CHRISTOPHER PAUL BROWN VICKI MAY BROWN LP/34/2004

UPPER TRIBUNAL

LANDS CHAMBER

LP/34/2004

Case No LP/34/2004

Between

CHRISTOPHER PAUL BROWN VICKI MAY BROWNApplicant

Before

N J Rose FRICS

Venue Worcester Crown and County Court

Date 23 June 2006

Hearing 11 April 2006

Property: “Witsend”, 18 Aconbury Close, Worcester WR5 1JD

Catchwords: RESTRICTIVE COVENANT – discharge – dwellinghouse – prohibition on parking any boat, caravan, house on wheels or commercial vehicle – application dismissed – Law of Property Act 1925, s 84(1)(a)(aa)(b) and (c)

[1]This is an application by Mr Christopher Paul Brown and Mrs Vicki May Brown (“the applicants”) under paragraphs (a), (aa), (b) and (c) of section 84 of the Law of Property Act 1925, seeking the discharge of a restrictive covenant affecting freehold land containing a dwellinghouse, known as “Witsend”, 18 Aconbury Close, Worcester, WR5 1JD (“the application property”) so as to permit the parking of a caravan and other items on the land.

[2]The restriction in question was imposed by a conveyance of the application property dated 30 January 1989 to the applicants by Philip Alexander Love, Audrey Joan Love, William Arthur Love and Mabel Roslyn Love. The Third Schedule of the conveyance contained, among others, the following covenant by the purchasers:

“5. Not to park any boat, caravan, house on wheels or commercial vehicle on any part of the property.”

[3]Shortly after purchasing the property and in breach of that covenant, the applicants parked a caravan on part of the front garden area abutting the north-eastern end of Aconbury Close. Following representations from a number of neighbouring house owners, Messrs PA, AJ, WA and MR Love, the original developers of the part of the close which includes the application property, instituted proceedings against the applicants in the Worcester County Court. Those proceedings were compromised and, in March 1993, a consent order was issued which provided as follows: “1. That the Defendants, whether by their servants, agents or otherwise shall forthwith remove from the property known as 18 Aconbury Close, Worcester, WR5 1JD (‘the Property’) any boat, caravan, house on wheels or commercial vehicle from the Property as specified in a covenant in schedule 3 paragraph 4 (sic) (‘the Covenant’) of a conveyance dated 30 January 1989 and made between the Plaintiffs and the Defendants.

[2]That the Defendants be restrained from bringing onto the property any boat, caravan, house on wheels or commercial vehicle as specified in covenant.

[3]That the Defendants will pay the Plaintiffs’ costs of this action to be taxed if not agreed on the standard basis according to County Court scale 1.”

[4]It is agreed that the objectors present at the hearing are entitled to the benefit of the restriction. They are Messrs P A and W A Love, two of the original vendors, Mr A A Wall and Mrs E H A Wall (26 Aconbury Close), Mr G T C Rowberry and Mrs H J Rowberry (28 Aconbury Close) and Mr R C Welford and Mrs P A Welford (30 Aconbury Close).

[5]Evidence was given by Mr Brown, Mr P A Love, Mrs Welford, Mr Wall and Mr Rowberry. Shortly after the conclusion of the hearing I inspected the application property and the surrounding area, particularly 26, 28 and 30 Aconbury Close, in company with representatives of the parties. There was a dispute at the hearing as to the extent, if any, to 2 which houses in the vicinity of the application property were sold subject to the relevant restriction. Subsequent to the hearing, and with permission of the Tribunal, Mr Brown obtained and submitted copies of the original transfers of 12 and 32 Aconbury Close. Mr Love, Mr and Mrs Wall and Mr and Mrs Rowberry have commented on these documents and Mr Brown has also made further observations. I have borne all these submissions in mind in reaching my conclusions.

[6]In the light of the evidence and my inspection I find the following facts. Aconbury Close comprises a cul-de-sac which runs north off Newtown Road (B4636), and was developed in three main phases. The application property is one of eleven houses built by Love Brothers in the late 1980s and early 1990s, all abutting or situated close to a kidney shaped turning area at the north eastern head of the road. At the time of the proceedings which culminated in the consent order in 1993, the area in front of the applicants’ house comprised two distinct sections. There was a parking area immediately in front of the house, capable of accommodating up to three motor cars. Immediately to the north of that area, abutting the head of the cul-de-sac, was a garden consisting of grass, shrubs and trees. In recent years the applicants have surfaced the latter area with block paving and it is now physically possible to park about five cars upon it. The applicants used the latter area to park a caravan in the early 1990s and it is their intention to do so again if the present application is successful.

[7]Mr Brown made the following points in support of the application under paragraph (a). There had effectively been a breach of covenant by consensus on the part of residents of the close. Each resident had accepted over the seventeen years of the community’s existence that the storage of boats, caravans and commercial vehicles was acceptable and normal in modern society. In practice only a few houses had grounds large enough to accommodate a caravan or boat. The covenant was only placed on a few houses by the original developer. Many properties were sold without the covenant, or the covenant was removed by negotiations prior to the sale. It was only reasonable that each resident should be bound by the same restrictions and conditions. In modern times many occupants needed to bring commercial vehicles home. This included vans and lorries used by tradesman and company cars for executives. Over the years most of the house owners had parked boats, caravans and especially commercial vehicles and continued to do so. The parking of caravans and commercial vehicles continued. Three tradesmen stored their commercial vans and lorries in front of their properties. Many company cars were parked in the close. There had been no dispute between neighbours at any time over these ongoing breaches. In particular, the objectors had not complained about 32 Aconbury Close, where a caravan had been stored for many years in full view of the neighbours and 24 Aconbury Close, where a commercial vehicle had similarly been parked. If the covenant in question were enforced the consequences would be both farcical and catastrophic. Many residents would have their livelihoods and social lives disrupted. It would even be a breach of covenant for a service engineer or repair person to park on any property for the duration of a call out.

[8]Mr Brown suggested that the majority of residents supported the application to remove the covenant, evidenced by the minimal number of objections. Four neighbouring residents had written in support of the application. Other restrictive covenants within the deeds of all residents in the cul-de-sac were continually broken. One covenant prohibited any type of manufacture. Another limited the use of garages to the storage of cars. These covenants were 3 constantly broken as many residents carried out commercial manufacturing activities on an ongoing basis from their garages. Many residents also worked from home, which was a breach of another covenant. At no time had this caused any dispute between residents. The recent construction of a hospital in the vicinity had resulted in the cul-de-sac being used by hospital visitors for parking. The local authority had responded by converting the street to an access only area, but this restriction was widely disregarded. If further parking restrictions were imposed, there would be nowhere for commercial vehicles and visiting tradesmen to park. The application, if granted, would ease congestion in the street. The effect of the covenant was that the applicants were forced to park their caravan on the road on the three or four occasions each year when they brought it back from storage on a farm, to be cleaned and prepared for the next holiday.

[9]On paragraph (aa), Mr Brown said that since the covenant was imposed society had moved on. Because of congestion on the roads, many people now worked from home and consequently parked their vehicles at home. Recent global events had persuaded many people to take their holidays in the UK and this had vastly expanded the use of caravans. The covenant in question was now out of keeping with modern times. As there had been multiple breaches of covenants throughout the cul-de-sac, and as many residents had no such covenant in place, it was only reasonable for the covenant to be lifted to give parity within the locality. The application property could not be seen from the objectors’ houses. Moreover, the objectors had no problem with the ongoing breaches of other covenants by most other residents. Consequently they could not gain any material advantage from their objection. One objector was himself in breach of three of his own covenants and another was in breach of the covenant which is the subject of the current application.

[10]Mr Brown’s case on paragraph (b) was this. When the objectors who still lived in Aconbury Close were approached regarding the proposed discharge of the covenant, none expressed any reservations. All preferred caravans to be stored on the paved area within the application property as opposed to on the road itself. The willingness of the original builder to lift or exclude the covenant from the deeds of the majority of houses indicated his general agreement to the removal of the covenant.

[11]On ground (c) Mr Brown said that none of the objectors could actually view the paved storage area from their windows. They had suffered no injury in the past as a result of the multitude of breaches by other residents, which they had accepted without complaint. The objectors had effectively endorsed the lifting of the covenant by their own apparent continued breach of all other covenants. It was a paradox that the objectors expressed a desire to retain the quiet enjoyment of the area by means of the covenant, while simultaneously degrading the locality by parking their cars on their front lawns. The quiet enjoyment of the locality could not be spoiled by retaining the covenant, as multiple breaches were already evident.

[12]The objectors’ case was as follows. Residents in the close had not accepted that the parking of boats, caravans and commercial vehicles was now acceptable. The restriction had been imposed on all eleven houses developed by Love Brothers. It was that company’s policy to exclude or modify the covenant only in exceptional circumstances. The suggestion that the covenant had been breached by most of the homes was denied. It was accepted that a caravan had been parked at the side of No.32 for a number of years. No action had been taken, because 4 the home owner had assured her neighbours that such parking was authorised by the relevant conveyance. With the exception of No.24, it was not accepted that commercial vans and lorries were parked in front of any of the remaining houses in the Love development with any regularity, although the occasional short-term visit by a contractor took place and was considered acceptable. The parking of company cars was not in breach of covenant. Only four residents out of eleven had written to support the application. The letters of support came from Nos.12, 20, 24 and 32. All were social acquaintances of the applicants. The letter from No.24 was written by the tenant who was himself in breach of covenant. The owners of Nos.20 and 12 could not see the proposed parking area from their houses. The lack of objections from the remaining houses could not be taken as evidence of their willingness to discharge the covenant. The suggestion that many residents carried out ongoing commercial manufacturing activities from their garages was unfounded. The objectors had never agreed to the discharge of the covenant. The paved area which it was proposed to use for parking a caravan could be seen from the objectors’ windows and was prominently visible as they approached their homes. Conclusions

[13]If an application is to succeed under paragraph (a), the applicant must demonstrate that 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.

[14]In Re Truman, Hanbury, Buxton and Co Ltd’s Application

[1956] 1 QB 261

, Romer LJ (with whose judgment Lord Evershed MR and Birkett LJ agreed) referred to the expression “obsolete” in the following terms: “It seems to me that the meaning of the term ‘obsolete’ may very well vary according to the subject-matter to which it is applied. Many things have some value even though they are out of date in kind or in form – for example, motor-cars or bicycles, or things of that kind – but here we are concerned with its application to restrictive covenants as to user, and these covenants are imposed when a building estate is laid out, as was the case here of this estate in 1898, for the purpose of preserving the character of the estate as a residential area for the mutual benefit of all those who build houses on the estate or subsequently buy them. It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word ‘obsolete’ is used in section 84(1)(a).

[15]It is clear that, in the present case, the restriction was imposed for the benefit of the residents of the eleven houses developed by Love Brothers, in order that they should be entitled to the continued enjoyment of the residential amenities of the area. In considering the 5 extent of the material changes which have taken place in the character of the neighbourhood, it is my view that the neighbourhood comprises those eleven houses.

[16]I am not persuaded that Mr Brown’s suggestion – strongly denied by Mr Love – that the covenant was only placed by Love Brothers on a few houses is accurate. It is true that, in the case of two of the eleven houses, the restriction was amended on the occasion of the first sale. So far as No.32 is concerned, the restriction only applies to the parking of a boat, caravan etc “on the front of the property”. Apparently, therefore, the parking of a caravan along the side or at the rear of the house, where it would in my judgment be less prominent than if it were parked on the site now proposed by the applicants, is permitted. As for No.12, the original purchaser covenanted “not to park any boat or commercial vehicle on any part of the property”. Although a caravan may therefore be parked on the site of No.12, it is not so parked at present. If it were, the location of No.12 is such that the impact on the visual amenities of the remaining ten houses would again be significantly less than in the case of the application property. In any event, the original transfers of Nos.12 and 32 took place in 1991 and Mr Brown accepted that there had been no justification for discharging the restriction some two years later, when the original action to enforce the restriction on the application property was settled. In view of that admission it is difficult to see how the terms of the restrictions imposed on those two properties in 1991could be said to justify the present application.

[17]Mr Brown placed considerable reliance on the absence of any dispute between residents in the face of what he described as continual breaches of other restrictive covenants by owners of the eleven houses developed by Love Brothers. I am satisfied that this aspect of Mr Brown’s evidence was exaggerated, for the following reasons. Firstly, he stated that Mr Rowberry assembled light aircraft in his garage in breach of the prohibition on manufacturing. Mr Rowberry’s evidence that he builds radio-controlled model aircraft and model trains in his garage as a hobby seems to me to be far more credible and I accept it. Secondly, in support of his contention that there had been multiple breaches of the covenant prohibiting the parking of commercial vehicles, Mr Brown produced a photograph of a garden maintenance vehicle parked on the site of No.30. When Mrs Welford explained that that vehicle had arrived early one Saturday morning and had been removed by the following afternoon, Mr Brown replied that the length of time the vehicle was parked was not relevant. I consider that to equate parking for one weekend with the permanent parking that is currently proposed does not demonstrate an objective approach. Finally, Mr Brown’s statement that “there has been no dispute between neighbours at any time” over breaches of the restrictive covenant is contradicted by the consent order to which he was a party in 1993.

[18]With the exception of No.24, I am not satisfied that vans and lorries are parked within the curtilages of the eleven houses in the neighbourhood on anything other than a short-term basis. A plumber’s van has been parked in front of No.24 continually during the past 18 months. Mr Rowberry said, however, that proceedings had not been taken to bring an end to this breach of covenant only because the present occupier was a tenant and not the freeholder. If the objections to the present application were successful, and if the van continued to be parked in front of No.24, steps would be taken to ensure compliance with the covenant. I accept that evidence. The parking at No.24, therefore, is not a circumstance that is material to the consideration of the present application. Nor do I consider that the parking of company cars – upon which Mr Brown placed reliance – is in breach of the restriction in question. 6

[19]Finally, as I have said, Mr Brown accepted that there had been no justification for discharging the restriction in 1993, but he argued that the subsequent paving of the proposed parking area constituted a material change of circumstances which warranted a different approach being adopted today. In fact, the restriction was not imposed in contemplation that the area would be grassed rather than paved. It was imposed in order to prevent caravans and other specified objects being parked on the land. The fact that the surface has been changed is, therefore, immaterial.

[20]I therefore conclude that the restriction is still capable of serving the purpose for which it was imposed. It follows that it is not obsolete.

[21]Turning to paragraph (aa), it is clear from my site inspection that the objecting residents, and in particular the owners of Nos.26, can view the paved storage area, to which in practice the application relates, from their windows. This area is also highly visible to all of the objectors (apart from the Love Brothers, who live elsewhere) as they approach their houses. I am quite sure that, if the area were used for parking a boat, caravan or commercial vehicle, the amenities of neighbouring residents would be adversely affected to a significant degree. It would also make it very difficult for the objectors successfully to resist future applications to discharge or modify the restriction in the case of other neighbouring houses. In these two respects, therefore, the restriction secures practical benefits which, taken together, are of substantial advantage to the objectors. Consequently, the requirements of paragraph (aa) are not fulfilled.

[22]Paragraph (b) provides as follows:

“that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interest in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified.”

[23]Mr Brown’s evidence that each of the objectors had agreed to lift the restriction was forcefully denied by Mr Wall, Mr Rowberry and Mrs Welford. Mr Brown did not produce any written support for his suggestion, but merely referred to verbal discussions on unspecified dates. Bearing in mind that Mr Rowberry was one of those who pressed Love Brothers to institute proceedings for breach of the restriction in the early 1990s, and that he has maintained his objection to the current application throughout, I consider that Mr Brown’s evidence on the point is implausible and I reject it. The application on paragraph (b), therefore, has not been made out.

[24]In view of my findings on paragraph (aa), it is clear that the discharge of the restriction would cause injury to the objectors, so that paragraph (c) has not been substantiated.

[25]As the applicants have not succeeded in establishing any of the grounds relied upon, the application is dismissed. 7

[26]The parties are now invited to make representations as to costs, and a letter relating to that accompanies this decision, which will take effect when but not until the question of costs has been determined. Dated 19 May 2006 N J Rose FRICS Addendum on Costs

[27]I have received responses to the request for written submissions on costs from the applicants and from certain of the objectors. No party has asked for an award of costs. I therefore make no order on the subject. Dated: 23 June 2006 N J Rose FRICS 8