Zenios & Anor, Re Ingram Avenue [2010] UKUT 260 (LC)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE
UT Neutral citation number: [2010] UKUT 260 (LC)Venue LAW OF PROPERTY ACT 1925, BY, JONATHAN DAVID ZENIOS, and, TOMARA ZENIOS, Re: 25 Ingram Avenue, London NW11, Before: The President, Sitting at 43-45 Bedford Square, London WC1B 3AS, Christiaan Zwart instructed by R A Rosen & Co for the applicant, Tom Weekes instructed by Lee Bolton Monier-Williams for the objector, Hampstead Garden Suburb Trust Ltd, The following cases are referred to in this decision:, Re Kalsi (1993) 66 P & CR 313, Re Martin (1988) 57 P & CR 119, Re Willis (1997) 76 P & CR 97, The following further cases were referred to in argument:, Driscoll v Church Commissioners for England [1957] 1 QB 330, Re Ghey and Galton [1957] 2 QB 560, Shephard v Turner [2006] 2 EGLR 73, Gilbert v Spoor [1982] 3 WLR 183, Dobbin v Redpath [2007] 4 All ER 465, Re Snaith and Dolding (1995) 71 P & CR 104, McMorris v Brown [1999] 1 AC 142, Meridian Global Funds Management Asia Ltd v Securities Commission [1985] 1 WLR 413, Stone & Rolls Ltd v Moore [2009] 3 WLR 455, R v Basildon District Council, ex p Martin Grant Homes Ltd (1986) 53 P & CR 397, South Lakeland District Council v Secretary of State for the Environment [1992] 2 WLR 204, R v Ashford District Council, ex p Shepway District Council [1999] PLCR 12, Carter Commercial Developments Ltd (in Administration) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 1994, Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, Tomkins v Tomkins [1948] 1 P 170, Re Love (1993) 67 P & CR 101, 7 Strathray Gardens Ltd v Pointstar Shipping & Finance Ltd [2004] EWCA Civ 1669, DECISION, Introduction
Between
Zenios & Anor, Re Ingram Avenue
Date 28 April 2010
[1]The applicants in this case, the owners of a substantial house in Hampstead Garden Suburb, seek the modification of restrictions under section 84(1) of the Law of Property Act to enable them to construct a first-floor extension over the garage of the house. The restriction – not, without the consent of the Hampstead Garden Suburb Trust, to make any alteration to the external appearance of any building for the time being standing on the property – is contained in a transfer of the freehold interest in the property dated 9 March 1979 and also in a Scheme of Management, extending to all enfranchised property in Hampstead Garden Suburb, made under the Leasehold Enfranchisement Act 1967. Modification is sought on grounds (aa) and (c). The objectors are the Hampstead Garden Suburb Trust Limited, which has the benefit of the restriction under the transfer and the scheme.[2]I carried out an accompanied view of the Suburb, including Ingram Avenue, the road in which the subject property stands immediately before the hearing, and I heard evidence from four witnesses: for the applicants, Christopher Pask MA, Dip Arch (Cantab), RIBA, a partner in the Charlton Brown Partnership of Hampstead, and Michael Burroughs BA, MRTPI, of Michael Burroughs Associates of Hampton Hill, Middlesex; and, for the trust, Paul Velluet RIBA, IHBC, chartered Architect, and Jane Marion Blackburn, the Secretary of the Trust. Mr Pask and Mr Velluet gave evidence on architectural matters, Mr Burroughs on town planning matters and Mrs Blackburn on factual matters relating to the Trust and the exercise of its functions. In addition there were unchallenged witness statements from the owners of the subject property, Jonathan David Zenios and Tamara Zenios. Further information was provided in writing on 21 may 2010. The factual statements in this decision are derived from the evidence, the documents produced and my site inspection.[3]It is to be noted that another application, almost contemporaneous with the present one, to modify restrictions affecting another house in Ingram Avenue has recently been decided by the Tribunal (Judge Reid QC), Re Vertical Properties Ltd , LP/4/2007, 1 March 2010. That application was made in order to enable a development very different from the one to which the present application relates, the replacement of one house with two new houses on two of the original Ingram Avenue plots, one of which contained the existing house and the other of which had been used as garden land and had remained undeveloped. Neither party suggested that the Vertical Properties decision had any decisive bearing on the considerations that arise in the present case, and I do not think that it has, although certain observations of the judge on the nature of the area and the scheme of management are of relevance. Hampstead Garden Suburb and Ingram Avenue[4]Hampstead Garden Suburb is an estate in north London of about 800 acres containing over 5000 properties. It was developed, mostly between 1907 and 1938, through the vehicle of the Hampstead Garden Suburb Trust Ltd, a predecessor of the present body, on the basis of a formal plan, initially prepared by Barry Parker and Sir Raymond Unwin, with Sir Edwin Lutyens as consultant and designer of part of the area, and then carried on by J C S Soutar. Soutar was the Trust architect, in succession to Unwin, from 1915 to 1951. The Suburb represents the implementation of the social and architectural concept of its founder, Dame Henrietta Barnett. One of the guiding principles was that the interests of individual property owners should be subservient to the interests of the wider community. Sir Nikolaus Pevsner described the Suburb as “The aesthetically most satisfactory and socially most successful of all C20 garden Suburbs” (The Buildings of England: London 4: North, 1951).[5]Hampstead Garden Suburb Trust Limited is a company limited by guarantee incorporated (under the name New Hampstead Garden Suburb Trust Limited) in 1968 following the coming into force of Part 1 of the Leasehold Reform Act 1967. It succeeded to interests that had earlier been held by a company of the same name that had been responsible for the development of the Suburb from 1907 onwards but had gone into liquidation in the 1960s. Its principal object is to maintain and preserve the character and amenities of the Suburb.[6]Under section 19(1) of the 1967 Act application could be made to the High Court for approval of a scheme of management in an area occupied under tenancies held from one landlord where the Minister of Housing and Local Government had given his certificate that “in order to maintain adequate standards of appearance and amenity and regulate redevelopment in the area in the event of the tenants acquiring the landlord’s interest in their house...it is in the general interest that the landlord should retain powers of management in respect of the house...” And under subsection (3) the Minister in considering whether to grant a certificate and the High Court in considering whether to approve a scheme were required to have regard “primarily to the benefit likely to result from the scheme to the area as a whole...and the extent to which it is reasonable to impose, for the benefit of the area, obligations on tenants so acquiring their freeholds; but regard may also be had to the past development and present character of the area and to architectural or historical considerations, to neighbouring areas and to the circumstances generally.”[7]On 7 July 1970 the Minister granted a certificate that “for the purpose of ensuring the maintenance and preservation” of the Suburb the Trust should have in respect of enfranchised properties powers of management under a scheme of management. An order of the High Court of 17 January 1974, amended by an order of 17 February 1983, approved the scheme.[8]Ingram Avenue lies within an area that was added to the original Suburb after acquisition by the Trust in 1930/31. It was previously part of Turner’s Wood and was laid out by Soutar, cutting through the woodland and with trees being retained within the large plots that were developed, each with generous front and rear gardens. A substantial proportion of the houses back onto Turner’s Wood (on the south side) or Hampstead Golf Course (on the north). The style of the houses is for the most part neo-Georgian and many of them, including number 25, were designed by Soutar. Only one (number 16) is statutorily listed. The houses are substantial and of two-storey construction, although many have rooms with dormer windows in the roof space. With a few exceptions each house fills a high proportion of the width of its plot. The great majority of the houses have flat-roofed garages to the side, set back behind the frontages of the principal buildings, and over these there are views of the trees and bushes in the rear gardens and beyond. In two instances, numbers 11 and 17, a first floor has been constructed above the garage. The restriction[9]The transfer of 9 March 1979 was made between the Trust and Ashdale Land and Property Ltd (as beneficial owner) and the purchaser York Schmetzer. Ashdale was at that time the owner of substantial freeholds in the Suburb, but it no longer is. The transfer includes the following restrictions:
“ (3) Without the consent of Ashdale or the Trust which consent shall not be unreasonably withheld: (a) No garden or yard or forecourt of the property shall be built upon nor shall the general appearance thereof be substantially altered nor any garden substantially paved over (b) No alteration shall be made to the external appearance of any building for the time being standing on the property (c) No boundary or other walls or fences shall be erected on any part of the property nor shall any trees or hedges growing thereon be cut down or destroyed or removed.”
It is restriction (b) in respect of which modification is now sought.[10]The scheme contains the following restrictions in a schedule:
“1. Without the prior written consent of the Trust no garden or yard or forecourt of an enfranchised property shall be built upon nor shall be substantially altered nor any garden substantially paved over. 2. Without the consent as aforesaid no alteration shall be made to the external appearance of any building for the time being standing on an enfranchised property.”
And paragraph 10(B) provides that such consent shall not be unreasonably withheld. It is restriction 2 in respect of which modification is sought. The proposal[11]The application seeks modification of the restriction so as to permit an alteration to the building in accordance with the plans incorporated in the planning permission granted by Barnet London Borough Council under reference F/04646/09 on 25 February 2010, renewing a permission granted on 22 February 2007. The alteration would consist of the construction of a first floor above the existing garage attached to the side of the house. The rooms would be contained within a roof hipped on all sides, so that there would be no communication with the main part of the house at first floor level. The permission describes the development as “roof extension to include skylight and dormer window over existing garage to provide additional bedroom and bathroom and additional dormer to side”. In his witness statement Mr Zenios said that the proposal was for the accommodation of a children’s playroom, but nothing turns on this difference. The issues[12]The application seeks modification of the restrictions on grounds (aa) and (c) in section 84(1). Ground (c) applies where the Tribunal is satisfied that the modification will not injure the persons entitled to the benefit of the restriction. Ground (aa) applies “in a case falling within subsection (1A)” if the continued existence of the restriction would impede some reasonable user of the land for private purposes. The Trust accepts that the proposed development would constitute a reasonable user of the land, and thus the question that arises on ground (aa) is whether the case falls within subsection (1A). It will do so if the Tribunal “is satisfied that that the restriction in impeding that user...does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the...modification.”[13]The case for the Trust is that that the restriction secures to it, as the body with the function of protecting the character and amenities of the area, a practical benefit of substantial advantage in enabling it to prevent the proposed extension. The extension, it is said, would be out of keeping with the design of the principal part of the house and with that of houses in the area; it would significantly reduce views of trees and bushes in the rear gardens and beyond; and it would constitute a precedent for other such extensions in the vicinity which collectively would have a severely adverse effect. For these reasons ground (aa), it is said, is not made out. Alternatively, Mr Tom Weekes for the Trust argues, even if the benefit secured is not of substantial advantage, the Trust would nevertheless suffer some disadvantage through the modification: money would not be an adequate compensation for this disadvantage, since the interest of the Trust is in protecting the interests of the neighbourhood; and accordingly the second requirement under subsection (1A) will not have been established. Moreover the disadvantage that the Trust would suffer would also constitute injury for the purposes of ground (c), which consequently would not have been made out.[14]The case for the applicants is that the proposal is not inappropriate in design terms. The view of the trees behind number 25 would be diminished but not destroyed. Mr Christiaan Zwart for the applicants submitted that in any event the Trust was incapable of enjoying the view since, as he put it, it did not have eyeballs, and thus the restriction in preventing the development did not secure to it any practical advantage. The council’s grants of planning permission, made independently and in the public interest, demonstrated that the proposal was acceptable. It was not the effect of section 84(1A) properly construed that ground (aa) could never be made out if money would not provide adequate compensation. The development would not constitute the thin end of the wedge, and the Trust’s contention that it would do so was only advanced tardily and had not featured in its objections to the planning application.[15]The issues that arise appear to me in the light of these contentions to be as follows:(a) Is the restriction, by enabling the Trust to prevent development that it considers to be visually harmful to the Suburb, capable of constituting a practical benefit of substantial advantage to it for the purposes of ground (aa)?(b) If the restriction secures a benefit of advantage, but not of substantial advantage, does the fact that money would not constitute adequate compensation for the Trust mean that ground (aa) is not made out?(c) What weight should be given to the decision of the council to grant planning permission, on the one hand, and the views of the trust, on the other?(d) Would the proposed extension be out of character with the building and the area?(e) Would the extension significantly diminish the views of the trees to the rear?(f) Would the development constitute a precedent for similar developments in the locality, and does the Trust’s power to prevent it constitute for this reason a practical benefit of substantial advantage?(g) Is the consequence of these answers that ground (aa) is not made out?(h) Would the modification injure the Trust, so that ground (c) is not made out?(i) If the consequence of the answers to the above questions is that either ground (aa) or ground (c) or each of them is made out, should the restriction be modified in the exercise of the tribunal’s discretion? The interest of the Trust and the operation of ground (aa)[16]The purpose of the restriction imposed by the transfer and under the scheme of management is, it seems clear, to ensure the preservation of the amenities of the Suburb. On this basis, if I were to conclude that the development permitted by the modification would have no adverse effect on the amenities of the Suburb, either in itself or because of any consequences that might flow from it, ground (c) would, in my view, have been made out; while if the conclusion was that there would be adverse effects but that these would not be substantial the first requirement of subsection (1A) would have been made out. This is the approach that has been adopted by the Tribunal when considering applications under section 84(1) where it is an estate body that has the benefit of the restriction and holds it in the general interest: see eg Re Kalsi (1993) 66 P & CR 313 and, in relation to subsection (1A), Vertical Properties . If the amenities would not be harmed, the Trust would not be injured by the modification; while if there would be adverse effects but not substantial ones it would not be a practical benefit of substantial advantage to the Trust to be able to prevent them. On the other hand Mr Zwart’s contention that because, as he put it, the Trust does not have eyeballs, its power to prevent unsightly development can never be of advantage to it is manifestly untenable.[17]On ground (aa) Mr Weekes submitted that the disadvantage that the Trust would suffer through a modification that would enable development harmful to the appearance of the Suburb to be carried out was in its role as custodian of the public interest seeking to avoid such harm to the amenities. Even if this disadvantage was not substantial, money would not be an adequate compensation for it, and thus ground (aa) would not have been established since it only applied if the Tribunal was satisfied “that money [would] be adequate compensation for the loss or disadvantage (if any)” which any person entitled to the benefit would suffer from the modification. He relied on the Court of Appeal decision in Re Martin (1988) 57 P & CR 119, where the restriction was secured by an agreement under section 37 of the Town and Country Planning Act 1962 (the equivalent provision to that in sections 52 and 106 respectively of the successor Acts of 1971 and 1990) and the objector (the respondent in the Court of Appeal) was the local planning authority. At 126 Fox LJ said:
“The member said that money would not be an adequate compensation to the corporation for the discharge of the covenant. I think that must be right. If the covenant is of value to the corporation for the protection of the public interest in the preservation of the amenities, it is difficult to see how a money payment could be adequate compensation. Money compensation seems wholly inappropriate.”
[18]It is to be noted that in its objection as originally made the Trust did claim compensation, but this claim was later withdrawn. It is also to be noted that the contention that Mr Weekes now advances was not advanced on behalf of the Trust in the recent Vertical Properties case, in which the application was successful on ground (aa). Nevertheless if the argument is sound these are not reasons why it should not succeed.[19]Mr Zwart said that the Trust did not qualify for the description of “guardian of the public interest” (whereas Barnet Council, as local planning authority did). The description had been applied in decisions under section 84 only to creatures of statute that had express powers derived directly from statute. The Trust derived its powers privately or by the instrument of the scheme. The position of the Trust meant no more than that its views must be accorded weight in determining whether ground (aa) was made out, and he relied on Vertical Properties as a demonstration of this approach, referring to paragraph 170, where

Judge Reid QC said:

“The fact that the Scheme restrictions have been imposed as part of a section 19 Scheme is an important factor. It does not mean that a modification is impossible, but it does require the Tribunal can look at a broader picture. It is unlikely that the Tribunal will frequently exercise its jurisdiction where the managers entrusted with the management of the scheme will not permit a relaxation of a covenant, but it has to be borne in mind that the purpose of this Scheme is for ‘ensuring the maintenance and preservation of the character and amenities of the Hampstead Garden Suburb’. If the proposed modification is not going to affect the character or amenities and the applicants have satisfied the Tribunal that all the criteria required by section 84 of the 1925 Act have been satisfied, it is difficult to see why, the necessary criteria having been met, the Tribunal should refuse to exercise its discretion to allow the modification.”
[20]The effect of Re Martin was considered in the decision of the Lands Tribunal (P H Clarke FRICS) in Re Willis (1997) 76 P & CR 97, which concerned a restriction imposed in a right to buy conveyance under the Housing Act 1980 of a house on an estate owned by the council. At 114 the Member said:
“In my view, a distinction is drawn in section 84 between a discharge or modification which causes loss or disadvantage, where compensation may be ordered, and one which causes no loss or disadvantage, where compensation will not be ordered. Where an objector holds the benefit of the restriction as custodian of the public interest and will suffer some insubstantial loss or disadvantage from the discharge or modification, then the application will fail because money per se cannot be an adequate compensation. But where the objector is custodian and will not suffer any loss or disadvantage from the discharge or modification, then the question of compensation does not arise at all and the absence of compensation will not be fatal to the application.”
[21]It appears from the decisions referred to that, with the exception of Vertical Properties , in which Re Martin was not relied on, applications to discharge or modify restriction on ground (aa) have only succeeded against an objecting public body where the conclusion has been that that the body would suffer no disadvantage through the discharge or modification. It may be necessary for an applicant to rely on ground (aa) in such circumstances (rather than simply on ground (c)) where there are private objectors who would suffer a compensatable disadvantage. It is a shortcoming of section 84 that a restriction can only be discharged or modified if at least one of the grounds is made out in relation to all those entitled to the benefit. It is not sufficient that one ground is made out in relation to one objector and another ground is made out in relation to another.[22]Mr Zwart submitted that the provision as to compensation in subsection (1A) was directory and not mandatory. There was no requirement to award compensation where a restriction was modified on ground (aa), and this had been recognised in a number of decisions, including Vertical Properties . The function of the wording about compensation in subsection (1A) could be seen by reference to the provision in subsection (1) enabling the Tribunal to award “a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification”. The function was to provide for an antecedent step in the decision-making process, so that the Tribunal could know whether a “sum” under subsection (1) could arise. In any event, Mr Zwart said, the trust was not a “custodian of the public interest” because it was not a creature of statute. It was a company limited by guarantee.[23]In my judgment Mr Weekes’s submission is correct, and the conclusion of the Court of Appeal Re Martin in the passage I have quoted (which Mr Zwart accepts is binding authority for the proposition that it includes) applies here. The Trust’s interest is that of custodian of the public interest. It was given its management powers under the scheme because the Minister was satisfied that this was necessary “for the purpose of ensuring the maintenance and preservation” of the Suburb. The fact that the Trust is not a creature of statute is nothing to the point. It is because of the nature of its interest, in maintaining and preserving the Suburb, that money would not provide compensation for any disadvantage caused by the modification. If, therefore, the modification sought would have some adverse effect on the amenities that the Trust has the function of protecting ground (aa) will not have been made out. Barnet London Borough Council and the Trust[24]In 1984 Hampstead Garden Suburb was designated a conservation area, and the council as local planning authority has made an Article 4 direction, the effect of which is to give the council control over almost all external works to properties in the Suburb and new building works. In 1994 the Trust and the council produced joint Design Guidance giving advice on any building works, alterations to existing properties and works to trees that might be proposed in the Suburb. It stated that the Trust and the Council would judge any application in the light of the guidance that it gave. The section of the document headed “Extensions” says:
“Extensions will permanently alter the appearance and character of a property. The low overall density of development on the Suburb means that in many cases some extensions can be allowed without harm to the individual house or its neighbourhood. Rear ground floor extensions may be acceptable, but the impact on neighbouring properties will be carefully assessed. Front extensions are most unlikely to prove acceptable. Side extensions may close up the gaps between properties, creating continuous ‘terracing’ which destroys the open character of the layout and the carefully designed views between buildings.”
[25]The document then set out six points, which, it said, the Trust and the Council would consider when assessing whether to accept a proposed extension. Of particular relevance to the present case is point 4:
“Will the extensions be visible from the road or another public viewpoint and, in particular, will they encroach upon spaces between buildings, closing out distant views? In general, any extensions should be to the rear of the property. We normally resist extensions that would intrude upon well established views, for example two-storey side extensions or extensions above existing garages.”
[26]Then this was said:
“These points serve as guidelines, but it should be borne in mind that all proposals are assessed on their individual merits and that there may be cases where extensions are considered unacceptable, even though they may appear to conform with these guidelines.”
[27]In February 2010 a Character Appraisal for the conservation area was produced for public consultation by the council together with a revised Design Guidance, agreed by the Trust and the Council. The policy quoted above, normally to resist side extensions that would intrude upon well established views “for example two-storey side extensions or extensions above existing garages”, is included in the new guidance. Neither party contended, however, that the new guidance added anything significant to the existing guidance, and, in any event, since it is still at the consultation stage, the weight to be attached to it is limited.[28]Because of the Article 4 direction planning permission was required for the proposed extension. Since the property is within a conservation area, in determining the application for the extension the council were required under section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to “pay special attention…to the desirability of preserving or enhancing the character of that area”. The council has a conservation officer and a Hampstead Garden Suburb consultation area advisory committee (CAAC) to advise it. The 1994 Design Guidance states that the Guidance is consistent with the council’s development plan policies and has the status of supplementary planning guidance and that, having benefited from the council resolution and a public consultation exercise, it has enhanced status and due weight will be accorded to it as a material consideration in the determination of development proposals.[29]Mr Pask on behalf of Mr and Mrs Zenios made a number of planning applications for alterations to 25 Ingram Avenue. On 8 December 2005 planning permission was granted for “Single storey side extension, new front porch, alterations to windows at first and second floor levels, including insertion of new dormer window on front elevation. Alterations to remaining dormer windows. Excavation of new basement swimming pool in rear garden.” The officer’s report recorded the CAAC as having said, “The front side extension unbalances the front elevation.” But the officer commented that the extension had been set back 1.5 m from the front building line of the house “and is considered to represent a suitably subordinate addition”. A further planning permission for an amended proposal was granted on 16 March 2006. The amendment did not affect the side extension.[30]A further amendment to the 2005 planning permission for “Single storey front extension to existing garage” was granted planning permission on 6 September 2006. The application had described the development as “Increase in size of garage by 2.8 m to create front garage wall flush with existing consented utility room.” The officer’s report recorded that the CAAC had commented, “Move front wall back by 1.4 m on both the utility and the garage”; and that the council’s Conservation and Design section had made the following comments:
“Concerns that moving the garage closer to the front building line will impact negatively on the host building and street scene The garage is wider than others in the street and therefore will be much more prominent being set back by only 1.5 m whereas the existing garage is set back by 4.3m A side window on the ground floor of no. 23 may also be affected Recommend that the garage is only set forward by 1.4 m (IE half the distance between its current position and the proposed position). It would thus be set back by 2.9 m from the building line.”
The report noted that the application had been amended to reduce the depth of the garage extension from 2.8 m to 1.4 m and said:
“Whilst the garage will project 1.4 m further forward, the overall line of the garage and utility room will be 2.9 m set back from the front building line of the house. The proposed extension is therefore considered to be subordinate to the original house.”
[31]Application was then made for a two-storey extension. Acting under delegated powers (as for the previous decisions) a planning officer on 19 April 2007 granted planning permission for “Roof extension to include skylight and dormer window over existing garage to provide additional bedroom and bathroom and additional dormer to side.” His report recorded that the CAAC had commented that “…the scheme conflicts with all guidance on 2 storey extensions.” It does not appear that the Conservation and Design section were consulted on the application. The officer said that the proposed roof would be partly hidden by the parapet wall, which was to be increased in height by 60 cm or 8 brick courses. He concluded:
“Even though no first floor has been added to other properties, it is not considered that in the form proposed, it would detrimentally impact on the character of the house or the conservation area.”
[32]There was a 3-year time limit on the permission, and on 18 January 2010 Mr Pask submitted an application to renew it on a form headed “Application for a new planning permission in order to extend the time limit for implementation”. It gave as “Details of pre-application advice received” from the local planning authority about the application, “Renewal of existing consent should be entirely routine.” The CAAC advice record sheet simply had entered on it “No objection”. Planning permission was granted on 1 March 2010.[33]For the applicants Mr Zwart and his witness Mr Burroughs placed reliance on the history of the planning applications in two respects. The first point was a narrow one. They said that the CAAC advice on the 2010 application showed that it had reversed the view that it had earlier expressed on the 2007 application that “the scheme conflicts with all guidance on 2 storey extensions”. I am quite unable to accept this. The 2010 application was made to renew an earlier permission that was just about to expire, and an officer had said that renewal ought to be entirely routine. It is in my view improbable that the “No objection” reflected an unexplained reversal of the trenchantly expressed advice of 2007 rather than a recognition that the application was for the renewal of an extant permission in respect of which no new material considerations arose.[34]The second point is a wider one. It was said that it was the council rather than the Trust that had the statutory responsibility to protect the public interest; that the council had the responsibility for larger matters, the Trust for smaller details; and that it was wrong for the Trust, as it was put, to use its powers under the Scheme of Management to frustrate a legitimate planning decision. I do not accept this point either. To the extent that the suggestion was that consent had been unreasonably refused in this case (and Mr Zwart said that this was the applicants’ contention), I see no justification for the view that the grant of planning permission should in effect be determinative of the Trust’s discretion. Nor is there any reason why, as a matter of principle, when an application like the present one falls to be determined the decision of the council should be treated as decisive. I agree with the view expressed by Judge Reid QC in Vertical Properties at paragraph 106 that the Scheme, having been approved by the High Court after the grant by the Minister of a certificate that it is “in the general interest” should carry more weight than a building scheme. It is certainly the case that the degree of control that exists under the scheme and the transfer is more detailed and more finely-grained than that which exists, or could exist, under the planning regime. And it seems to me also that the expertise available to the Trustees, and their intimate knowledge of the Suburb, as described by Mrs Blackburn, must give considerable weight to any conclusion that they reach on a proposal of the sort that is now under consideration.[35]Of course the grant of planning permission will be a matter of significance, but it will never be conclusive. The Tribunal is required under subsection (1B) of section 84 to take into account the development plan and any ascertainable pattern for the grant or refusal of planning permissions in the area, but it is not suggested that there is such a pattern relating to developments of this sort; nor, if there were, would it be determinative of the outcome of the application. Moreover if the facts show that a decision of the council that is relied upon has been reached in the absence of, or contrary to, expert advice, the significance to be attached to it will necessarily be much reduced. In the present case, planning permission having been granted for a single storey extension after the application had been the subject of adverse comment by both the CAAC and the Conservation and Design section, the 2007 application for a two-storey extension was approved in the absence, it appears, of any advice from the conservation officers or any consultation with the Trust and after the CAAC had said that the scheme conflicted with all guidance on two-storey extensions. These facts reveal a deficiency in the planning process, and they do in my view serve to emphasise the important role played by the Trust in exercising its powers under the Scheme to control development in the Suburb. The effect of the extension[36]In this section I consider the effect of the extension in the terms of the two aspects that the architectural evidence has been directed towards – the effect on the appearance and character of the house and the area and the diminution of the views to the rear.[37]Mr Velluet, a chartered architect with extensive experience in the fields of building and area conservation and new development within historic areas, said that his professional opinion had been sought by the Trust in connection with the proposed extension to number 25 and the Trust’s decision to withhold consent. He had been asked to give an opinion as to whether the covenants affecting the property secured to the Trust advantages and benefits and were worth defending in the particular circumstances of the case. He said that he held firmly to the view that the successful preservation or enhancement of areas of special architectural or historic interest required not only the positive and creative involvement of the local planning authority but also the effective and collaborative participation of individual and corporate property and estate owners. In his view the pre-eminence of the Suburb in architectural and conservation terms had been successfully sustained over the years by intelligent application of control by the Trust. That success had depended as much on effective control over modest changes as on control over substantial changes. Looking at other estates and areas of 20 th century housing in the suburbs, it was frequently the cumulative effect of minor alterations that had had greater adverse impact on their integrity than a limited number of more significant changes.[38]The particular character of Ingram Avenue, Mr Velluet said, was not only shaped by the prevailing neo-Georgian architectural character of the individual houses but also by the generous spacing of the properties that allowed views to be gained, through the spaces between the individual houses and above the garages, of the trees in the open green areas beyond the houses and the gardens to the rear – Hampstead Golf Club to the north and east and the remaining part of Turner’s Wood to the south and west. This feature reflected a fundamental objective of the creators of the Garden Suburb.[39]Mr Velluet said that he considered that the scale, proportion and design of the proposed extension, in addition to seriously compromising the view through to the trees on the land to the rear of the property, would seriously challenge the important pre-eminence of the existing house when viewed from the street and the ancillary and subordinate character of the single-storey garage to the side. The proportional relationships between the proposed roof and the upwardly extended brick base and between the proposed roof and existing roof on the original part of the house would be most unsatisfactory.[40]Mr Pask said that the proposal was expressly designed to harmonise with his own redesign of the façade of the house. The garage elevation, and thus the roof profile, was set behind the line of the front elevation of the main building by 2.9 m in order to indicate and to retain the ancillary nature of the roof extension and the utility room below and maintain the subordinate nature of the extension. The tiled roof of the garage was set behind a single storey parapet of eight courses of brick, with a height of 600 mm, in order to signal its subordinate nature. The extended roof was made to appear recessive by creating the parapet as a visual horizon and setting back the start point of the extended roof itself by 700 mm at parapet level. The extended roof ridge was 1.8 m further back from the parapet and therefore appeared recessive. The materials of the roof extension and raised parapet matched those of the principal building. The result of these things was that a pedestrian from the pavement would see, in the foreground, the raised parapet and, in the background an extended building in keeping with its predominant neighbour. The extent to which views of greenery above the garage would be lost was very small indeed. Essentially the view was of a single oak tree, one of three for which in 2006 the Trust had granted approval to their reduction by 20%.[41]While I recognise the care and skill that Mr Pask has brought to bear in an effort to make acceptable in design terms the first floor extension that his clients wish to have, I prefer the assessment of Mr Velluet. That assessment accords with the strongly expressed view of the CAAC. It is clear that the design concept, applied to the great majority of the houses in Ingram Avenue, is that the garage, being single-storey and flat-roofed (and thus utilitarian in appearance, as Mr Pask put it) and set well back from the façade, should be seen only as a minor addition to the house, recessive and unobtrusive. Here the front of the garage has already been brought forward from its original position. The proposal to add a first floor, having a hipped roof set behind a parapet, with one of the gables being angled away from the house, would be contrary to the design concept both in terms of its physical features and the impact that these would have on the relationship of garage and house.[42]I accept that the degree to which views of greenery to the rear of the house would be reduced is small. The principal feature to be seen is the large oak tree and this can be seen above the roof of the house itself as well as through the garage gap. However, the raising of the garage roof would in my view inevitably reduce the sense of openness, and it would compound the purely architectural effect of the extension in making the garage less subordinate to the house. The contribution that the house makes to the character of the area would in consequence be adversely affected. These are essentially the effects about which the Design Guidance is concerned and which underlie the policy that such extensions should normally be resisted. In my view the Trust was justified in concluding that the proposal would be contrary to the policy and should not be granted consent. Precedent[43]The Trust was concerned that if the present proposal were to be permitted it would constitute a precedent for similar extensions to other houses in Ingram Avenue, making it more likely that these would be permitted and resulting cumulatively in a substantial adverse change to the appearance and character of this part of the Suburb. For the applicants Mr Burroughs and Mr Zwart contended that each proposal fell to be considered on its own merits; that this proposal was acceptable in itself; and that there was no prospect in any event of similar proposals for other houses.[44]I do not accept the applicants’ contentions in this respect. It is an important purpose of the controls exercised by the Trust to prevent creeping incrementalism. It is unrealistic to suppose that successive developments of this sort can be permitted, on the basis that each in itself does little harm, up to the point at which one further development would significantly affect the character of the area, with an embargo being imposed from then on. The reasons for this are obvious. Each such development creates pressure to reach a similar decision on the next application (in equity, because it would seem unfair to treat two comparable applications differently; and judgementally, because a similar development will previously have been judged to be acceptable). It is moreover wholly improbable that there could be some identifiable threshold up to which development could be seen to be acceptable and beyond which further development could be seen to be unacceptable. Instead there would be the risk that cumulative developments would gradually erode the character of the area to the point at which the erosion itself was seen to reduce the justification for refusing further applications.[45]Mr Burroughs expressed the view that there was little prospect of similar applications being made in respect of other houses in Ingram Avenue. Mrs Blackburn strongly disagreed since the value of additional floorspace was very high so that there was in consequence an incentive to extend. Applications for similar developments had not so far been made, she thought, because it was known that the Trust, applying the policy, would refuse them. If the present proposal was permitted through modification of the restriction, she had little doubt that further applications would be made, and she instanced two houses in Ingram Avenue, currently in the hands of a developer, for which such proposals could well be made. On this issue I prefer the views of Mrs Blackburn, who impressed me with her knowledge of the suburb and the evident integrity and balance that she brought to her assessments. Conclusions[46]The applicants have not satisfied me that the restriction, in impeding the proposed development, does not secure to the Trust a practical benefit of substantial advantage. On the contrary I accept the Trust’s contentions that the development would be harmful to the character of the area and would constitute an undesirable precedent for future applications, and in both these respects the power to prevent it constitutes in my judgment a practical benefit of substantial advantage to the Trust. Ground (aa) is therefore not made out. Had I concluded that the advantage was not substantial, ground (aa) would, in my judgment, still not have been made out because money would not constitute an adequate compensation for the disadvantage. Nor have the applicants shown that the Trust would not be injured by the modification sought. They would be injured, for the same reasons as those that apply to ground (aa). Ground (c) is therefore not made out. It follows that the application must be refused.[47]The parties are now invited to make submissions on costs, and a letter dealing with this accompanies this decision, which will become final when the question of costs has been determined. Dated 26 July 2010 George Bartlett QC, President

Cited in 1 later judgment