ROBERT GEORGE TURNER MARCIA ELIZABETH DELPHINE TURNER LP/45/2003

UPPER TRIBUNAL

LANDS CHAMBER

LP/45/2003

Case No LP/45/2003

Between

ROBERT GEORGE TURNER MARCIA ELIZABETH DELPHINE TURNERApplicant

Before

N J Rose FRICS

George Newsom (instructed by Stones, solicitors of Exeter) for Applicant

Emily Windsor (instructed by Foot Anstey Sargent, solicitors of Exeter) for Objector

Venue Exeter County Court

Date 5 April 2005

Hearing 5, 6 and 7 January 2005

Property: “Evergreen”, 4 Orchard Close, Ottery St Mary, Devon

Catchwords: RESTRICTIVE COVENANT – modification – restrictions limiting development on plot to one dwellinghouse and preventing building on specified part of site – application to amend to permit house in part of rear garden and to carry out building works on prohibited area – whether injury to objectors – Law of Property Act 1925, s.84(1) (aa) and (c).

[1]This is an application by Mr Robert George Turner and Mrs Marcia Elizabeth Delphine Turner (“the applicants”) under paragraphs (aa) and (c) of section 84 of the Law of Property Act 1925 (“the Act”), seeking the modification of three restrictive covenants affecting freehold land containing a dwellinghouse and garden known as “Evergreen”, 4 Orchard Close, Ottery St Mary, Devon (“the application land”) so as to permit the erection of a bungalow on part of the rear garden.

[2]The restrictions in question were imposed in a conveyance of the application land dated 20 October 1952 between Drake and Gorham Limited and John Newell. The conveyance contained, among others, the following covenants:

“1 The Purchaser shall not at any time use the said property for any other purpose than as a private dwellinghouse. 2 The Purchaser shall not do nor permit to be done upon the property anything which shall be or become a nuisance or annoyance to the owners or occupiers of the adjoining premises nor use the same for any illegal or improper or immoral purpose … 4 No caravan on wheels or building or other structure or erection whatsoever permanent or temporary shall at any time be placed built or erected upon any portion of the land coloured light pink and hatched green on the said plan”

. The land coloured light pink and hatched green was roughly rectangular in shape, adjoining the hammerhead at the northern end of Orchard Close.

[3]On 14 June 2002 outline planning consent was granted on appeal for the construction of one single storey house or bungalow in the garden of the application land subject to reserved matters which have subsequently been approved. The applicants now seek the modification of the covenant on grounds (aa) and (c) of section 84(1) of the Act “so as to permit the following user (“the User”) subject to such variations (if any) as the Tribunal may authorise or require, namely(a) the construction and use of a single storey dwellinghouse, with garage and driveway thereto, pursuant to planning permission granted on 14 June 2002 and subsequent approval of reserved matters;

(b) the construction and use of a replacement garage for the existing house and a driveway thereto;

[4]It is agreed that the objectors represented at the hearing are entitled to the benefit of the restrictions. They are Mrs Margaret Glennie (1 Orchard Close); Mr David Shephard (2 Orchard Close); Mr Anthony John Jones and Mrs June Patricia Avril Jones (3 Orchard 3 Close); Mrs Betty Christine Oxenham (5 Orchard Close); Mr Kevin Edward Stuart Moorhouse and Mrs Josephine Margaret Moorhouse (6 Orchard Close); Mr John Clive Harris and Mrs Sylvia Ellen Harris (7 Orchard Close) and Mr Grahame Goddard White and Mrs Gillian Alice White (The Hollies, Longdogs Lane).

[5]Mr George Newsom of counsel appeared on behalf of the applicants. He called Mr Turner as a witness of fact and one expert witness, Mr C A Huntington-Whiteley FRICS, a partner in Strutt and Parker based in their Exeter office.

[6]Counsel for the objectors, Mrs Emily Windsor called one expert witness, Mr H J Neason FRICS, ACIArb, a partner in Colvilles of Exeter. She also called as factual witnesses Mrs Edna Doreen Shephard (the mother of Mr David Shephard), who has lived at 2 Orchard Close since 1951 and the following objectors: Mrs Glennie, Mr Shephard, Mr and Mrs Jones, Mrs Oxenham, Mr and Mrs Moorhouse, Mr and Mrs Harris and Mr and Mrs White. In addition, Mrs Windsor produced a witness statement from Mr Dennis Lambeth, a former colleague of the original architect of Orchard Close. This was not challenged, once all expressions of opinion had been excised.

[7]On the morning of 7 January 2005 I inspected the application land and the homes of each of the objectors in company with the two expert witnesses.

[8]In the light of the evidence I find the following facts. Orchard Close comprises a small cul-de-sac which runs north off Longdogs Lane. It was developed in the early 1950s by Drake and Gorham Limited – a manufacturing company which had moved its operations to Ottery St Mary from London after the Second World War – in order to house some of its managers and key staff. Orchard Close contains seven detached dwellinghouses, but the development also includes an eighth house, which abuts the eastern boundary of No.7 and is now known as The Hollies, Longdogs Lane. All eight houses are of similar construction, with pitched roofs and rendered elevations. They are arranged on two storeys and each contains three bedrooms, but they have different layouts and sizes and some have been extended and altered since construction. The close is characterised by simple dwellings linked by garages and curtain walls to form a largely unbroken façade. In 1955 the architect of the development, A R Lamb ARIBA AMTPI, was awarded the Housing Medal by the Ministry of Housing and Local Government in recognition of the merit of his design.

[9]In September 2002 several of the current objectors commenced proceedings in the Exeter County Court for an injunction restraining the applicants from breaching certain of the restrictive covenants burdening the application land by constructing a new bungalow and garage upon it. The case was listed before Mr Recorder Turner whose Order, dated 6 January 2003, determined that the claimants were entitled to enforce the covenants by virtue of the existence of a scheme of development of mutually enforceable restrictions imposed in the 1952 conveyances by Drake and Gorham Limited. He also determined that aspects of the applicants’ proposed development would be in breach of the first and fourth restrictive covenants and adjourned consideration of other aspects of the alleged breaches. He then stayed the proceedings to enable the applicants to pursue the current application. 4

[10]The areas of the application land and of the neighbouring property to the west (No.3) are both approximately 0.25 ha. Nos.3 and 4 lie at the head of the cul-de-sac and are significantly larger than the sites belonging to the remaining objectors, which are typically less than 0.1 ha in size. The site for which planning permission for the proposed bungalow was granted on 14 June 2002 has an area of 0.13 ha. It is roughly square in shape and currently forms the rear (northern) half of the back garden of No.4. It slopes downward in a northerly direction and lies within an area which contains a variety of house types and a mixed pattern of development.

[11]Access to the proposed new dwelling would be by a 3 m wide driveway, which would connect with Orchard Close at the same point as the existing driveway and require demolition of the garage to No.4. That garage is of rendered brick or block construction with flat concrete roof set behind a parapet wall and a metal up and over door. It is attached on its west side to the garage to No.3 to form a single structure. The new vehicular access to serve the proposed replacement garage for No.4 would be formed by breaching the boundary wall at the front of the property to a width of 3 m and installing a new driveway with turning area and hardstanding on the east side of the property. The replacement garage would be 6 m x 4.5 m, with a pitched roof of no more than 4 m high. It would therefore fall within the scope of the Town and Country Planning (General Permitted Development Order) 1995 and would not require planning permission.

[12]In summary, the objectors’ case was that the provisions of paragraph (aa) would not be satisfied by the proposed development for the following reasons. Firstly, the proposed user of the application land was not reasonable because of the squashed and restricted nature of the proposed two accesses to the site. Details of the access to the new garage serving the existing house on the site were not provided to the Inspector when he was considering the planning appeal for the proposed bungalow. They were first provided to the local planning authority on 23 December 2003, when a revised site plan was submitted in connection with the approval of the proposed landscaping scheme including boundary planting and fencing. Secondly, by impeding the imposed user, the restrictions secured the following practical benefits to the objectors: the preservation of the view from their homes or gardens or the street scene of the close as a whole; the preservation of privacy and a sense of spaciousness and the prevention or restriction of overlooking and proximity; the prevention of the noise and artificial lighting that would be generated by the presence of a further house; the exclusion of the traffic and possible parking problems that would be generated by the presence of a further house; the right to object to intensification of development in contravention of the restrictions and to preserve the status quo and a sense of spaciousness; the assurance of the integrity of a well-maintained and successful building scheme, the erection of the proposed house materially altering the context in which future applications to the Tribunal would be considered; the prevention of the risk of any damage to the common sewer as the result of the construction of a new property; the prevention of the devaluation of the objectors’ land and the prevention of nuisance and annoyance from building work during the construction period. The objectors’ case was that these practical benefits were of substantial value or advantage to them and that money would not be an adequate compensation for the loss or disadvantage which they would suffer from the modification, although the market values of Nos.3 and 5 would be reduced by approximately £19,125 and £9,200 respectively if the restrictions were modified. 5

[13]As for ground (c), the objectors submitted that the proposed modification would injure the objectors by damaging the status quo, weakening the building scheme generally, spoiling the views and removing part of the privacy of some or all of the objectors, causing more overlooking and proximity, creating more noise and the other “concomitants of living”, increasing traffic levels, creating possible parking problems and placing the common sewer at an increased risk of damage.

[14]The applicants pointed out that the density of development in Ottery St Mary was now noticeably greater than it had been when the restrictions were imposed. The current application was consistent with this increased density, which should be taken into account under section 84(1B). The Planning Inspector has been satisfied that the proposed development would have no material adverse effects on the neighbouring properties. It followed that the proposed modification would not injure the persons entitled to the benefit of the restrictions, so that the provisions of ground (c) were satisfied. Like other miscellaneous alterations which had been made to the houses in Orchard Close, the proposals would not materially affect the frontage character of the close as a 1950s development. Substantial changes to the character of the development could be effected without breaching the existing restrictions (such as changing the surface treatment of any house or demolishing any of them or any parts of them) or even without planning permission (such as painting houses to unsuitable colours or changing windows and doors). The bungalow would be built 20 metres behind and would be below the existing house at No.4 and within its own landscaping scheme. It would be further away from the existing house than the houses in the close were from their neighbours. The proposal would not set a precedent (or present a thin end of the wedge argument) for alterations to the front of any plot in the close. In Mr Huntington-Whiteley’s professional opinion, the values of the objectors’ properties would not be reduced if the application were allowed.

[15]If the Tribunal did not agree that ground (c) was satisfied, the applicants relied on ground (aa). Planning permission existed for the proposed dwelling. There could therefore be no doubt that the proposed use of part of the garden of the application land was a reasonable use which would be impeded by the restrictions unless they were modified.

[16]The restrictions did not secure any practical benefits of value or advantage to those benefiting from them. On traffic, it was reasonable to assume that the new house would generate an average of five movements per day, bearing in mind its urban situation close to shopping and other facilities and its likely future occupation by retired people. The existing seven dwellings in the close were family homes, where an average of seven movements per day would be a fair estimate. Therefore, the likely traffic movements in the close would increase from the current 49 to 54, an increase of 10%. No highway objection had been raised by Devon County Council to the original application for outline planning consent and Orchard Close was an open area with no interference to road visibility and a road junction with Longdogs Lane with clear visibility. Accordingly, there would be no reduction in road safety. There was no reason why the proposed development would result in severe parking difficulties or in access to No.3 being impeded. There was no limit on parking in the close and off-street parking would be provided for the proposed dwelling. Currently, anybody could park across the drive entrance to No.3. There would be no increased risk of such problems as a consequence of the proposed development. 6

[17]On noise, the proposed dwelling was likely to be occupied by retired people who by their nature were quieter than a family with children. There would be no increase in the ambient noise levels that would affect the enjoyment of the other properties in Orchard Close. The limited additional traffic movements would create no significant additional noise at any of the properties in the close other than possibly to No.3. That property has double glazed windows and therefore any additional noise would only be heard for seconds at a time on an average of five occasions per day, if windows at the rear of the house were open or the occupants were in their garden. The noise would be no more than that from a lawn mower.

[18]On light, the proposed dwelling would be in an existing residential area and there was already artificial light from a number of sources. Any internal lights to the proposed dwelling would not affect the amenity of No.3, nor would correctly placed external lights, in respect of which the applicants would accept an appropriate condition. As a result of the approved landscaping plan, which incorporated a close boarded fence 2m high, motor vehicle lights would not be visible from No.3.

[19]On preserving the status quo and a sense of spaciousness, the proposed modification, even if followed by another to permit a further dwelling at a lower level behind No.3, would not act as a precedent for altering the essential characteristics of the building scheme. Those characteristics were a series of separate houses with open frontage to the close.

[20]On the loss of view, the existing levels and the approved landscaping scheme would remove any sight of the proposed dwelling from No.5 except from a single first floor landing window and its garden and the replacement garage for “Evergreen” would be largely obscured by existing planting. The new dwelling would not be visible from any of the ground floor windows at No.3. It might be visible from the rear first floor windows, but because of the angle at which No.3 was constructed, a view of the proposed dwelling would only be possible when standing directly in front of a window and looking at an acute angle. The occupiers of Nos.1, 2, 6 and 7 Orchard Close and The Hollies could not see the existing site and would not see the proposed dwelling once constructed.

[21]On the sewer, the applicants were prepared to accept a condition requiring them to replace and subsequently protect the common sewer within the curtilage of the proposed buildings.

[22]On disturbance during the construction period, there would not be any additional nuisance or annoyance caused that would have a material effect on the enjoyment of the occupation of the properties in the close. Any disturbance would be limited to a period of about two months, during which time the site would be prepared, the foundations laid and the walls and roof constructed. Thereafter the internal work and installation of services would not cause any disturbance. The additional traffic movements and construction noise would be no different from that which might be caused by the construction of an extension or a major repair scheme to any of the properties in the close. 7

[23]Finally, the applicants said that the amenities of the objectors’ houses could only be adversely affected by loss of view, loss of privacy, increase in noise or increase in artificial light levels and that none of these would be sufficiently serious to result in a reduction in market value of any of the properties in question.

[24]In my judgment, given the existence of the planning permission, the proposed use of the application land is reasonable, in the sense in which that word is used in paragraph (aa). Although the two proposed vehicular accesses would result in traffic leaving the application land close to the existing exits from Nos.3 and 5, the number of traffic movements is likely to be small in each case and the potential hazards seem to me to be very small and of the type which are commonly met with the exercise of normal care.

[25]I consider that the effects of the proposed development upon the objectors’ properties are likely to be as follows. The view of the bungalow would be slight in the case of Nos.3 and 5 and otherwise virtually non-existent. There would be no material interference with the privacy and sense of spaciousness of any of the properties apart from No.3, where the effect would be limited. The additional noise would be marginal, as would the long-term increase in on-street car parking. There would be little risk of damage to the common sewer, provided the condition that was suggested by the applicant during the course of the hearing was imposed. Although there might be an increase in artificial lighting, the applicant is also prepared to accept a condition minimising any such impact. The removal of part of the front wall to form a vehicular access to the proposed replacement garage for the existing house, “Evergreen”, would have an adverse effect on the character of the close by breaching its largely unbroken façade. That work, however, would not of itself breach the restrictions. If the present application were successful, it might encourage an attempt to build a bungalow in the rear garden of No.3, or possibly a total of three or four bungalows in the combined rear gardens of Nos.3 and 4. Any such applications would be treated on their merits, both by the planning authority and this Tribunal. Whether the modification of any restriction would be ordered would be likely to depend largely on the impact of the proposed development on the amenities of the neighbouring houses. It seems to me, however, that it is extremely unlikely that this Tribunal would permit anything more than one further unit to be erected in the close, as any more intensive development would be likely to have a substantially adverse effect on those entitled to the benefit of the restriction.

[26]I accept Mr Huntington-Whitley’s evidence that the proposed modification would not reduce the prices which could be obtained for the objectors’ properties if offered for sale in the open market and that the proposed modification would increase the value of No.3 by creating a significant hope value in respect of its rear garden. I bear in mind that in a case where a building scheme exists, there is a greater presumption that restrictive covenants will be upheld and therefore a greater onus of proof upon any applicants for the modification of covenants to show that the requirements of section 84 of the Act are satisfied (see Gilbert v Spoor

[1983] Ch 27

and Re Bromor Properties Ltd’s Application

(1995) 70 P & CR 569

). I also bear in mind that a number of alterations have been made to houses in Orchard Close in breach of restrictive covenants. These works were, however, all minor in nature compared with those which are currently under consideration. Nevertheless, I do not consider that the ability to prevent the limited adverse effects which I have identified in paragraph 25 above constitutes a practical benefit of substantial value or advantage to the objectors which is secured by the relevant 8 restrictions. The objectors would suffer some disturbance while the proposed building works were being undertaken. It seems to me, however, that such disturbance would not be substantial and could effectively be dealt with by the award of compensation. I therefore conclude that the requirements of paragraph (aa) are satisfied.

[27]I have referred to a number of minor disadvantages which I have found would be suffered by the objectors if the restrictions were modified. I do not consider that, overall, it can properly be said that the modification would not injure the objectors. The applicants have therefore failed to substantiate ground (c).

[28]The requirements of ground (aa) having been satisfied, I have jurisdiction to modify the restrictions. I am satisfied that I should exercise my discretion to modify them. Accordingly, I order that the restrictive covenants in the conveyance dated 20 October 1952 shall be modified to so as to permit the erection of one single storey house or bungalow on the application site, in accordance with the planning permission dated 14 June 2002 or any subsequent permissions which are the renewal of that permission and including any reserved matters approved pursuant to such permission or permissions. This order is subject to the following conditions being complied with:-a. Before the commencement of any building works, the applicants shall replace and subsequently protect the common sewer within the curtilage of the proposed building, including the garden of the new bungalow and the driveway leading to it.

b. No artificial lighting shall be provided on the outside of the proposed bungalow or garage, or in the driveway leading thereto.

c. The new garage to serve “Evergreen” shall be located as shown on page 8 of drawing No.386/02/04G, revised 19 February 2004.

d. The applicants shall replace with equivalent trees any existing trees that may be damaged during the construction process or may die shortly thereafter.

[29]Finally, I turn to the sums of money which would be required to compensate the objectors for the loss or disadvantage which they would suffer from the proposed modification. They would suffer temporary losses while the new house is in course of construction, in the form of noise, dust, disturbance and possible parking and access difficulties. In my view, the amounts payable to each of the objectors to compensate for these losses, and for the loss of privacy to No.3, are as follows: 1 Orchard Close £250 2 Orchard Close £250 3 Orchard Close £750 5 Orchard Close £350 6 Orchard Close £250 7 Orchard Close £250 The Hollies £200 9

[30]An order modifying the restrictions along the lines indicated will be made by the Tribunal provided, within three months of the date of this decision, the applicants shall have paid these sums to the owners of each of the objectors’ properties.

[31]A letter on costs accompanies this decision, which will take effect when, but not until the question of costs is decided. Dated: 7 March 2005 N J Rose FRICS Addendum

[32]I have received written submissions on costs from the parties.

[33]The applicants ask for their costs. Their application was successful. The covenants are to be modified to permit the proposed bungalow and other works, subject to conditions that they have accepted. The total compensation of £2,300 awarded is much less than that contained in a with-costs sealed offer dated 16 November 2004 – namely, individual offers totalling £17,500 or a consolidated offer of £21,000 to be distributed as the objectors might agree among themselves. In the circumstances, the applicants should at all events have their costs from 26 November 2004, the last date for acceptance of the sealed offer and costs should be awarded on an indemnity basis, by analogy to CPR part 36.21.

[34]The applicants also seek their costs incurred before 26 November 2004. They say that the objectors’ failure to accept the sealed offer was unreasonable. Moreover, after the County Court hearing and before the Lands Tribunal proceedings, the applicants offered a permanent undertaking not to pursue their application to the Tribunal on the basis that the parties met their own costs. This rejected offer was put on record by the applicants on 15 April 2003. No counter-offer was made by the objectors, who have never indicated openly or by sealed or Part 36 offers that they were prepared, even unwillingly, to accept modification of the covenants, in circumstances where there was at least a real possibility that the Tribunal would order a modification. The objectors have not acted reasonably and an order for payment of the appropriate costs is therefore justified.

[35]The objectors submit that there should be no order as to costs, for the following reasons. They succeeded in their opposition to the application under (c). Their objections under para (aa) were reasonable; they were trying to protect property rights to which they were entitled 10 but for the application. The applicants only obtained modification of the restriction on terms which were more onerous than those offered in either their application or the letter of 16 November 2004. Finally, the applicants can expect to receive a considerable financial advantage as a result of the Tribunal’s decision.

[36]An unsuccessful objector who had the benefit of a covenant which has been discharged or modified will not normally be required to pay any part of the applicant’s costs unless he has acted unreasonably. This is because the applicant is seeking to have removed from the objector particular property rights that the objector has. I do not consider that the objectors acted unreasonably in this case, for the following reasons. Although unsuccessful, their objections were sincerely and properly held. It is therefore quite understandable that they did not indicate that they were prepared to accept compensation for modification of the covenants, with or without conditions. They succeeded in their opposition to the application under paragraph (c). The applicants have not “bettered” the sealed offer, because the Tribunal imposed conditions which were not contained in the letter of 16 November 2004. It was not unreasonable of the objectors to refuse to pay their own costs of the County Court proceedings, bearing in mind that they had been largely successful in those proceedings.

[37]I therefore determine that there be no order as to costs. Dated: 5 April 2005 N J Rose FRICS 11