HAVERING COLLEGE OF FURTHER AND HIGHER EDUCATION LP/89/2004

UPPER TRIBUNAL

LANDS CHAMBER

LP/89/2004

Case No LP/89/2004

Between

HAVERING COLLEGE OF FURTHER AND HIGHER EDUCATIONApplicant

Before

The President

Mr N J Rose FRICS

Joseph Harper QC (instructed by Finers Stephens Innocent) for Applicant

Venue Procession House, 110 New Bridge Street, London EC4V 6JL

Date 1 November 2006

Hearing 12 and 13 September 2006

Property: Havering College of, Further and Higher Education,, Centre of Creative Arts, Media and Music,, Harrow Lodge,, Hyland Way

Catchwords: RESTRICTIVE COVENANT − discharge − school site – restrictions on form of housing on redevelopment – held obsolete in part – whether maintenance of restrictions contrary to public interest – whether restrictions securing practical benefits of substantial value or advantage – whether injury – compensation of £7,500 awarded in respect of one objection – Law of Property Act 1925 section 84(1) (a), (aa) and (c)

[1]This is an application by Havering College of Further and Higher Education under section 84 of the Law of Property Act 1925, seeking the discharge or modification of restrictions affecting freehold land containing educational premises known as Havering College of Further and Higher Education, Centre of Creative Arts, Media and Music, Harrow Lodge, Hyland Way, Hornchurch, Essex, RM11 1DY. The restrictions are contained in a conveyance dated 23 April 1931 between Alfred Joseph Traylen Carter (“the Vendor”) and the County Council of the Administrative County of Essex of about 6 acres of land within the 55- acre Bush Elms Estate, which, at the time of the conveyance, was being developed for housing. Rather more than half the land was developed with houses in the 1980s, and the application land, 2.64 acres in area, is the residue.

[2]The applicant no longer requires the application land for educational purposes, and it has obtained planning permission to develop it with 44 two- and three-bedroom houses. The restrictions placed limitations on the way in which the land conveyed could be developed for housing in the event of its ceasing to be used for educational purposes, and the application seeks the discharge or modification of these so as to enable the development for which it has obtained planning permission to be implemented. There are objections from residents in 78 houses on the estate, 71 of whom were represented by one of their number, Mr Danny Westlake, of 66 Hyland Way. Mr David Bacon of 89 Hyland Way appeared for himself and his wife. The others did not appear and were not represented.

[3]For the applicant Mr Joseph Harper QC called as witnesses John Brian Newton FRICS of John Newton Associates (planning and amenity), Howard Andrew Newman FRICS of Howard Newman Associates (valuation) and Graeme McNeill PGDip, BSc(Hons) MIHT ACIOB of Colin Buchanan and Partners (traffic). Mr Westlake and Mr Bacon both gave evidence. Mr Westlake also put in witness statements from Mr J and Mrs C Mayers at 95 Hyland Way and Mr D and Mrs S Perry of 97 Hyland Way, although none of those objectors attended at the hearing. In company with representatives of the parties we inspected the application land and the surrounding area, including internal visits to the houses of Mr Westlake and Mr Bacon, on the afternoon of the second day of the hearing. The application land and the surrounding area

[4]The Bush Elms Estate extends to approximately 55 acres (22.27 hectares) and is situated about one mile south-east of Romford town centre. It was developed in the 1930s. The housing consists in the main of semi-detached, two-storey houses, although there are also short terraces of two-storey houses, some single storey houses and a small number of detached houses. All the houses have deep rear gardens, and these contain many trees. The roads are straight and mostly long, and they contain the following number of houses: 3 Hyland Way 99 Hyland Close 55 Bush Elms Road 154 Hillcrest Road 167 Park Crescent 41 Park Lane 43 Hornchurch Road 13 Total 572 houses Park Crescent, Hillcrest Road, Bush Elms Road and Hornchurch Road run east-west and Park Lane, Hyland Way and most of Hyland Close run north-south.

[5]At the time that the housing development was carried out, the site that had been conveyed to Essex County Council was developed as Bush Elms School. It had a frontage of 352 feet to Hyland Way on the west, was wider at the rear and extended eastwards for 553 feet. It was the eastern part of this land that was developed in the 1980s. Rockingham Avenue, which ran north-south as far as the northern boundary of the school, and had been developed with detached dwellings, all outside the Bush Elms Estate, was extended into the site, forming a curved cul-de-sac with ten detached houses on its eastern side and a hammer-head at the end. To the south of the college site Hyland Close was extended for a short distance at its northern end to form another cul-de-sac and eight detached houses were built, three on either side and a further two at the end.

[6]The applicant ceased using the application land in July 2006. The college had previously provided for 600 students. It was not open at weekends. The original school building, erected in 1931, is set back behind a tarmacadam car park and there are extensive newer buildings, including, on the south side, a large brick and glass flat-roofed building about 18 feet in height and, on the north side, a grey pre-fabricated pitched roof building. The footprint of the buildings is 3,380m2, a site coverage of approximately one third. The car park has room for about 100 cars. There is amenity space for the students (the former school playground) and a small open space area to the rear adjoining Rockingham Close of approximately 0.18 acres (0.073 hectares). The campus has vehicular access from Hyland Way to the west of the site. Along Hyland Way to the north and south of and opposite the application land the properties are a mix of two-storey semi-detached houses and single storey semi-detached bungalows, all developed in the mid 1930s to a similar design. To the east, the application land is bounded by an area of dense planting, which forms part of the 1980s development of detached houses at the end of Rockingham Avenue. There is no pedestrian or vehicular access from the land onto Rockingham Avenue. To the south, the site is separated from the adjoining residential development by a public footpath that leads from Hyland Way to Harrow Drive. Beyond the footpath are the rear gardens of properties in Hyland Way and Hyland Close. To the north the site abuts the rear gardens of properties in Hyland Way and Rockingham Avenue. Hylands Park, owned by the London Borough of Havering and extending to 16.6 acres (6.7 hectares) is some 200m to the north of the site in Hyland Way. 4 The restrictions

[7]Clause 2 of the conveyance of 23 April 1931 provides:

“For the benefit of the estate belonging to the Vendor and known as the Bush Elms Estate or the part thereof for the time being remaining unsold and so as to bind the property hereby conveyed into whosesoever hands the same may come the Council hereby covenants with the Vendor that the Council and its successors and assigns will henceforth at all times hereafter observe and perform all and singular the restrictions stipulations and conditions contained in the First Schedule hereto.”

[8]The First Schedule has two parts and, so far as is relevant, contains the following restrictions: “PART 1

[1]The Council will forthwith erect to the satisfaction of the Vendor or of his surveyor and for ever hereafter maintain a good and sufficient brick built wall not less than eight feet in height with spiked top along the length thereof between the points “A B,” “B C,” “C D,” and “D E” on the said plan and a good and sufficient fence not less than six feet in height on all the remainder of the boundaries of the land hereby conveyed.

[2]No part of the land shall at any time be used for the purpose of making or constructing a public road or private street within the meaning of the Private Street Works Act 1892 or any statutory modification or re-enactment thereof.

[3]No urinal watercloset latrine lavatory play-shed or other building or erection of a like nature which may be or become a nuisance shall at any time be erected maintained or used abutting upon or within thirty feet of the boundary line between the points A., B., C., D. and E. on the said plan PART 2 Additional Stipulations which shall apply to the land or any part thereof and any buildings thereon which for the time being shall not be bona fide used as a school with usual offices or for school purposes.

[1]The Council shall forthwith erect and hereafter maintain good and sufficient boundary fences not more than five nor less than three feet in height on all sides of the property hereby conveyed or of any subdivision thereof.

[2]No buildings shall at any time be erected on the said property other than private dwellinghouses in semi-detached pairs only with suitable outbuildings of the value of at least five hundred pounds for each house and each such house shall be erected fronting Hyland Way or any extension of Rockingham Avenue and for the purpose of this condition the cost of each such house shall be taken to be the net first cost in labour and materials alone and no dwellinghouse shall be sold at a less first selling price than six hundred and seventy five pounds.. 5

[3]No dwellinghouse shall be erected on any plot having a plot frontage of less than twenty-eight feet to Hyland Way or any extension of Rockingham Avenue aforesaid.

[4]No house shall be built or adapted for or let out in separate tenements on any part of the property hereby conveyed and no building shall be erected or brought forward on any plot nearer to Hyland Way or any extension of Rockingham Avenue than seventeen feet and all buildings shall be erected in accordance with plans and designs to be approved by the Vendor or his surveyor.” The application

[9]The application seeks the discharge or alternatively the modification of the restrictions in paragraph 2 of Part 1 and paragraphs 2, 3 and 4 in Part 2 so as to permit the construction of 44 residential units, comprising fourteen 2-bedroom and thirty 3-bedroom houses, planning permission for which was granted on 15 March 2004. At the front of the site, facing onto Hyland Way, the permitted development would comprise five pairs of semi-detached houses. The remaining houses, in the middle and at the rear of the site, would be served by an internal estate road accessed only from Hyland Way opposite the junction with Norman Road. In addition to conditions commonly imposed on residential development schemes of this nature, the permission was the subject of an agreement under section 106 of the Town and Country Planning Act 1990, requiring the provision of ten affordable housing units as part of the development, each comprising a 2-bedroom unit for rent. The applicant relies on grounds (a), (aa) and (c) in subsection (1) of section 84. Ground (a)

[10]In submitting that the restriction ought to be deemed obsolete, Mr Harper advanced three principal contentions. Firstly, he said, the form of development for which the restrictions provided, semi-detached houses with long back gardens, was one that was outmoded. No development of that sort was ever now carried out. Secondly, the development already carried out on part of the land conveyed, with detached houses arranged round a close, had not complied with the restrictions, and was inconsistent with their continued maintenance. An amenity strip had been planted on the west side of the close, and the land had been sold off. It was therefore impossible for access to be obtained from Rockingham Avenue to the application land. Thirdly, said Mr Harper, the restrictions did not provide any greater amenity protection to the objectors than was provided by the development control powers of the local planning authority.

[11]Mr Westlake submitted that the restrictions were not obsolete. The original 1930s layout had been preserved. The requirement of one house per plot continued to be observed. None of the following changes had occurred on the estate: construction of industrial units, construction of additional shops (apart from a small number explicitly approved by the vendor in the original conveyances), purchase and redevelopment of land by developers and conversion of hotels to boarding houses. The redevelopment of the eastern section of the college site in the 1980s was arguably in technical breach of the restriction in that it included detached houses 6 instead of semi-detached pairs and because Rockingham Avenue was not joined to Hyland Close when the new houses were built, but two cul-de-sacs were created instead. However, the road arrangement was revised in the interests of amenity, and the fact that houses were built to a specification which exceeded the requirements of the covenant did not constitute a breach. The purpose of the covenant could be achieved, he said, by constructing 12 houses fronting Hyland Way and 9 fronting Rockingham Avenue.

[12]We have set out above all the three paragraphs of Part 1 of the First Schedule to the conveyance, even though it is only paragraph 2 that contains one of the restrictions that are the subject of the present application. We do so because, in our judgment, on a proper reading of the First Schedule, all of Part 1 is shown to relate solely to the education use of the land conveyed. Paragraph 1 of Part 1 is concerned with the erection of a high wall round part of the site with the rest of the land being contained by a 6-foot fence. Paragraph 1 of Part 2, which requires the erection of boundary fences round the property or any subdivision of it, was obviously intended to supersede paragraph 1 of Part 1 at such time as the school use might cease. Paragraph 3 of Part 1 (no WC, playshed etc within 30 feet of the site boundary) is self- evidently related to the school use only. (It would not prevent houses erected within 30 feet of the boundary from having lavatories.) Between paragraphs 1 and 3 is paragraph 2, which prohibits the construction of any public road or private street on the land. This would be incompatible with paragraphs 2, 3 and 4 of Part 2, which contemplate the extension of Rockingham Avenue across the land, were it treated as continuing to apply after the cessation of the school use; and we have no doubt that, like the other two paragraphs of Part 1, it was intended to apply and does apply only to the education use.

[13]The effect of this conclusion is that the restriction in paragraph 2 of Part 1 has not yet become obsolete, since it is the case for the applicant that the education use, though not at present active, has not been abandoned and could continue. If and when the education use comes to an end the restriction will be obsolete, but it will then no longer be of continuing effect because it only has application to that use.

[14]The restrictions in paragraphs 2, 3 and 4 of Part 2 contain, in the order in which they appear, the following elements:(a) only private dwellinghouses to be erected;

(b) semi-detached houses only;

(d) each house to front either Hyland Way or an extension of Rockingham Avenue;

(e) first selling price to be at least £650;

(f) each plot frontage to be at least 28 feet;

(g) no house to be built or let out in separate tenements;

(h) each house to be set back at least 17 feet from the frontage;

(i) erection in accordance with plans approved by the vendor or his surveyor. 7

[15]The restrictions are variously expressed in negative or positive terms, but it is clear that each is restrictive in effect. (Thus the requirement that each house must be erected fronting Hyland Way or any extension of Rockingham Avenue has the effect of preventing the erection of any house that does not front either of these two roads.) It was clearly the fundamental purpose of the restrictions that, at such time as the land was not required for school purposes, it should not be developed other than as housing. Mr Harper accepts that for this reason restriction (a) is not obsolete. The restrictions in Part 2 are the same or similar to those applied in conveyances of other land throughout the estate. The purpose of them was, we think, self- evidently to ensure that on the land conveyed such housing development was in accordance with that on the rest of the estate in terms of layout, design and quality. Quality was ensured by the requirements as to cost and selling price (restrictions (c) and (e)). Design was to be achieved by requiring the approval of the vendor or his surveyor to the plans and designs of the buildings (restriction (i)).

[16]Restrictions (c) and (e) have been rendered of no consequence as the result of inflation, and there is no dispute that these are obsolete. Restriction (i) raises the vexed question whether the effect of such a requirement is that, after the death of the vendor, since there is no vendor to approve the plans or to employ a surveyor who may do so, no houses at all may be erected on the land. Authority that this may be the effect of such a requirement is to be found in Bell v Norman C Ashton Ltd

(1956) 7 P & CR 359

, In re Beechwood Homes Ltd’s Application

[1994] EGLR 178

and Briggs v McCusker

[1996] 2 EGLR 197

. But in Crest Nicholson Residential (South) Ltd v McAllister

[2002] EWHC 2443 (Ch)

, where a restriction on land sold for residential development contained a restriction preventing the erection of any house without the approval by “the Company” of plans and drawings, Neuberger J held that, if the company ceased to exist, the restriction was discharged, and the Court of Appeal expressed agreement with this conclusion ([2004] 2409 at 2430H to 2431C). We should be reluctant to conclude that the effect of the restriction was to prevent all development of the six acres of land after the death of the vendor because this would be to frustrate the fundamental expectation of the parties – that, after it ceased to be required for school purposes, the land should be developed with housing as part of the Bush Elms Estate. It is, however, no part of the objectors’ case that the restriction has this effect, and, in the light of this, we conclude that restriction (i) should be deemed to be obsolete.

[17]As far as layout is concerned, the requirements were that the houses should only be semi- detached (restriction (b)), should front only Hyland Way and Rockingham Avenue (restriction (d)) with plot frontages of at least 28 feet (restriction (f)) and should be set back from the street by at least 17 feet (restriction (h)). On the plan attached to the conveyance Rockingham Avenue was shown as a straight road running up to the boundary of the land on the south side (what came to be called Hyland Close) with a straight road on the same alignment running up to the boundary on the north side (the actual Rockingham Avenue). It is clear that the extension of Rockingham Avenue that was envisaged by paragraphs 2, 3 and 4 of Part 2 was a straight extension of this straight road. The frontage to Hyland Way was shown on the plan as 352 feet and the total depth of the land was 553 feet, including the width of Rockingham Avenue. The plot depth on Hyland Way on the south side of the application land was shown to be 160 feet, so that the depths of plots on either side of an extended Rockingham Avenue would have been at least as great as this. The layout so dictated was thus a conventional 1930s layout, with semi-detached houses on deep rectangular plots set out along parallel roads. The density of the development was about 8 houses to the acre, and the depth of the gardens 8 backing onto each other provided very substantial separation between the houses at the rear and a large area in which trees and shrubs could grow. It was this last factor to which Mr Westlake attached most importance.

[18]Mr Harper suggested that the layout provided for was out of accord with modern town planning precepts and would not receive planning permission, and that it should be adjudged obsolete for this reason. We do not accept, however, that, if we were to refuse to discharge or modify the restrictions, the planning authority would necessarily refuse to permit development that accorded with the restrictions to the extent that it was still possible to do so. It is more likely, however that a development of the sort suggested by Mr Westlake, with detached houses on the eastern part of the site, would be proposed, since this could be expected to be acceptable to those entitled to enforce the covenant. We think it unlikely on the evidence before us that the local planning authority would in these circumstances refuse permission for a development of this sort that complied with its housing policies (in particular policies HSG5 and ENV1, which we refer to below), and would opt instead to sterilise the site for residential development.

[19]The layout provided for by the restrictions is undoubtedly old-fashioned, but it is not on this account, in our view, obsolete in terms of ground (a). The reality is, however, that the layout can no longer be achieved on the whole of the land that is the subject of the present application. Rockingham Avenue has been extended, in the form of a slightly curving cul-de- sac with a hammer-head end, and detached, rather than semi-detached, houses have been built on the east side of the cul-de-sac and at the end. These do not “front” the road in the sense intended by the restriction, which in our view contemplates a straight road with houses facing it foursquare. It is, it seems to us, no longer possible for houses to be built on the west side of the extension fronting it in the way provided for − not, we think, for the reasons advanced by Mr Harper (that a shrubbery has been planted and the land is in different ownership: these do not constitute insuperable barriers) but because the extension is not the straight road on which the frontage restriction is dependent. Houses built on the application land thus could not front the extension to Rockingham Avenue in accordance with restriction (d), and they would not face semi-detached houses similarly fronting that road as provided for by restrictions (b) and (d). The essence of the layout provided for − semi-detached houses fronting parallel roads − is, therefore, no longer achievable on that part of the application land on which the extension to Rockingham Avenue was envisaged.

[20]On the other hand semi-detached houses complying with the frontage and plot width requirements could still be built on Hyland Way. Indeed the planning permission provides for the erection of five pairs of semi-detached houses on this frontage and these appear wholly to accord with the restrictions. To this extent, therefore, the restrictions are not obsolete. Apart from this, however, we conclude that by reason of the development that has taken place on the land adjoining the application land on the east the restrictions controlling the type and layout of the houses ((b), (d), (f) and (h)) should be deemed to be obsolete.

[21]The remaining restriction to be considered is (g):

“No house shall be built or adapted for or let out in separate tenements”

. Mr Harper submitted that this was, or contained, a prohibition on letting, so that it would prevent the letting of the proposed houses. He submitted that it was obsolete since buying to let was now part of the established scene. In our 9 judgment, however, the restriction is a prohibition not on letting in general but on the construction, adaptation or letting of any house as more than one tenement (or unit of tenure). It is a covenant against sub-division. Construed in this way we have no evidence that would lead us to conclude that it was obsolete (or indeed that the restriction should be discharged on other grounds). Ground (aa)

[22]In view of the conclusion we have reached on ground (a) we do not need to reach conclusions on the other grounds in order to determine the application. Virtually all the evidence that was called at the hearing, however, was directed towards establishing ground (aa) (and the associated ground (c)), and it is appropriate, we think, that we should express our conclusions on this. Moreover the matters to which the evidence was directed are material to the question of compensation, which we shall need to address later on.

[23]A restriction may be modified or discharged on ground (aa) if it prevents some reasonable user of the land and (subsection (1A)) and in doing so does not secure to those entitled to the benefit of it practical benefits of substantial value or advantage or is contrary to the public interest. There is no suggestion on the part of the objectors that the development for which planning permission has been granted does not constitute a reasonable user, and indeed as residential development with the benefit of planning permission within the area of a residential estate it is manifestly reasonable. The case for the applicant was put on the basis of both paragraph (a) of subsection (1A) − no practical benefits of substantial value or advantage − and (b) − contrary to the public interest. We will take the second of these first. Ground (aa): public interest

[24]As put by Mr Harper the applicant’s case was that the public interest, as evinced in national and local planning policy, required that brownfield sites should be redeveloped for housing; that such redevelopment should be at a density that was not wasteful of the scarce resource of building land; and that affordable housing should be provided. The public interest, Mr Harper said, clearly came into play where, as here, there was no dispute that housing development was appropriate. If it had not been expressly contemplated by the covenants, the situation might well have been different.

[25]The applicant’s planning witness, Mr Newton, said that the operative development plan was the Havering Unitary Development Plan, adopted in March 1993. He produced a copy of what, he said, was the policy that dealt with amenity considerations, ENV1. This policy lays down a number of specific requirements, which are said to be intended to ensure that all new developments are satisfactorily located and are of a high standard of design and layout. Amenity considerations, Mr Newton said, had been dealt with in the officer’s report on the planning application. Any development that complied with the covenants would, he said, be in direct conflict with current national and local planning policies, and would not be supported by the council or on appeal. He referred to DETR circular 13/96: Planning and Affordable Housing and to the circular that replaced this in April 1998, circular 06/98. 10

[26]Mr Harper put before us an extract from PPG3 Housing (2000), which, at para 57, states that local planning authorities should avoid the inefficient use of housing land and, at para 58, says that they should therefore avoid developments of less than 30 dwellings per hectare and encourage housing development at greater densities than this.

[27]Mr Westlake produced extracts from the UDP that contained, in addition to policy ENVI, policy SR1, setting out the general objective for development in the borough, and policy HSG 5, which states that, when considering development proposals, the council will have particular regard to the need for housing; one and two bedroom homes for small households; large “executive” houses; and specialised accommodation for the elderly.

[28]We are quite unable to conclude on the evidence before us that maintenance of the restrictions would be contrary to the public interest. It certainly does not follow simply from the fact that there are general policies encouraging higher densities and affordable housing and that the restriction would impede development that accorded with such policies. All planning policies are defined in terms of what the policy-making body sees as the public interest, but the process of development control recognises the need to balance conflicting considerations both of policy and other matters. In the present case PPG3 Housing seeks development at higher densities, while UDP policy HSG5 identifies a need, among other housing types, for large executive houses and ENV1 seeks high standards of design and layout. The appropriateness of any particular housing development on a site that is suitable for housing is essentially a matter of planning judgment, weighing together the relevant policies and other material considerations. It is not possible in the light of this to conclude that, in preventing this one particular form of development that has been permitted, the restriction is contrary to the public interest, and indeed, if that had been the conclusion, few restrictive covenants limiting the density of housing development in residential areas would be now free from potential modification or discharge. Ground (aa): practical benefit of substantial value or advantage

[29]The evidence of both the applicant and the objectors made two comparisons: on the one hand between the proposed development and the existing development and, on the other, between the proposed development and residential development of the application land that might be expected if the proposed development was prevented by a refusal of the application. The applicant said that, if the application failed, the land could remain in educational use and that the development that was proposed would be a significant improvement on this from the point of view of those entitled to the benefit of the restrictions. There is, however, nothing to indicate how likely it is that the educational use would be reactivated in these circumstances. In any event, it was said, the development had been approved by the local planning authority having regard to its impact on adjacent property and it would in itself have no adverse effect on the objectors. The objectors for their part were concerned that, on either comparison, the proposed development would have adverse effects upon them in terms of the loss of openness, traffic, noise and the character of the area. Mr Westlake said that, since the restrictions were part of a building scheme, with similar restrictions applying throughout the estate, the case against modification on ground (aa) was the stronger. 11

[30]The present development appears to be valued by objectors in terms of its openness and the fact that, when it was in use, the school was not operational at weekends, thus securing a degree of peacefulness. These were the factors emphasised by Mr Westlake, whose property abuts the application land. Our site inspection showed that apart from the original red-brick building in the centre of the land the existing buildings are of unattractive appearance, and they include the large brick and glass flat-roofed building on the south side of the land. Its frontage is equivalent to about four house-plots and its depth is the same as that of a standard plot. It is separated from 54 Hyland Way by only the width of the narrow footpath, and we have no doubt that it has a considerably adverse impact not only on that property but on other houses to the south. The north side of the application land contains a grey pre-fabricated single-storey building with a pitched roof which, though substantially smaller than that on the south side, is undeniably unsightly. The front of the site, behind the original iron railings on a low wall, is the tarmac area of the car-park, unattractive when empty and no doubt more so when full of cars. Next to this, and adjoining the garden of number 64, is an area of grass.

[31]The evidence of Mr McNeill contained a transport appraisal, which was the subject of detailed analysis by Mr Westlake. There is little to be conclusively derived from it for the purpose of comparing the educational use with the proposed development, but we accept Mr McNeill’s overall assessment that the development would be likely to result in fewer generated trips than those associated with the educational use.

[32]In comparing the existing use with the proposed development for the purpose of determining whether the restrictions secure practical benefits of substantial value or advantage to the objectors it is right to bear in mind that the educational use is not the object of the restrictions. From an objective standpoint it is hard to see that the proposed development would compare adversely with the existing use. Indeed it seems to us improbable that if the land were now vacant and it was proposed to develop it for educational purposes rather than for housing there would not be considerable local opposition. Nevertheless we recognise that the retention of what is familiar may well seem desirable to local residents, and we do not discount this. In the case of Mr Westlake the present situation, with an open grassed area adjoining his garden and (as was the case) the land unused at weekends, would be clearly better than the proposed development. On the other hand, we find it hard to believe that the replacement on the south side of the large brick and glass buildings would not be beneficial to those most nearly affected by it. Overall we cannot conclude that, to the extent that refusal of the application might result in a continuation of the existing use rather than the development of the land as proposed, this would in itself amount to a practical benefit of substantial value or advantage to the objectors or to any of them. It is moreover to be borne in mind that there are no restrictions on the way in which the application land could be developed with buildings or used for educational purposes, so that any benefit derived from the present arrangements (for instance the area of grass adjoining number 64) or the recent use (no activity at weekends) could be lost at any time.

[33]The more important comparison to be made is that between the proposed development and such residential development as might be expected if the restrictions were not discharged or modified. Mr Westlake suggested that, instead of the proposed development of 44 semi- detached houses, with 10 of the houses fronting Hyland Way and the rest served by a cul-de- sac from Hyland Way, the land could be developed with 12 semi-detached houses on Hyland 12 Way and 9 detached houses served off Rockingham Avenue. As a development this would not accord with the layout restrictions, other than on Hyland Way, but it is, we accept, the sort of development that might be carried out if the restrictions were not discharged or modified so as to enable the proposed development to take place. A comparison between the two schemes is thus of assistance, as Mr Westlake suggests, in judging whether the restrictions secure benefits of substantial value or advantage to the objectors. The principal differences would lie in the general level of activity, with perhaps twice as many people living on the land, the separation between the existing Hyland Avenue houses and the new houses closest to them and the new road that would be needed for the denser development.

[34]As Mr Westlake pointed out, the restrictions, which were imposed in similar form throughout the estate, have resulted in houses separated at the rear by substantial lengths of garden and the growth of trees and shrubs, producing what he called an oasis of green. It is clear, in our view, that the proposed development would be in marked contrast to this. The report of the planning officer recommending that approval should be given to the development referred to the council’s supplementary planning guidance for amenity space and affordable housing, and he noted that garden depths within the proposed development fell short of the recommended length of 15m, although he concluded that the proposal would provide an acceptable living environment. In relation to number 64 (Mr Westlake’s house) the report said that there would be no material overlooking as the nearest dwellings complied with the minimum 30m back-to-back distance. (We think in fact that it would only just comply.) Mr Newton relied on these conclusions in support of his view that the development would not cause harm to any of the residents directly affected. There is, however, in our view a clear distinction to be drawn between development that may simply achieve the basic level of acceptability in planning terms and development that would accord with the standard of amenity that the restrictions were designed to achieve. We have no doubt that the proposed development would, as compared with the kind of residential development that might be carried out if the restrictions were not discharged or modified, have an adverse effect for this reason, and because of the greater activity on a denser development and the access to it from Hyland Way, on those with the benefit of the restriction living nearby. The present case provides an illustration of why, contrary to Mr Harper’s submission, planning controls are not in these sorts of circumstances an adequate substitute for the protection afforded by restrictive covenants.

[35]The evidence of Mr Newman was that the value of the existing houses would not be reduced, and we accept this. That, however, was on the basis of a comparison between the existing situation and the one that would exist after the proposed development had been carried out. We have no valuation evidence referable to a comparison between the alternative residential schemes. In the case of Mr Westlake, a low density residential development would, we think, be an improvement on the present situation, but the proposed development would be significantly worse. While we think that the benefit to most objectors of being able to prevent the permitted development is not of substantial value or advantage, having regard to the two comparisons made above, we consider that the benefit is of substantial advantage to Mr Westlake. For this reason we would not have held that ground (aa) was made out had it been necessary to decide the application on that basis. 13 Ground (c)

[36]As with ground (aa) it is in the circumstances unnecessary for us to determine whether ground (c) is made out, but for the reasons given above in relation to ground (aa) we would not have concluded that there would be no injury to those entitled to the benefit of the restrictions from their discharge or modification. Compensation and discretion

[37]We are discharging in part some of the restrictions on ground (a) – that they should be deemed to be obsolete. In most cases where restrictions are discharged on ground (a) it will be because they do not continue to confer any advantage on those who are entitled to the benefit of them. That is not the position, as we have found it, here. To the extent that the restrictions are now obsolete they have been rendered obsolete by the carrying out of development that made the intended layout − semi-detached houses fronting straight roads − no longer capable of achievement. That development was itself in breach of covenant because it consisted of detached houses arranged round cul-de-sacs of irregular shape. Those with the benefit of the covenant acquiesced in these breaches, understandably, because they no doubt considered that they would not be adversely affected by a low density, high quality development of this sort. That development did not, however, render the restrictions of no continuing effect. They continued to prevent development that did not comply with them. That, of course, is why the present application was necessary. In preventing development such as that now proposed the restrictions continued to confer a practical benefit on those entitled to enforce the covenant, and we have concluded that, for the house most closely affected by the development, that benefit is of substantial advantage. In these circumstances it is appropriate for us to consider whether compensation should be awarded to those who would suffer a disadvantage through the partial discharge of the restrictions (cf Re Kennet Properties’ Application

(1998) 72 P & CR 353

, where in not dissimilar circumstances the Tribunal (Judge Rich QC) awarded compensation).

[38]We have said that we consider that the restrictions confer a benefit of substantial advantage on Mr Westlake, and we are satisfied that it would be just to require the payment to him of consideration in the sum of £7,500 if the restrictions are to be discharged to the extent that they are obsolete. In the case of Mr and Mrs Bacon, while we think that they would be adversely affected by the increased activity associated with a higher density development with access immediately opposite to them, our view is that the outlook from their house would generally be significantly improved by the construction of the proposed houses in Hyland Way and that it would not be materially different from what is proposed if development complying with the restrictions were to be carried out. We do not think that any award of compensation is appropriate in their case, and the same goes for the other objectors. The adverse effect on the estate as a whole would be extremely limited, and this decision, based as it is on ground (a) would constitute no sort of a precedent for the modification or discharge of similar restrictions affecting other land in the estate. We see no reason why we should not in the exercise of our discretion discharge the restrictions to the extent that we have found them to be obsolete. 14 Determination

[39]We refuse to discharge or modify the restriction contained in paragraph 2 of Part 1 of the First Schedule because it is not obsolete and because it would not impede the development for which planning permission has been obtained (see paragraph 13 above). The restrictions contained in paragraphs 2, 3 and 4 of Part 2 of the First Schedule to the conveyance will be discharged, except that the restrictions in paragraph 1 that no buildings shall be erected other than private dwellinghouses with suitable outbuildings and in paragraph 4 that no house shall be built or adapted for or let out in separate tenements shall continue to apply and, in relation to any plot abutting Hyland Avenue, the following restrictions shall continue to apply:(i) No buildings shall be erected other than private dwellinghouses in semi- detached pairs only;

(ii) Each such house shall be erected fronting Hyland Way;

(iii) No dwellinghouse shall be erected on any plot having a plot frontage of less than twenty-eight feet to Hyland Way;

(iv) No building shall be erected or brought forward on any plot nearer to Hyland Way than seventeen feet. The sum of £7,500 must be paid to Mr Westlake by way of consideration for this partial discharge of the restrictions before the order giving effect to this decision is made.

[40]The parties are now invited to make submissions on costs, and a letter dealing with this accompanies this decision, and the decision will not become final until the question of costs has been disposed of. Dated 6 October 2006 George Bartlett QC, President N J Rose FRICS 15 Addendum on Costs

[41]We have received written submissions on costs from the applicant and two objectors. The applicant suggested that there should be no order on costs. It said that, whilst the objectors did not act unreasonably, there was no justification for awarding costs in their favour.

[42]The two objectors, Mr Bacon and Mr Westlake, provided details of the time they spent preparing for the hearing and the amount of time they took off work in order to attend at the Tribunal. Both said that, as laymen, they were unsure of the appropriate procedure in such cases, but they would be happy to leave any decision on costs to the Tribunal’s discretion.

[43]The approach adopted by the Tribunal when considering the costs of an application to discharge or modify a restrictive covenant was described in the Tribunal’s Practice Direction dated 11 May 2006 as follows:

“... subject to any offer to settle that either party may have made), an unsuccessful objector who had the benefit of the covenant which has been discharged or modified will not normally have to pay any part of the applicant’s costs unless he has acted unreasonably, and a successful objector will normally get all his costs unless he has in some respect been unreasonable.”

[44]In our judgment Mr Bacon is not entitled to an award of costs. Although the restrictions in question were not discharged in their entirety, for all practical purposes Mr Bacon’s objection failed. Mr Westlake, on the other hand, was successful, in that he was awarded a significant sum in compensation which he would not have received had he not pursued his objection. He is entitled to his costs.

[45]In the circumstances of this case we consider it would be appropriate to settle the amount of costs by fixing a lump sum. The applicant must pay Mr Westlake’s costs of £1,500. Dated 1 November 2006 George Bartlett QC, President N J Rose FRICS 16