LP/49/2005

UPPER TRIBUNAL
LANDS CHAMBER
LP/49/2005Case No LP/49/2005
Before
N J Rose FRICSRichard Colbey for Applicantinstructed under the Direct Public Access to the Bar Scheme for ApplicantChristopher Lewsley (instructed by Royds, solicitors) for ObjectorVenue Procession House, 110 New Bridge Street, London EC4V 6JLDate 6 October 2006Hearing 5 July 2006Property: 95/97 Ravensbourne Avenue, Shortlands, Bromley, BR2 0AUCatchwords: RESTRICTIVE COVENANT – modification – dwellinghouse – restriction limiting development on plot to one dwellinghouse or bungalow – retrospective application to amend to permit two detached houses – only compensation in issue – compensation of £10,000 awarded, reduced to nil if condition regarding backfilling satisfied.
[1]This is an application by Traditional and Contemporary Contracts Limited (“the applicant”) under section 84(1) of the Law of Property Act 1925, seeking the retrospective modification of a restrictive covenant affecting freehold land, formerly containing a single dwellinghouse known as 95/97 Ravensbourne Avenue, Shortlands, Bromley, BR2 0AU (“the application property”) so as to permit the construction of two houses. The objectors, Mr P Winter and Mrs J Winter of 99 Ravensbourne Avenue, were unaware that they were entitled to the benefit of the covenant until September or October 2004, by which time the main structure of the two new houses had been effectively completed. Although the objectors are concerned about the effects of the new buildings on their amenities, they accept that it would be unrealistic to expect the Courts to order their demolition. Thus, the issue before the Tribunal is the amount of the consideration, if any, which should be paid to the objectors under section 84(1)(i).[2]The restriction in question was imposed by a conveyance of the application property dated 16 July 1923 between(1) John Cator (Vendor),(2) The Right Honourable Ailwyn Edward Baron Ailwyn and others (Trustees),(3) The Prudential Assurance Company Limited (Mortgagees) and(4) Sarah Elizabeth Pillin (Purchaser). The conveyance contained among others the following covenant by the purchaser:
“The Purchaser hereby for himself and his assigns covenants with the Vendor and so that the covenant shall so far as practicable be enforceable by the owner or owners for the time being of the property now comprised in the Cator Estate at Beckenham or any part or parts thereof that the Purchaser his heirs and assigns will at all times hereafter observe and perform the stipulations and regulations which are contained in the Third Schedule hereto.”
[3]Paragraph 3 of the Third Schedule provided that:
“No building shall be erected upon the piece of ground hereby conveyed other than a dwellinghouse or a bungalow of a value of not less than one thousand pounds which shall be erected in accordance with plans and elevations to be first submitted to and approved by the Surveyor aforesaid at the purchaser’s expense. Until the said house or bungalow shall be erected on the said piece of ground it shall be kept in a clean and tidy condition to the satisfaction of the Surveyor aforesaid and shall be used for no other purpose than as a private garden or pleasure ground only.”
The Surveyor referred to in paragraph 3 was defined in paragraph 1 as “the Surveyor for the time being of the Vendor or other the owner for the time being of the Cator Estate at Beckenham”. 3[4]On 18 August 2003 planning permission was granted for the demolition of the existing dwelling and the erection of two detached four bedroom two storey dwellings, each with a room in the roof space and with a total of four car parking spaces. The applicant now seeks the modification of the covenant on grounds (a) and (aa) of section 84(1) of the Act, so as to permit the construction of two detached houses on the site. It is agreed that Mr and Mrs Winter are entitled to the benefit of the restriction.[5]Mr Richard Colbey of counsel appeared on behalf of the applicant. He called one witness of fact, Mr L Simner, a director of the applicant and one expert witness, Mr P L Coling FRICS, the technical director of Messrs Haywards, surveyors and valuers of Bromley. Counsel for the objectors, Mr Christopher Lewsley, called Mr Winter as a factual witness and expert evidence from Mr D P Connolly FRICS, FCIArb, MEWI, a sole practitioner in West Wickham.[6]On the afternoon of 12 July 2006 I inspected the application property, the objectors’ property and the surrounding area accompanied by representatives of the parties. Facts[7]In the light of the evidence I find the following facts. The application property fronts on to the south-western side of Ravensbourne Avenue, two doors south-east of the curved junction with Downs Hill. From the Ordnance Survey plan produced at the hearing I calculate that the length of the frontage is approximately 65 feet. The depth of the site varies between some 145 feet and 160 feet. The property is in a popular residential location, within short walking distance of Ravensbourne railway station, with direct links to Victoria and Blackfriars. It is conveniently located for Bromley town centre. The immediate area contains a variety of Victorian, Edwardian, inter-war and modern housing, comprising bungalows, detached, semi- detached and terraced houses.[8]Until recently, the applicant’s property contained a single detached house, arranged on two storeys and with a net internal area of approximately 206m2. The site sloped upwards from street level towards the rear and the front of the house was approximately 5 feet above pavement level. To the front of the house was a single garage and a carport capable of receiving two cars. Otherwise, the front garden contained a variety of bushes and shrubs. There was a large rear garden, containing a large amount of vegetation.[9]The two detached houses which have recently been erected on the application property have been designed in a similar style to the Edwardian houses on the opposite side of the road. That style is different from the immediately adjoining properties, Nos 93 and 99. The new houses are effectively arranged on three storeys and, in order to retain some consistency with the surrounding properties, the sloping site has been excavated at the front. The ground floors of the new houses are now at pavement level and the height to the tops of their ridges is not much greater than to the tops of the adjoining houses. The floor areas of the new houses, however, (212m2 and 179m2 net internal for 97 and 95 respectively) are significantly larger than those of 93 and 99. 4[10]The objectors’ property, No.99, is one of a pair of two storey semi-detached houses erected in the 1930s. It has a net internal area of approximately 80m2. Like the original house on the application property, it is approximately 5 feet above pavement level. It has a garage and an attractive rear garden.[11]The applicant purchased the freehold interest in the application property in June 2003. It was aware at the time of the existence of the restrictive covenant. In early 2003 it approached Cator Estate (Beckenham) Limited (“CBEL”) and was advised that that company was willing to waive the restriction. Subsequently, by a deed dated 10 November 2004, in consideration of the sum of £1,600, CBEL varied the covenants “to the intent that (so far as concerns the lands forming part of the Cator Estate at Beckenham and in its ownership and to the extent that the Cator Estate is so able) they shall henceforce be read and construed as if nothing therein contained prevented the Development.”[12]By the time the deed was executed the development had effectively been completed. CBEL is, in fact, a Croydon based private limited company, which was incorporated on 31 January 1991 in the name of Sorcove Services Limited, and which is listed at Companies House as being dormant. The applicant made no attempt to ascertain whether any other party had the benefit of the restriction.[13]The proposed construction of the new 95 would have interfered with the natural light enjoyed by 93 Ravensbourne Avenue. Consequently, the owner of 93 instituted proceedings in the High Court. These were eventually compromised in February 2005, the applicant having agreed to redesign the new building at 95 so that it would be significantly smaller than at first proposed. Following discussions with the objectors, the applicant applied to this Tribunal for modification of the restriction on 21 June 2005.

(a) - Obsoleteness

[14]It is agreed that, if the relevant restriction is obsolete, the objectors are not entitled to any compensation. I therefore firstly consider paragraph (a).[15]The applicant’s case is that the character of Ravensbourne Avenue has changed from what was envisaged in 1923, namely that it would be a street of large houses on large plots. By way of example, the applicant points to the objectors’ own house, 99, which is subject to the following, rather different restriction in favour of the Cator Estate, first imposed in a conveyance dated 29 March 1934:
“No building shall be erected on the land hereby conveyed or any part thereof other than detached or semi-detached houses (with suitable garages and outbuildings) each house to cost in building not less than six hundred pounds exclusive of the value of the land and each of such houses shall be erected in such position and in accordance with such plans and elevations as shall first be submitted to and approved at the 5 Purchaser’s expense by the Surveyor aforesaid and in particular each detached house shall be erected on a plot having a frontage to the said road of not less than thirty eight feet and each pair of semi-detached houses shall be erected on a plot having a frontage to such road of not less than seventy five feet.”
The applicant says that the immediate area now contains a mixture of detached and semi- detached houses and some terraced property. The restriction therefore no longer serves a useful purpose in maintaining the character of the street.[16]The objectors’ case is that the covenant was imposed in order to protect the amenities of all the owners of property on the Cator Estate. So far as the immediately adjoining properties are concerned – and in particular 99 – the changes which have taken place since 1923 have made the covenant more important, necessary and beneficial.[17]Neither expert expressed a firm opinion as to the size or specification of house or bungalow which would have had a value of £1,000 in 1923. What is clear, however, is that the covenantee wished to restrict development on the application property, with its frontage of some 65 feet, to a single residential unit, arranged on one or more storeys. (It is to be observed that the restriction would not have prevented the erection on the plot of one of a pair of semi- detached houses). Many houses in Ravensbourne Avenue have been built on plots with frontages significantly less than 65 feet. There are, however, a number of houses in the area which comply with the original criteria. The frontage of 81 Ravensbourne Avenue is approximately 75 feet. That plot contains a double-fronted, semi-detached house on two storeys. Numbers 101, 103, 105, 107, 109 and 111 Ravensbourne Avenue each have frontages which I calculate to be between 60 feet and 80 feet and each contains a detached bungalow. Thus, there are still at least eight properties in this section of Ravensbourne Avenue which have been constructed in a manner consistent with the restriction imposed in 1923. Against that background, I do not take the view that the undoubted changes in the character of the neighbourhood have been such as to render the restriction obsolete. Compensation[18]There was no suggestion that, at the time it was imposed, the restriction had any effect in reducing the consideration then received for the application property. The objectors’ claim was restricted to paragraph (i), namely a sum to make up for any loss or disadvantage suffered by the objectors in consequence of the modification of the covenant.[19]The objectors say that the retrospective modification of the restriction adversely affects their amenities. They no longer enjoy the benefit of a 60 feet tall Scots pine tree, formerly within their ownership at the front of their house. It was felled at the applicant’s expense in order to prevent damage to the flank wall of the new house, 97, which was to be sited one metre from the boundary with 99; the original house was two metres from the boundary. The outlook from the front drive of 99 towards 97 and the new paved parking area in front of it is less attractive than the view of saplings which the objectors previously enjoyed as they walked up their front driveway. Moreover, the original house at 95/97 was partly concealed by a privet hedge. The house was long and low and painted white. The objectors were barely 6 conscious of its presence. Its rear elevation was 3.6m in front of the rear elevation of 99. Consequently, when the objectors went into their rear garden and looked directly towards the left, they simply saw saplings; the adjoining house was some distance behind them. The rear elevation of 97 is now 5.1m further back that it was before. This means that the view towards 97 on entering the rear garden of 99 is now one of an overpowering brick wall. It also means that the rear garden of 99 is overlooked by 97 much more than it was by the original house, particularly from the window at second floor (or roof) level. The objectors make good use of their garden for gardening, relaxing beneath an attractive pear tree and from time to time playing games with their grandchildren.[20]The freehold value of the objectors’ house is agreed to be £375,000. Mr Connolly considered that the effect of the modification would be to reduce this figure by £5,000 or £10,000, depending respectively on whether the valuation is to be made after the two new houses have been completed or before works started. Nevertheless, the objectors say that reduction in value is not the appropriate measure of their loss. They say that it is open to the Tribunal to assess their loss of amenity by reference to the price which would have been arrived at in negotiations between the parties for release of the restriction, if they had negotiated reasonably before work started on the new houses. They rely, among other authorities, on the decision of this Tribunal (V G Wellings QC, President) in Re Fisher and Gimsom (Builders) Limited’s Application (1992) 65 P&CR 312. Mr Connolly suggested that, on this basis, compensation would have been agreed at £50,000 plus costs. Alternatively, if the objectors had negotiated an amendment to the design of 97 to make it less imposing, they would have agreed a figure in the region of £25,000 plus costs.[21]Although the applicant accepts that, in S J C Construction Co Limited v Sutton LBC (1975) 29 P&CR 322, the Court of Appeal held that this Tribunal had power to award compensation reflecting what the covenantor would have paid as a result of friendly negotiations, it submits that that is not the appropriate basis for assessing the objectors’ loss. It relies on the Tribunal’s decision (George Bartlett QC, President) in Re Skupinski’s Application (LP/34/2003, unreported).[22]The applicant denies that the modification would result in any loss or disadvantage to the objectors. It says that it could have demolished the former house and erected a single detached property in exactly the same location as the new 97, and the objectors would have had to accept it. In these circumstances, the fact that another house, 95, has also been built on the far side of the plot, where it cannot be seen from 99, is irrelevant.[23]Mr Coling considered that, given the changes in the area which had occurred since 1923, the objectors did not derive any benefit from the restriction and had not suffered any diminution in the value of their property. 7 Conclusions[24]I consider firstly certain authorities dealing with the appropriate approach to the loss suffered by the objectors.[25]In Re Fairclough Homes Ltd’s Application (LP/30/2001, unreported), cited with approval by Carnwath LJ in Shepherd and Others v Turner and Another [2006] 20 EG 294, the President, George Bartlett QC, considered the argument that is being put forward by the applicant in this case, namely that any loss suffered by the objectors as a result of the proposed modification might equally have been suffered as the result of a different form of development which would not have breached the restrictions. The President said: “... how the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without breaching the restriction and comparing it with what the proposed modification is intended to permit... In such a case as this, the provision, it seems to me, operates in this way. By preventing development that would have an adverse effect on the persons entitled to its benefit, the restriction may be said to secure practical benefits to them but if other developments having adverse effects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage. Whether they are of substantial value or advantage is likely to depend on the degree of probability of such other development being carried out and how bad, in comparison to the appellant’s scheme, the effects of that development would be.” (Paras 29-30).[26]The objectors claim compensation on the basis of the consideration they say they would have received if they had been approached by the applicant before construction of the two new houses had commenced. The appropriateness of this approach was considered by the President in Skupinski. He reviewed earlier judgments by the Court of Appeal and concluded: “On the basis of this authority I have no doubt that it would be open to me to assess compensation by reference to the increase in value that the playroom has given to Mrs Skupinski’s land if I were to conclude that Mrs Hignett would suffer loss or disadvantage by reason of the modification of the covenant. Since, however, Mrs Hignett’s entitlement to enforce the covenant derives from the covenant’s ability to protect her land rather than from any reservation to her of the power to extract a share of the development value of the applicant’s land, I would for my part seek if possible to assess compensation for any ‘loss or disadvantage’ she has suffered by reference to the effect on her enjoyment of her own land rather to the applicant’s gain. Of course the assessment of compensation for loss of amenity, where such loss is not, or is not wholly, reflected in a reduction in the value of the land, must inevitably be extremely judgmental, but I would not regard the applicant’s gain as a useful determinant of the objector’s loss.” (Para 22). I respectfully adopt the President’s approach in Fairclough Homes and Skupinski to the award of compensation in this case. 8[27]The first question, therefore, is what alternative forms of development, not involving a breach of the restriction, might reasonably have been anticipated on the application land? The second question – which is unlikely to be answered by considering the extent of the applicant’s potential profit – is what loss or disadvantage has actually been suffered by the objectors? In his expert report on behalf of the objectors, Mr Connolly expressed the view that development of the application land would only be viable if two houses could be erected on the site. Asked by me to comment on this opinion, Mr Coling replied that the location of the property was not sufficiently popular to justify demolishing the house and erecting one “super large house” for owner occupation. It was difficult to envisage a single house of the same size as the two new houses combined, but it was conceivable that it could happen. The original house was not particularly attractive. Somebody might have purchased it with a view to remodelling it substantially and extending it.[28]In the light of the evidence and my site inspection, I have come to the conclusion that the previous house on the application land would not have been demolished if the use of the site had been permanently restricted to one house. It is very possible that the house would have been refurbished and extended. Any such extension is likely to have been to the rear, but the northern flank wall would almost certainly have remained in its previous position, namely 2m from the objectors’ boundary. In view of the sloping nature of the site, the construction of a rear extension would have involved an element of excavation, albeit less than that which has been undertaken to the front of 95/97.[29]With these conclusions in mind, I turn to consider whether the matters which cause the objectors concern can be said to result from the modification of the restriction. Firstly, the fact that the flank wall of 97 is now closer to 99 than the previous wall is not, of itself, material. That Mr Winter now has a much clearer view of that wall from the rear garden of his property is the result, not of the position or height of the wall itself, but of the fact that trees and other vegetation within the application land, which formerly masked the wall, have been removed. As Mr Connolly fairly accepted, the vegetation which was previously on the application land could have been removed without breaching the restriction. In my view, it may well have been so removed at some stage. Moreover, the removal of the privet hedge at the front of 99 was a matter entirely within the objectors’ control and not dependent upon the erection of two houses on the adjoining plot. I do not consider, therefore, that the increased view of the flank wall from the rear garden of 99 – or indeed the view of the new parking area in front of 97 – are matters which result from the modification of the covenant. Nor is the temporary disturbance suffered by 99 while the two new houses were being constructed likely to have been very much greater than that which would have resulted from the construction of a large extension to the previous building.[30]Similar considerations apply to the removal of the large pine tree in the objectors’ front garden. Mr Winter said that, when representatives of the applicant asked him to agree to its removal in order to avoid damaging the proposed new house at 97 he was aware that, if he refused, the applicant would cut off a large number of the branches overhanging the application land. This would have resulted in the tree becoming dangerous as well as unsightly. He therefore felt that he had no alternative but to agree to the applicant’s request. I accept that evidence. Nevertheless, it seems to me that there is a real likelihood that the overhanging branches would at some stage have been lopped by the owner of the application property, even 9 if the former house had remained. Since the objectors are likely to have lost their tree even if the restriction had continued to be observed, its loss is not something for which they are entitled to be compensated.[31]I now turn to the objectors’ claim that their rear garden is currently overlooked much more than it was before. As I have found, there is a real possibility that, if the restriction had remained in place, the previous house on the application land would have been extended to the rear. If so, the rear elevation may well have been sited as far back as it is now, and possibly even further back. In addition, there may well have been a rear window in the roof of the extension; no photographs of the rear of the previous house were produced, but it is clear that the property had a small window to the front elevation at roof level. It follows that the objectors might well have suffered increased overlooking of their rear garden without any breach of the restriction occurring. They are therefore not entitled to be compensated on this account.[32]In addition to the effect of the proposed modification on their amenities – which I have found do not entitle them to compensation – the objectors are concerned that their property has been exposed to risk as a result of the manner in which the excavated area between 97 and the boundary fence with 99 has been back-filled. The background is as follows. A Party Wall Act surveyor was appointed to act in connection with the proposed construction of the two new houses on behalf of the objectors and Professor Jowitt, the owner of 93. After inspecting the site with the applicant’s surveyor, he started preparing a joint award specifying what, how and when works covered by the Act were to be undertaken. However, demolition of the old house and excavation of the site commenced on about 27 February 2004, before the party wall award had been published. The applicant’s surveyor, Mr Burry, prepared a draft method statement dated 15 March 2003. This was not issued as part of the formal award until 27 April 2003, by which time the work it referred to had been completed in a manner which did not comply with the statement. In particular, the contractors failed to observe minimum distances from excavation to adjoining boundaries and the specified backfill compacting procedures were not carried out at all. Because of the importance of these matters to the stability of the adjoining properties, Professor Jowitt’s consulting engineer suggested that concrete be used for backfill. In the event weak, permanently porous and water permeable no fines concrete was used as backfill at both sides of the site. Following discussions between the parties’ consulting structural engineers, the backfill on the boundary with 93 was strengthened by pressure cement grouting, but this procedure was not carried out to the backfill protecting the objectors’ property.[33]The construction of the two new houses on the application land has been carried out in breach of the restrictive covenant. It is most unlikely that the backfill problems would have arisen if the application property had continued to be restricted to one residential unit. Had the covenant been modified before the commencement of construction, there is no doubt that the compensation payable would have reflected the manner in which the works were proposed to be carried out. Now that the works have been carried out, it is appropriate for compensation to be assessed by reference to the loss or disadvantage which has in fact been suffered by the objectors. I am satisfied that the applicant’s failure to deal with the backfill close to 99 in the same way as was done close to 93 has been the cause of significant apprehension to the objectors. In my judgment, the sum which would be required to compensate for this concern is 10 £10,000. This sum shall be paid by the applicant, unless it provides the objectors with adequate assurance that the necessary strengthening works will be carried out.[34]Finally, and for the purpose of completeness, I should say that I accept Mr Coling’s evidence that the objectors’ house has not been reduced in value as a result of the erection of two houses on the application property.[35]I order that the applicant shall pay the objectors compensation totalling £10,000. This figure will be reduced to nil if, within 28 days of the date of this decision, the applicant shall have executed a deed, undertaking to carry out pressure cement grouting to the backfilled area on the boundary with 99 Ravensbourne Avenue within six months from the date of this decision, such work to be carried out to the reasonable satisfaction of the objectors’ consulting engineer, whose reasonable fees are to be borne by the applicant.[36]An order modifying the restrictions to permit the construction of the two houses presently on the application land will be made by the Tribunal provided, within three months of the date of this decision, the applicant shall have paid the appropriate sum to the objectors.[37]A letter on costs accompanies this decision, which will take effect when, but not until the question of costs is decided. Dated 1 August 2006 N J Rose FRICS 11 Addendum on Costs[38]I have received written submissions on costs from the parties.[39]The objectors seek their costs on the grounds that they have been successful. They point out that, by the time they became aware of the existence of the covenant, the construction works were well advanced. They did not seek demolition of the newly erected properties, but were concerned to obtain reasonable compensation for the modification. In their notice of objection dated 5 September 2005, they indicated that they would accept compensation of £5,000 plus their legal costs. This position was maintained up to the end of the hearing. In response, on 31 January 2006 the applicant made an offer, without prejudice save as to costs, of £1,600 plus costs.[40]The objectors say that their concerns about the need for carrying out works at the boundary of No.99 were set out in their notice of objection and in Mr Winter’s subsequent witness statement. They were successful on this point. They were also successful in resisting the applicant’s claim that the covenant was obsolete. They have obtained more than the sum at which they had offered to settle and there is no sufficient reason for departing from the usual rule that the successful party should receive its costs.[41]The applicant denies that the objectors have been successful. It says that, whilst the nominal award was £10,000, that is purely a fall-back position if the applicant does not comply with the alternative direction and, in reality, it will never be paid. They add that, on a true analysis, the objectors never really made an offer to settle for £5,000 plus costs. In any event, any such offer was withdrawn by the objectors’ letter of 27 January 2006, which required the payment of substantial irrecoverable costs (relating to the preliminary issue) in addition.[42]As to the merits of the offer of £5,000, the applicant says that work costing considerably less than £5,000 was ordered by the Tribunal. The applicant also points out that the objectors did not formally state that they were not opposing the proposed modification until the final hearing. Once the objectors had established their right to object, the applicant made a realistic offer. Although the method of grouting the backfill has not yet been agreed, the applicant submits that the cost of the work and the associated costs of the objectors’ engineer will not exceed the £1,600 offered and will not approach the amount sought by the objectors. Even without the offer of 31 January it would be hard for the objectors to argue that this minimal sum represents success.[43]The applicant suggests that, had it been told that the objectors would settle the case if the backfilling were carried out, it would have taken a pragmatic view and agreed. The thrust of the objectors’ own evidence was not directed to the matter, and it had not been referred to in correspondence at all.[44]Unlike in many cases, the objectors are not entitled to the sympathy of the Tribunal. They went to considerable lengths to become joined and were far from passive in the 12 proceedings. Their intervention has led to very substantial costs which are out of all proportion to the benefit obtained. The applicant submits that the objectors should be treated as having been unsuccessful and not receive any costs. Furthermore, the objectors should pay the applicant’s costs from 31 January 2006 or a short time thereafter, having behaved unreasonably in neither accepting the offer nor requesting backfilling as an alternative.[45]The approach to the award of costs in a contested section 84 case was considered by the President, George Bartlett QC, in Re Norfolk and Norwich University Hospital NHS Trust’s Application (LP/41/2001, unreported), in the following terms:
“In such proceedings the applicant is seeking to have removed or reduced rights which were conferred on the objector or his predecessors by force of contract. If an objector successfully resists such an application he will usually be awarded his costs. The converse, that a successful applicant should normally receive his costs, does not, however, apply. An unsuccessful objector may be ordered to pay part or all of the applicant’s costs; or there may be no order as to costs; or he may receive part or all of his costs where, although the covenant is ordered to be discharged or modified, compensation is awarded to him. Which of these courses is followed by the Tribunal will depend principally on the nature and degree of the applicant’s success and the conduct of the parties. In exercising its power to award costs the Tribunal will always bear in mind the nature of the proceedings, which must ordinarily put an objector in a more favourable position in relation to costs than the unsuccessful party in ordinary civil litigation.”
[46]In considering the conduct of the parties in the present case, the starting point in my judgment is that the applicant commenced work on the construction of two new houses in clear breach of the restriction and without making any attempt to ascertain whether any party other than CBEL had the benefit of the covenant. Against that background, the suggestion that the objectors should be penalised for pursuing their objection to a hearing, and for not agreeing to the modification of the restriction on payment of proper compensation until the day of the hearing, is without merit. The objectors were entitled to pursue their claim for compensation and they did so in a reasonable manner. Their argument that the restriction was not obsolete was vindicated. There is no force in the applicant’s contention that the amount of compensation that it offered, £1,600, exceeded the cost of the works that it was obliged to carry out by the order of the Tribunal. The applicant had not offered to carry out the works; and the compensation awarded by the Tribunal, in default of it carrying out the works, was £10,000. In my judgment there is no reason why the objectors should be deprived of their costs.[47]The applicant must pay the objectors’ costs, such costs in default of agreement to be assessed by the Registrar of the Lands Tribunal on the standard basis. For the avoidance of doubt, this order does not relate to costs incurred in connection with the preliminary issue. Dated 6 October 2006 N J Rose FRICS 13