchanged, apart from an increase in vegetation masking it from the houses on the other side of Hough Top.[24]I now consider the effect of these changes on the relevant restriction. When it was imposed, 11A formed part of a residential street which was largely developed at a low density and the density remains relatively low. Moreover, because the land to the south falls steeply away, such residential development as has taken place between Hough Top and Pudsey Road (and which might in the future take place on part of the trust land) has had and will have a very limited impact on the view from the rear of 11A, which is primarily of an extensive area of countryside. As to the views to the north, these have remained largely unchanged, although the level of screening by way of vegetation has increased.[25]A restrictive covenant is not obsolete if its object is still capable of fulfilment, and the covenant still affords a real protection to those who are entitled to enforce it (Truman, Hanbury, Buxton and Co Ltd’s Application [1955] 3 All ER 559). In my opinion, Mrs Veitch was right to suggest that an object of the covenant was to protect the environment of 11A. By restricting the use of the adjacent property to a single dwellinghouse and preventing anything that might cause a nuisance, etc to 11A, it is self evident in my judgment that the covenant still affords a real protection to the owner of 11A; the limited changes which have occurred in the density of residential development in Hough Top, and the views from 11A to north and south, have not materially diminished the effectiveness of that protection. The restriction is therefore not obsolete and the application is dismissed. 6[26]A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided. Dated 27 October 2003 N J Rose FRICS ADDENDUM[27]I have received written submissions on costs from the parties.[28]Mrs Veitch asks for her costs. These were originally quantified at £2,399.40 but, following further consideration, this figure was increased to £2,951.40. The applicants do not object to a costs award against them in principle, but they point to the absence of supporting documentary evidence in some instances. They also question the hourly rate of £25 which Mrs Veitch has charged for her time (it was subsequently increased to £28), on the basis that she is retired and prepared her objection in her own house and in her own time.[29]I am satisfied that Mrs Veitch has done her best accurately to summarise the expenses she has properly incurred and the time she has reasonably spent on dealing with her objection. As a litigant in person who fails to prove financial loss, however, the hourly rate to which she is entitled is limited to £9.25 (Civil Procedure Rules, Rule 48.6(4)). I therefore order that the applicants shall pay Mrs Veitch the sum of £1,600 in respect of her costs. Dated 3 December 2003 N J Rose FRICS 7