Thistledew, 6a Nottingham Road, Re [2011] UKUT 69 (LC)

IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE
UT Neutral citation number: [2011] UKUT 69 (LC)Venue LAW OF PROPERTY ACT 1925, BY, PAUL MARSHALL, and, GILLIAN MARSHALL, Re: Thistledew, 6a Nottingham Road, Bottesford,, Nottingham NG13 0AP, Before: P R Francis FRICS, Sitting at: Nottingham Employment Tribunal, Byron House,, 2a Maid Marion Way, Nottingham NG1 6HS, on, The applicants in person, Robert Cox, solicitor, of Oldham Marsh Page Flavell, solicitors of Melton Mowbray, for the objectors, The following cases are referred to in this decision:, Shepherd v Turner [2006] 2 P & CR 28, Re Coles’s Application (2004) LT Ref: LP/2/2003 (Unreported), Wrotham Park Estate Co v Parkside Homes (1974) 1 WLR 798, Jaggard v Sawyer (1995) 1 WLR 269, Re Skupinsk’s Application [2005] RVR 269, Re Bass Limited’s Application (1973) 26 P & CR 156, DECISION, Introduction
Between
Thistledew, 6a Nottingham Road, Re
Date 19 January 2011
[1]The applicants, Paul and Gillian Marshall, are the freehold owners of 6a Nottingham Road, Bottesford, NG13 0AP (the application land – registered at the Land Registry No: 363921) which was transferred to them as a building plot on 19 March 2004 by Paul Anthony Skerritt and Joane Barbara Skerritt who then owned and occupied the adjacent property to the west, 8 Nottingham Road, Bottesford. Access to the application land, which was to be developed by the applicants to provide a detached dwelling-house for their own occupation, was reserved over a part of the transferors’ driveway (clause 2.1(a) of the transfer). The transfer required, at clause 5.5, that:
“5.5 Within six months of the date hereof to construct to the satisfaction of the Transferor a turning area on that part of the [transferred] Property shown hatched yellow and that part of the Transferors’ property hatched black [the original access to No. 8] on the plan annexed hereto such turning area to be surfaced in tarmacadam or otherwise materials to be approved by the Transferor.”
The transfer (at clause 3.1(b)) reserved for the benefit of the Transferors’ retained land:
“A right to pass and repass with or without vehicles over and along that part of the Property hatched yellow for the purpose of manoeuvring and turning vehicles to gain access and egress from the Transferors’ Retained Property.”
[2]Of the restrictive covenants set out at clause 5, the applicants seek the modification of that which at 5.2 reads: “5.2 Not to park on or otherwise obstruct that part of the Property shown hatched yellow or that part of the Transferors’ Retained Property hatched black” by reducing the size of the turning area on their own land in line with drawings provided and in accordance with the area as now physically defined on site by brick paviors set into a tarmacadam finish. This will provide the applicants with further parking than is currently available in the non-covenanted area, and to retain a detached double garage which has been constructed, in part, on the covenanted turning area. The applicants represented themselves at the hearing, produced witness statements, a substantial trial bundle of documents, and a brief statement of agreed facts.[3]The objectors are Mr Kevin Jones and Mrs Joanna Jones who purchased 8 Nottingham Road from Mr & Mrs Skerritt on 26 February 2008 after securing, as a pre-condition, a Deed of Variation (dated 6 February 2008 and made between the applicants and Mr & Mrs Skerritt) which modified restriction 5.2 to permit a motor vehicle to be parked “between points D and E on the plan” on the previously reserved area in front of the garage of No. 8. The objectors were represented at the hearing by their solicitor, Mr Robert Cox, who called Mrs Jones as a witness of fact and Mr Ian B Holdsworth MSc FRICS ACIArb of ICHS Ltd, Chartered Surveyors of Bottesford, who gave expert evidence.[4]I carried out an accompanied inspection of the application land on the afternoon of 18 January 2011. Applicants’ case[5]The applicants said that the previous owners of 8 Nottingham Road, Mr & Mrs Skerritt, obtained outline planning permission on 21 May 2003 for the construction of a detached two-storey dwelling on land that comprised part of the garden immediately to the east of their house. The consent contained a condition (no 8) that “car parking provision shall be made within the curtilage of each dwelling on the basis of 2 spaces for dwellings with up to three bedrooms, and 3 spaces for dwellings with four or more bedrooms.” Condition 12 stated “turning facilities shall be provided within the site in order to allow vehicles to enter and leave in a forward direction prior to the development first coming into use.” The land was then offered to the market with the benefit of that permission, and in their offer letter of 16 November 2003 to the selling agents, the applicants said: “As purchaser we agree to put in a turning point to both the new plot and number 8 Nottingham Road as per the guidelines outlined by Melton Mowbray Borough Council . We appreciate that Mr & Mrs Skerritt wish to put their home onto the market as soon as the work to the fence and drive are completed, therefore we would start the work as soon as the sale was completed in order to minimise any delay to them.” [My emphasis]. This was confirmed to their solicitor on 23 January 2004. It subsequently transpired that the details in that letter were never forwarded to the vendors. Following a discussion with the Skerritts in February 2004, a minor amendment was made to the proposed deed plan as it had been noted that part of the proposed turning area within No. 8 was over their existing garage. However, in other respects, the turning area remained as originally proposed, and as shown hatched yellow and black on the eventual deed plan[6]Mr & Mrs Marshall confirmed that, when they bought the land in March 2004, they were aware of the restrictive covenant relating to the turning area, together with the requirement to erect a new boundary fence between the two properties – this finishing level with the front of the Skerritt’s existing garage. The fence was duly erected but Mr Marshall said that he and his wife had agreed with Mr & Mrs Skerritt as part of the purchase negotiations that the turning area was “excessive” – hence the commitment to provide a turning area in accordance with the council’s requirements (which only required a much smaller turning space).[7]Soon after they completed the purchase, Mr Marshall said, they applied for full planning permission (to which there were no objections), and that was granted subject to similar conditions to the outline consent on 18 November 2004 under reference 04/00351/FUL. The landscape plan (which was also approved) showed the new, reduced, turning area (the “new turning area”) that was proposed A minor amendment to the landscape plan was approved by the council in May 2008 following the applicants’ purchase (in 2005) of a small additional triangle of land to the south-east corner of their front garden, principally to facilitate the construction of a two-feet high front boundary wall whilst providing the required vision splays. The approved plan, Mr Marshall said, provided some 28% more than the private drive turning facilities requirements as depicted on Leicestershire Highways, Transport and Development’s website. Due to the dispute that had occurred with the objectors soon after they had moved into No.8, Mr Marshall said he sent a further copy of the amended plan to the council showing the precise measurements of the proposed turning area. Confirmation that the proposal complied was received in an email dated 23 February 2009 from Mr Andrew Dudley, Melton Borough Council’s Planning Enforcement Officer who said:
“I have received confirmation from LCC Highways that the proposed amendments to the driveway and parking area at the front of your property are acceptable. These changes meet the provisions of conditions 7, 9 and 11 of planning permission 04/00351/FUL. Accordingly, no further action is necessary in this matter. This record has been placed on file.”
Mr Marshall said that the area of the original turning area was some 164 sq m which was appropriate for residential and industrial access roads, and was sufficient to provide a turning space for large refuse vehicles. The proposed new turning area was actually 73 sq m whereas the highways requirement for residential properties such as theirs was 56 sq m.[8]The applicants admitted that they had been, and still were, in breach of the restrictive covenant. As the finally approved location of the house was slightly further forward on the plot than had originally been envisaged, and a detached double garage had been constructed to the front (rather than an integral garage on the east side of the house that had initially been proposed) in part over the covenanted turning area, it meant that only one car could be parked without encroaching onto the original turning area. Thus, unless the proposed modification was granted, they would be unable to comply with the imposed planning conditions and would be accountable to Melton Borough Council. Mrs Marshall said that the council has still not “signed off” the new house and is awaiting the outcome of this application. The consequences could be considerable, as there was a risk that the council might force them to demolish part of their property in order to enable sufficient parking spaces to be provided.[9]There had been no problems regarding parking or turning prior to the objectors’ purchase of No. 8. Mrs Jones had been sent around to the applicants’ house in January 2008 by Mr & Mrs Skerritt and, Mrs Marshall said, Mrs Jones was shown exactly where the proposed turning area (which at that time had not been surfaced) was to be located. Following that visit, Mr & Mrs Skerritt requested the Deed of Variation as their purchasers wanted to be able to park their car immediately in front of the garage of No. 8. Mrs Marshall said that they readily agreed to it, and the document was drawn up accordingly. In cross-examination, Mrs Marshall said that they did not seek legal advice regarding the proposed variation, but simply instructed the solicitor who had dealt with their conveyancing to deal with it. She also accepted that they could have, but did not, use the request for the deed as an opportunity to negotiate the revisions to the turning area that they wanted. She said that they did not realise the importance of the restrictive covenant, or the implications of breaching it at that time. It was their view that revising the covenanted area would be a simple and straightforward task, and had not appreciated that the fact the proposed area according with planning requirements was irrelevant as far as the restriction was concerned.[10]It was only after the Jones’ purchased No 8, the applicants said, that the problems began. In May 2008 they were approached by the objectors and reminded of the extent of the turning area as depicted on the deed plan as it was apparent they were concerned about the level of parking on the applicants’ land. This was followed by letters from their solicitors. The applicants said that from that moment they made considerable efforts to agree a compromise with Mr & Mrs Jones, but they had been “adamant and unyielding”. It was not the case, Mr Marshall said, that the objectors were being offered a fait accompli . They had always been willing to find a mutually acceptable solution, and had even made offers to pay a small sum of compensation to the objectors together with their solicitor’s costs and any Land Registry fee that may be payable. The objectors had since paved the area in front of their house, so they now had three parking spaces. Mr Marshall said there was plenty of room for them to turn around within the confines of the new turning area, and their concerns were thus unfounded. The intention of a turning area was to allow access and egress to specific parking areas, and to allow vehicles to enter and leave them without having to reverse into the main road. The new turning area fulfils that criteria from each of the Jones’ parking spaces. In any event, he said, the Jones’s had purchased No. 8 in 2008 in the full knowledge of the proposed new turning area, and apart from the surfacing, everything to do with the applicants’ house was already in place. It was therefore unfair for the objectors to now be demanding that the Marshalls can no longer park on their own land[11]The applicants also provided an extensive chronology of events following the Jones’ purchase (the full extent of which I consider it unnecessary to record here), together with photographs upon which had been superimposed the precise siting of the new turning area, and the extent of the original turning area.[12]As to the specific grounds under which the application was made, under (aa), the applicants said that the reasonable use of their property was being impeded by the original turning area. With only one parking space available without encroaching onto that area, it was impossible to comply with the planning requirements. It was accepted that the garage was built partly over the covenanted area, but Mr Marshall pointed out that the objectors had specifically stated that they were not objecting to that fact. The garage would, he said, produce only one additional parking space so they could still not comply. In the applicants’ view, the original turning area does not provide the objectors with any more practical benefits of substantial value or advantage than are provided by the new turning area.[13]Although the applicants now understood the difference between planning requirements and restrictive covenants, Mr Marshall referred to Shepherd v Turner [2006] 2 P & CR 28 and said that the amendment to section 84 in 1969 states that whilst the grant of planning permission does not of itself deprive restrictive covenants of their efficacy, it is a consideration under ground (aa). Mr Marshall suggested that I should exercise the discretion that is afforded to me under the Act and referred to an earlier decision of mine – Re Coles’s Application (2004) LT Ref: LP/2/2003 (Unreported) where I said at para 49:
“49. I have to consider, ground (aa) being made out, whether I should exercise my discretion in the applicants’ favour. Relevant to this, in my view, is the fact that the applicants have carried out the extension works in breach of the covenant. While I accept that when these works were started they were not aware of this restriction, they were made aware of it and despite this they continued the works in open defiance of its terms. I have considered whether, in the light of this conduct, it would be appropriate for the Tribunal to refuse the relief that is sought. On balance, I do not think that it would be, in view of the very limited damage caused, and the fact that I find the evidence and correspondence produced at the hearing indicated that the objectors’ real concerns were to be compensated for the proposed modification, rather than to secure the removal of the extension.”
In the applicants’ view, the objectors were trying to extract a large sum of money as compensation for alleged losses that have not, in fact, occurred.[14]In respect of ground (b) the applicants said that Mr & Mrs Skerritt had never objected to the application for full planning permission for the house or garage (which in part was built on the covenanted turning area), nor to their parking anywhere in front of the property. As they had not objected to the new turning area it was Mr & Mrs Marshall’s view that by their acts or omissions, the original covenantees had either expressly or impliedly agreed to the modification as proposed. However, the applicants did accept during the hearing that the objectors have the benefit of the restriction, and I explained to them that the application under this ground must, therefore, fail.[15]On ground (c), the applicants said that granting the modification requested would not injure the persons entitled to the benefit. They are still able to enter their property, turn a vehicle around and leave in a forwards direction. There will be no affect upon the value of 8 Nottingham Road if the modification is granted, and the objectors will not suffer any loss.[16]In respect of the objectors’ experts report, Mr Marshall said that it was heavily biased towards Mr & Mrs Jones, and the figures sought for loss or disadvantage under the various heads were totally disproportionate. Objectors’ case[17]Mrs Jones, for the objectors, said that when she and her husband bought No. 8 in 2008, it was a pre-condition that the restrictive covenant should be modified to allow them to park directly in front of their garage. She said she was surprised that the applicants did not seek to deal with their problems over the covenanted area at that time. The main problem was that the restriction was, and is, blatantly breached by the Marshalls on a daily basis, as demonstrated by the portfolio of photographs that had been produced. The parking of a large number of cars on the area that should be used solely for turning and manoeuvring meant that they had difficulty in turning their vehicles around and had to make multi-point turns to be able to leave the drive in a forward direction. As a result of the restricted manoeuvring space, she said they had been compelled to surface their front garden area to provide additional parking and turning space, whereas it had been their original intention to make part of it a play area for their child.[18]As a result of the problems, Mrs Jones said they approached the applicants in May 2008, before any letters had been written, to remind them of the restrictive covenant and to try and resolve the situation. They made it clear that they had no objection to the applicants’ garage encroaching onto the restricted area and were happy for the covenant to be modified to that effect. They were also willing to negotiate a revision to the turning area that would help the applicants to alleviate their planning problems, but not to the extent that they were now applying for. She said the applicants resolutely refused to consider a compromise and all they were prepared to countenance was the area as now marked out. It was, therefore, a fait accompli. Whilst she accepted in that the applicants had come back with a suggested solution, in July 2008, Mrs Jones said they had been advised by their solicitor not to get into discussions as “it might create problems”. However, she said they had nevertheless suggested the appointment of a joint surveyor, but that proposal was not accepted. Mrs Jones said that the issue was simply that the marked area was not large enough to facilitate their turning needs. The applicants could have had significantly more parking than was currently available if they had located the new house in the position originally proposed. However, they amended the planning permission and built the house further forward. The situation that they now find themselves in was thus of their own making.[19]Mrs Jones said the original turning area provided them with sufficient manoeuvring space, and that was a benefit of substantial value and advantage. Their house had already been significantly devalued by the restricted turning area, and would be more so if the restriction were modified. Conversely, in Mrs Jones’ view, the value of the applicants’ property would be much enhanced by such a modification. A modification along the lines sought would also injure the beneficiaries of the covenant.[20]Mr Holdsworth is a Chartered Surveyor who practises locally, and who had been instructed to value the benefit of the restrictive covenant in its current form and to assess, under section 84(1)(c) of the Act, the compensation that should be payable for any loss or disadvantage the objectors would suffer as a result of the modification being granted as proposed. He said he had undertaken a measured survey of the relevant areas, which showed that about 2/3 of the applicants’ new garage was located on the restricted area. The new turning area as proposed (and as depicted on site now by the prick paviors), represents a reduction from the original covenanted area of some 75%.[21]Although he was unable to point to specific comparable examples, Mr Holdsworth, in considering the injurious affection that has been suffered by the objectors due to the breaches of the restriction, and will continue to be suffered if it was modified, applied spot figures to the various disadvantages that exist. Firstly, the increased difficulty in manoeuvring caused by the reduction in the turning area, and the applicants’ parking on restricted areas. This he assessed at £3,500. There was additional visual intrusion caused by all the vehicles parked on the applicants’ property for which he gave a figure of £7,500, and for additional noise from vehicles manoeuvring, £2,500. There should be an additional figure of £1,500 for disturbance caused by increased frequency of vehicle movements, together with £3,000 for loss of privacy due to the “closer presence” of the (Marshall’s) house and fence, although Mr Holdswaorth accepted that that situation prevailed when the Jones bought their property. There should then, he said, be added £3,000 for the loss of the use (for recreational purposes) of part of the Jones’ front garden, and £2,500 for the cost of paving it to provide additional parking. The sum of these individual items, which Mr Holdsworth accepted were purely arbitrary but reflected peoples’ perceptions, was £23,500.[22]As an alternative, compensation could, he said, be assessed to reflect the loss in the value of the objectors’ house if the modification had been granted, and the turning area had been substantially reduced, when they purchased the property. They paid £227,000 for it in February 2008, but this figure should be reduced by 10% - say £23,000 to £204,000 to reflect the modification.[23]To the figure arrived at on this basis (£23,500 claimed), Mr Holdsworth said it was then necessary to add compensation for the additional value that was attributable to the applicants’ property that the proposed modification would provide. He said he had particular regard to Wrotham Park Estate Co v Parkside Homes (1974) 1 WLR 798 and Jaggard v Sawyer (1995) 1 WLR 269 , both of which were also cited in Re Skupinski’s Application [2005] RVR269. He estimated the value of 4 additional parking spaces, the site for the garage and permission to locate the applicants’ house 2m further south at £25,000. This produced a total of £48,500 which Mr Holdsworth said in his view represented “the total value of the redistribution of rights arising from the proposed modification.” Conclusions[24]The application is argued under grounds (aa), (b) and (c) although, for the reasons given above (b) must fail, and I do not therefore deal with it further here. There are six questions that arise for determination under section 84(1)(aa) (see Re Bass Limited’s Application (1973) 26 P & CR 156): whether the restriction impedes some reasonable user of the land; if so, whether in so doing it secures to the objector any practical benefits; if so, whether those practical benefits are of substantial value or advantage to it; and, if not, whether money would be adequate compensation for any loss or disadvantage suffered; whether, if ground (aa) has been made out, I should exercise my discretion in favour of the modification; and, if so, how much if anything should I award as compensation.[25]There can be no doubt, in my judgment, that the continued existence of the restriction in its current form does impede the reasonable user of the applicants’ land. If they abide by the terms of the restriction, they have very limited parking available to them. There is (it was agreed) one space immediately in front of the house and there is also another in the gap between the front of the house and the garage. However, access to that one is extremely difficult and indeed virtually impossible if there is one car parked on the agreed space. It could also, in my view, restrict access to the front door. There is also, effectively, one space in the garage (which is itself built partially over the restricted turning area, so modification of the restriction is needed anyway), but I think that, in planning terms, parking within the garage would not constitute one space in terms of the conditions imposed.[26]Nevertheless, the fact remains that the reason the use is impeded is due directly, as the objectors argued, to the applicants’ own actions. They have built their house and garage in a position that was revised from the proposed location and layout against which the outline planning consent was obtained by Mr & Mrs Skerritt (and which was the situation when the applicants bought the plot). That repositioning has served to severely restrict the area available for parking to the extent that it is impossible to comply with the planning conditions without breaching the restrictive covenant.[27]I agree with the objectors’ arguments that the applicants have chosen to blatantly ignore the restriction, and am entirely satisfied that by laying out the new driveway with the new turning area marked out, and using their property as if that was the sole area of the restriction, the objectors have been severely disadvantaged and they have suffered the loss of an important practical benefit. It is clear from the photographic evidence that the applicants’ parking arrangements cause difficulties to the objectors manoeuvring capabilities and I accept their arguments in this regard. This conclusion was supported by my own attempts to effect a 3-point turn whilst remaining entirely within the turning area as now marked. If there is a car parked in front of the objectors’ garage (which they are now entitled to do following the Deed of Variation), it is virtually impossible to effect such a turn without encroaching onto the old (but still, of course, covenanted) area. Likewise, entering the applicants’ property forwards (and assuming both of the parking spaces they currently use to the south of their garage are occupied) it is again near enough impossible to turn in the newly designated area.[28]The ability to turn safely and easily (which would have been the purpose of the restriction) is a practical benefit of substantial advantage and, in monetary terms, must have value to the objectors. The circumstances here, although in terms similar to those in Re Coles’s Application referred to by the applicants, are significantly more damaging to the objectors, and the cavalier disregard of the restrictions has lead to Mr & Mrs Jones suffering considerable inconvenience. Although I have some reservations about Mr Holdsworth’s evidence, and particularly his seemingly entirely arbitrary approach to the compensation sought, I have no doubt that the situation that currently prevails over the access and turning area will have a material affect upon the open market value of the objectors’ property. However, as the application fails under ground (aa), for the reasons given here, the question of what compensation might be appropriate if I were to exercise my discretion under the Act does not arise. It follows from my conclusions on ground (aa) that the application must also fail under ground (c).[29]It was clear to me having read the papers relating to the case, having visited the property and having heard the evidence and arguments at the hearing, that this is a case where a compromise arrangement was clearly achievable. The parties, as they admit, have become entrenched to the extent that neither the applicants nor the objectors appear to be able to see the wood for the trees. The applicants have got themselves into a very difficult position with potentially serious consequences (in planning enforcement terms) and it seems to me that by their intransigence, they have missed the opportunity to negotiate a settlement that was plainly possible, and realistically achievable. Although I do think the objectors were being unrealistic in their expectations as to compensation, and could perhaps be accused of attempting to unfairly gain from the applicants’ difficulties, I do think in terms of what they have, to date, offered the objectors, the applicants were clearly trying to get something for virtually nothing.[30]I feel certain that this is a case where the appointment of an independent joint surveyor could reap considerable benefits and that there must, realistically, be an opportunity for the parties to be able to resolve the issues between them without the need for an amended application to be submitted to the Tribunal in a form that requires a further hearing. A larger turning area than the applicants seek, but smaller than the original restricted area is clearly a physical possibility. Although the applicants will have to restrict their parking somewhat, a compromise arrangement will give then what they require to comply with the terms of the relevant planning conditions.[31]This determines the issues before me, and the application fails. The parties are now invited to make submissions on costs; this decision will become final only when that issue has been resolved, and not before. DATED 18 February 2011 P R Francis FRICS

Cited in 1 later judgment