Wild & Anor, Re Golf Links Road [2012] UKUT 306 (LC)

IN THE MATTER OF AN APPLICATION UNDER

UT Neutral citation number: [2012] UKUT 306 (LC)

Venue SECTION 84 of the LAW OF PROPERTY ACT 1925, BY, BRIAN ROBERT WILD, PATRICIA JEAN WILD, Re: 9 Golf Links Road,, Prenton,, Birkenhead,, Wirral CH42 8LN, Before P R Francis FRICS, Sitting at Liverpool Employment Tribunal, Cunard Building, Pier Head, Liverpool L3 1TS, Sitting at:, Graham Sellers , instructed by Aaron & Partners LLP, solicitors of Chester for the applicants, Neil Cadwallader , instructed by Bermans LLP, solicitors of Liverpool, for the objectors, The following cases are referred to in this decision:, Re Bass Limited’s Application (1973) 26 P & CR 156, Gilbert v Spoor [1983] Ch 27, Re Jilla [2000] EGLR 99, Re North’s Application (1997) 75 P & CR 117, The following cases were also referred to in argument:, Re Marshall’s Application [2011] UKUT 69 (LC), Shephard v Turner [2006] 2 P & CR 28, Driscoll v Church Commissioners for England [1957] 1 QB 330, Re Martin’s Application (1988) 57 P & CR 119, Dobbin v Redpath [2007] EWCA Civ 570, Re Banks’ Application (1976) 33 P & CR 138, Re Vince’s Application (2007) LT Ref: LP/41/2006 (Unreported), Re Bushell’s Application (1987) 54 P & CR 386, Re Purnell’s Application (1987) 55 P & CR 133, Re Lee’s Application (1996) 72 P & CR 439, Re Cordwell’s Application (2008) 2 P & CR 26, Re Hayden [2010] UKUT 332 (LC), Re Collins’ Application (1974) 30 P & CR 527, Re Case’s Application (2008) LT Ref: LP/55/2006 (Unreported), Margerison v Bates [2008] EWHC 1211 (Ch), Re GPB Construction Ltd’s Application (2009) LT Ref: LP/56/2007 (Unreported), Re Fuller’s Theatre [1923] AC 435, DECISION, Introduction

Between

Wild & Anor, Re Golf Links Road

Date 21 June 2012

[1]This is an application by Brian and Jean Wild of 9 Golf Links Road, Prenton, Birkenhead, Wirral CH42 8LN (the application land) for the modification of a restrictive covenant in order to carry out extensive remodelling, extension and refurbishment works to their property in accordance with planning consent granted by Wirral Borough Council under reference APP/10/0450 on 18 June 2010. The objectors are Andrew and Brenda Robertson, owners and occupiers of the adjacent property, West Hill, 7 Golf Links Road, Wirral.

[2]The restriction is contained within in a conveyance dated 10 March 1959 made between Marion Emily Neil (Vendor) and Henry Joseph O’Neill (Purchaser) and the land is registered under title number CH36541. The covenant provides:

“2 The following are details are details of the covenants contained in a conveyance dated 10 March 1959 referred to in the Charges Register:- (a) …… (b) That no building shall be erected upon the said piece of land hereby conveyed except one private dwellinghouse or bungalow with the usual and necessary outbuildings and motor house to be used in connection with such private dwellinghouse or bungalow and such dwellinghouse or bungalow shall not be erected until the site and elevation thereof and the site of any outbuildings and motorhouse thereto shall have been approved by the vendor or her successors in title owners for the time being of the said adjoining premises known as Westhill Gold (sic) Links Road Prenton Birkenhead aforesaid or her or their Surveyor and every such building so erected shall be of such character and description and build according to such plans and designs AND elevations as shall have been similarly approved in writing before the same is commenced AND no such building shall after erection be altered without the like previous consent in writing And the purchaser or his successors in title will pay the free (sic) of the vendor’s Architect or Surveyor for examining and approving the plan and specification of such dwellinghouse.”

[emphasis added]

[3]Mr Graham Sellers of counsel appeared for the applicants and called Mr Brian Wild and Mrs Patricia Wild who both gave evidence of fact and Mr Trevor Irvin of Irvin Consultants, West Kirby, who gave expert architectural evidence. Mr Neil Cadwallader of counsel appeared for the objectors and called Mr Andrew Robertson who gave evidence of fact on behalf of himself and his wife, Mr Andrew Armstrong BA (Hons) Dip Arch RIBA of CLA (Condy Lofthouse Architects) of Liverpool who gave expert architectural evidence and Mr Philip Ewart Cassidy of Phil Cassidy, Property Consultant, West Kirby, who gave expert valuation evidence. Facts

[4]The parties produced a comprehensive statement of facts agreed and issues to be resolved dated 27 March 2012. From this, together with the application, the objectors’ statement of case in response, the witnesses’ statements of fact, the expert reports, my inspection of the application land and the objectors’ property on 18 June 2012 and the evidence, I find the following facts.

[5]The applicants are the joint registered proprietors of 9 Golf Links Road, having purchased it on 13 June 2008. It is a detached single-storey bungalow constructed in about 1959 towards the rear of its approximately half acre plot, which slopes gently upwards towards the rear from the road, and is approximately in line with the objectors’ house, West Hill, 7 Golf Links Road which is the adjacent property to the north-west and from which the application land was hived off in 1959. The principal aspect of West Hill is to the south-east directly facing the application land rather than, as with most other properties in the area, facing the road. The properties are located in a mature and attractive residential street that gives access to the Prenton Golf Club and are in the Mountwood Conservation Area on the southern outskirts of Birkenhead.

[6]The applicants’ bungalow currently contains hall, kitchen, lobby, two reception rooms, four bedrooms and two bathrooms. The principal bedroom and en-suite bathroom are located within a flat roofed extension which was subsequently added to the north-west (West Hill) side elevation. There is a detached garage to the rear, on the south-east side of the dwelling. In total, the property has a net internal area (NIA) of 176.2 sq m (1,897sq ft)]. The height of the existing bungalow is 2.42m from finished internal floor level to gutter (eaves) height, and the ridge height is 5.74m.

[7]The applicants propose to significantly extend and remodel the existing bungalow to create a two-storey house with a NIA of approximately 452.6 sq m (4,872 sq ft), or 487.2 sq m (5,244 sq ft) including first floor attic space and first floor void area. This is agreed at 2.76 times the size of the property as currently exists. Planning permission was obtained for this development on 18 June 2010 following a large number of revisions to the initial plans that had been prepared by Mr Irvin. It is agreed that the relevant plan is plan 11C and although some minor amendments to that plan have subsequently been approved (plan 11D), it is agreed that they are not material to the issue before the Tribunal, other than the removal of originally proposed doors from principal bedroom onto a balcony – now deleted. It was also agreed that the plan that accompanied the application was plan 11B, but some very minor amendments were made during the planning process, resulting in plan 11C being the one formally approved. The accommodation, which would extend over, and increase the original footprint, is proposed to comprise a full height galleried central entrance hall and landing with atrium style glazed roof, kitchen/breakfast room, utility room and 5 reception rooms at ground floor. There would also be a workshop incorporated within the existing garage structure and an additional attached garage. At first floor 5 bedrooms each with en-suite bath/shower rooms and two with dressing rooms are proposed together with a laundry room. The principal drawing room, with main bedroom suite above, would be on the north-west elevation, partially on the footprint of the existing main bedroom suite, but extending further rearwards. Its flank wall is intended to be in line with the existing and, therefore, the same distance from the boundary with West Hill (approximately 3 metres). The height at eaves/gutter levels varies and the new ridge height (running north-west to south-east with two same height projecting front gables) would be 8.27m.

[8]The applicants first approached the objectors with their initial proposals in July 2008 and following discussions and correspondence between the parties (reference to which is summarised below where relevant to the grounds upon which this application is made), various revisions were made, culminating in the application for planning consent in 2010, (plan 11B) and to which Mr and Mrs Robertson, who had inspected the details on the planning office website, and had attended a meeting with the planning officer, objected. Formal details of the proposals included within that application (as revised to plan 11C) were made available to the objectors by the applicants in July 2010, after planning consent had been received, and the Robertsons then instructed one of Mr Armstrong’s colleagues to provide them with informal advice in August 2010.

[9]Subsequently. the applicants, having come to the view that the objectors were unreasonably withholding consent and that there was no likelihood of any satisfactory compromise being reached, made the application to this Tribunal for modification under grounds (aa), (b) and (c) of section 84 of the Law of Property Act 1925 on 10 December 2010. The application under ground (b) was formally withdrawn on the last day of the hearing.

[10]The application (which also served as the applicants’ statement of case), stated at paragraph 11:

“The applicants seek to modify the restrictive covenant to provide that the consent in writing to the plans to seek alteration of the dwellinghouse and outbuildings and motorhouse “shall not be unreasonably withheld” and further that “the development of the land be permitted in accordance with the planning approval of 8 June 2010.”

[11]The objectors gave notice of intention to respond, were admitted, and filed their statement of case on 10 June 2011. In it, they said that they noted that the application was:

“1. To modify the restrictive covenant to provide that consent shall not be unreasonably withheld; and 2. A declaration that the plans annexed to the planning permission granted on 18 June 2010 are reasonable; and 3. That the development envisaged by the said planning permission be permitted.”

As to (1), they said (at paragraph 5):

“It is and always has been accepted by the respondents that it is an implied term of the covenant that consent should not be unreasonably withheld. Accordingly, there is no need and no jurisdiction for any such amendment to be made by the Upper Tribunal (Lands Chamber)…”

Similarly, in respect of (2), they said that the Tribunal does not have jurisdiction to make such a declaration, but even if it did, it would not have the effect of permitting the proposed development.

[12]As to (3), it was suggested that the application to this Tribunal had been premature, in that consent for the particular development in question had not been sought from the objectors prior to the planning application being made and they had thus not been afforded reasonable time to consider the proposals. Nevertheless, even if the Robertsons’ consent had been sought, it would have been refused. The question of whether consent had been sought and whether refusal is or would be unreasonable would be a matter for the court and not the Tribunal. That needed to be resolved before the matter was considered by the Tribunal.

[13]Having formally instructed, and obtained a report from Mr Armstrong, the objectors duly made an application to the High Court on 4 July 2011 seeking a declaration as to the reasonableness of their refusal of consent to the proposed development, and on 15 July 2011, the applicants’ solicitors advised that they had acknowledged service of the High Court application indicating that they proposed to contest it. On 20 July 2011 the objectors sought a stay of the applicants’ application to this Tribunal pending the outcome of the High Court application, and on 25 July 2011 the applicants formally notified the Tribunal of their intention to contest the application for a stay on the grounds that the High Court application was tactical and even if the court found in their favour, the application to this Tribunal would still need to be considered, as the High Court does not have jurisdiction to determine the application under section 84. As a result, the applicants sought the objectors’ consent to a stay of the High Court proceedings and some correspondence was exchanged on the subject of possible mediation.

[14]In the light of the position of the parties relating to the application for a stay of the Tribunal proceedings, a Registrar held a case management conference in Liverpool on 7 September 2011 to determine the issue. In her written decision of the same date, refusing the application, the Registrar said that at the commencement of the hearing she had informed the applicants for the stay (Mr and Mrs Robertson) that having considered the papers she was not minded to accede to the request because “the court proceedings would not necessarily settle the dispute between the parties, whereas a determination of the Lands Chamber application would provide a final determination.”

[15]Having heard the submissions of counsel for the parties, she concluded, at paragraph 8:

“I feel bound to reject the applicants [Robertsons’] arguments and have given a determination accordingly. In applying to the Lands Chamber the respondents [Mr and Mrs Wild] are exercising statutory rights under section 84. Their originating application raises section 84(1) grounds thus engaging the Lands Chamber’s jurisdiction. The Tribunal is able to assess the merits of the originating application on section 84 grounds without any determination of the reasonableness or otherwise of the applicants’ withholding consent to the proposed development. Arguments or claims put forward by any party are disregarded by the Tribunal if those arguments are not relevant to the questions to be decided by the Tribunal. Furthermore, while there may, to some extent, be an overlap between the grounds needed to be made out by the respondents in their originating application and the question of whether or not the consent of the applicants has been unreasonably withheld, the issues the Tribunal will be required to rule on are both distinct and separate and ones with which the Tribunal has specialist expertise. To the extent that a determination in favour of the respondents would “circumvent” the applicants’ rights under the restrictive covenant, that is an argument against section 84 and not a ground for a stay of the Lands Chamber proceedings.”

The Registrar also reserved the question of costs relating to the case management hearing to be considered at the substantive hearing. The High Court proceedings remain stayed. Issues

[16]A significant percentage of the evidence before me related to the background to the dispute between the parties (including two ring binders containing more than 550 pages of copy inter-party correspondence and exchanges between solicitors), and it had become abundantly clear that, as readily admitted by the parties at the hearing, the dispute is extremely acrimonious and there have been many occasions where it seems the parties have become entrenched to the extent that the focus of the issues against which this Tribunal has the jurisdiction to consider has been lost.

[17]On 17 February 2012, in an effort to encourage both sides to concentrate upon the relevant issues, the Tribunal wrote to the parties in the following terms:

“It seems to Mr Francis that the evident animosity between the parties and their advisors, together with the apparent lack of co-operation and goodwill risks clouding the matter that he is required to determine. It is clear from the extensive and exceptionally verbose correspondence that has been sent to the Tribunal in recent months…that the costs being incurred by both sides are likely to become out of proportion to the issues at hand – if indeed they have not already done so. It is hoped that in the light of the Tribunal’s concerns, the application should proceed from here on in in a manner that will ensure the facts and issues are presented before the hearing in June in a clear and relevant way that enables Mr Francis to focus upon the particular issue he is being asked to determine.”

[18]However, in the statement of agreed facts and issues to be determined by the Tribunal, there were listed 26 specific issues upon which a determination from the Tribunal was sought, a number of which were outside the relevant jurisdiction. Nevertheless, the principal matters which go to the heart of the issue, and upon which I predominantly concentrate below, were succinctly summarised by Mr Sellers at paragraph 12 of his skeleton argument where he said:

“The principal areas of controversy between the parties seem to be as follows: a) Aspect b) Amenity c) Privacy/overlooking d) Shadowing e) Massing and density f) Light”

The case for the applicants

[19]It was the applicants’ principal case that the objectors by their consistent refusal to consent to any of the development proposals were implacably opposed to any form of development, and thus unreasonably withholding consent.

[20]In his first witness statement, Mr Wild said that he had been forced to make an application to the Tribunal because Mr and Mrs Robertson, over a period of two years, had resolutely refused to consent to any of the proposals that had been put forward. A considerable amount of money had been spent trying to produce a solution that would give him and his wife the opportunity to create the large family house that they were seeking, whilst at the same time constructing it in such a way as to have virtually no impact upon the amenity and views that the Robertsons currently enjoy. Mr Wild said that he was being reasonable in submitting an application that was for modification so as to permit a specific proposal, rather than seeking a complete discharge. This would mean that the objectors would retain the right to object to any future proposals.

[21]Mr Wild said that he and his wife had purchased the application land with the intention of substantially increasing the size of the existing dated and un-modernised bungalow rather than demolishing it and starting again. When it had come onto the market, the property had been of interest to builders and developers but, as he confirmed in cross-examination, he was a chartered engineer and was not himself a registered builder or property developer. Although he had arranged for the building of his previous two properties, had helped out to some extent with plumbing and electrics and had some general building knowledge, they had not been speculative investments and had been for his family’s occupation. The same went for the application land, and it was their intention to stay for at least four or five years once the development they were proposing had been completed – possibly much longer as they had been in their previous houses for 9 and 15 years respectively. He was at pains to refute the objectors’ suggestion that he was a builder, just in it for a quick profit.

[22]The existing bungalow on the application land, Mr Wild said, was in need of extensive modernisation and improvement and it was one of the few in the area which remained, to all intents and purposes, in its original state. Most of the properties in Golf Links Road and nearby streets were significantly larger and of two-storey construction. There have been over 30 successful planning applications in the cul-de-sac since 1992, including for new properties built within large gardens to existing houses. One such was on the opposite side of the objectors’ property and has windows overlooking their garden. It seemed almost irrational, therefore, for the Robertsons to be objecting to proposals that would bring the existing bungalow up to a similar standard to the other houses in the area, and indeed, the improvements would be beneficial to local property values generally.

[23]Mr Wild said that the proposed development for which he had obtained permission (that being a factor to be taken into account in the Tribunal’s deliberations) would unquestionably be a reasonable use of the land and would have no detrimental effect upon the amenity or privacy currently enjoyed by West Hill. The existing bungalow roof is currently visible over the hedge between the two properties (that hedge having been inexplicably pruned and cut back by Mr Robertson), and the new gable end which was admittedly higher, would be only marginally more visible, especially when the specimen trees that he had spent £7,000 on and had strategically planted so as to create a natural screen, matured. A timber framed mock up of the new gable end had been constructed just before the hearing to enable the Tribunal and the experts to see precisely the height that it would be if the plan 11C (or 11D) building was to go ahead. There was some dispute as to whether the mock-up was of precisely the same dimensions as depicted on the plans, but the alleged differences were only a few millimetres, and the experts agreed that it was sufficiently accurate to allow a picture to be formed of the likely scale and massing of that end elevation in comparison to the property as currently existing. Mr Wild pointed out that the property would still be a dormer bungalow rather than a conventional two-storey house although accepted that it would include two full height gables to the front as well as the gable end finishes at each end of the structure.

[24]Asked in cross-examination if he had been into the objectors’ garden to see the mock up from that side, and from the objectors’ house, Mr Wild said that he had not. Having agreed to do so on the evening of the first day of the hearing, he was recalled on the second day and asked what he thought. He accepted that it would make a difference, in that the end of the building would be more visible than currently, particularly in terms of aspect, but said it would not be significant, and reiterated how it would, in a very short space of time, be screened by the new trees, the largest of which had already had a Tree Preservation Order placed upon it. It was also accepted that the upper floor rooms in the new front facing gables would overlook the lower garden area of West Hill, but he said that an occupant would have to “place his nose up against the window” and peer at an angle to see into the neighbours’ garden.

[25]Mr Wild said further in cross-examination that he appreciated the Robertsons would want to protect their privacy and that the ability to do so amounted to a substantial and valuable benefit. However, in his view, money would be adequate to compensate the objectors for any loss of privacy they might suffer.

[26]Elsewhere in his first witness statement Mr Wild referred to the meetings, conversations and correspondence that had passed between him and Mr Robertson and the input of Mr Irvin. His view was that the Robertsons were implacably opposed to development of any kind, but accepted in cross examination that at the fourth meeting they had (to discuss plan P3), Mr Robertson “quite possibly” said that he did not object in principle to some form of development going ahead, and that at the sixth meeting (to discuss plan P5), after he had said “we seem to be going in the right direction”, Mr Robertson said “we appear to be not far from agreement.”

[27]In his second witness statement, Mr Wild dealt at length with alleged inaccuracies and factual errors in Mr Robertson’s witness statement particularly relating to the history of both West Hill and the bungalow on the application land. He also set out more fully details of, and comments in connection with, the various meetings and discussions that had taken place as the proposed development evolved and the plans were revised. I do not set out this evidence in detail, or record at any length the extensive cross-examination particularly in respect of the meetings and the evolution of the plans, as much of it was not relevant to the issues I have to determine. However, it is appropriate to record that it was clear that at all stages, the objectors’ principal concern related to the roof height as indicated in the letters that Mr Robertson had written to Mr Wild on 16 September and 19 December 2008. In that regard, Mr Wild said that a letter dated 2 February 2009 (a draft of that letter having first been edited and amended by his solicitors) in response to a number of concerns that had been raised in the 19 December letter from Mr Robertson was hand delivered and posted through the letterbox of West Hill by Mrs Wild on 3 April 2009. Included with the letter was plan 8A, which, he said, incorporated further revisions following earlier discussions. The reason for the delay between the letter being dated, and it being delivered, was due to Mrs Wild having to wait for their architect to produce the plan, Mr Irvin having been tied up for some time with a major project for another client. Mr Wild, who had been away in Korea at this time, said that he was astonished that the respondents denied ever having received the letter or plan, and was in any event generally critical of the objectors’ dilatory attitude in responding to the various revisions that had been put forward.

[28]Mr Wild went on to say that Mr Robertson’s comments as to the historical and architectural importance of his house, and the gardens that were designed by Gertrude Jekyll in 1923, were exaggerated and inaccurate. Indeed, as shown in the important work on homes in Cheshire by Pevsner and Hubbard, the Jekyll garden was thought not to survive in its original form. It was apposite to note, he said, that at a meeting held at West Hill with the conservation department of the planning authority, it was recommended that the planning application on the basis of plan 11C be granted as it “would have no impact on West Hill.” It was clear, therefore, that, in respect of ground (c) the objectors would suffer no injury if the development went ahead.

[29]In conclusion, Mr Wild said:

“I would emphasise that I am not asking the Tribunal to decide whether Mr Robertson has been unreasonable in withholding consent to our proposals. The fact is that on any standard of normal behaviour Mr Robertson has failed to engage in the process to approve our plans. On this basis, whether the consent has been reasonably withheld or not is irrelevant to the questions that I am asking the Tribunal to decide within that jurisdiction.” and: “If the Tribunal finds that Mr Robertson has not engaged properly in the process of approving the plans then it therefore follows that his conduct in respect of that is unreasonable and that he must be ordered to pay our costs of this application.”

[30]Mrs Wild said that she had read her husband’s witness statements, and adopted them as though they were her own. She also addressed the question of the alleged non-delivery of their letter and the revised plan 8A, and confirmed that she posted it through the letterbox of West Hill on the same evening (9 April 2009) that Mr Irvin had delivered the revised plan. She said that the aim of that letter was to carefully set out justification for the proposed development, and to enable Mr Robertson to take his own professional advice. The letter had been written very much in a spirit of compromise, although it had been envisaged that if no positive response was received from Mr Robertson, the next step would have to be to submit a planning application as they could not go on incurring costs on revisions ad infinitum. No response having been received from the Robertsons, the decision was made to apply for planning permission and not to consult further.

[31]Mr Irvin is an architectural consultant specialising in individual family homes, commercial property and carbon/energy housing and has been practising on his own account in the Wirral since 1985. He said he had been instructed by the applicants in May 2008 to produce designs for a sensitive and environmentally friendly extension to their newly acquired home. He said he was advised about the restrictive covenant and it was agreed that he would undertake any negotiations with the Robertsons, acting as an “honest broker” on the Wilds’ behalf. He then prepared a drawing of the bungalow as existing (P1) which has a finished ridge height of 5.74m and a top of gutter (TOG) height of 2.42m, and initial designs (P2 and P3) which had the same TOG height and ridge heights of 9.17m. Even though these did not meet his clients’ requirements, he discussed them with the objectors to get a feel for any reasonable objections they may have, so that these could be taken into account when drafting further designs. It became apparent, he said, that the Robertsons’ main concern was the height and scale of the new roof structure and the effect that it would have on their outlook and amenity.

[32]In the light of the objectors’ concerns, and whilst attempting to produce a scheme that fully complied with his clients’ wishes, Mr Irvin said he prepared another drawing (P4) which had a reduced ridge height of 8.5m, although the TOG height was increased to 3.0m. Other amendments were made that included moving the proposed first floor extension at the ‘West Hill end’ of the property over the existing flat roofed extension to the other end of the house (over the garage) and providing a hipped and pitched roof over that single storey part with a reduced pitch of 36 degrees against the 45 degree pitch of the hipped roof to the two storey part. A further alternative was produced (P5) in response to continuing concerns expressed by the objectors, and this had the main ridge height reduced to 7.6m but a TOG height of 3.3m. The meeting with Mr Robertson to discuss that design proposal was the one where Mr Irvin said he felt the parties were moving “in the right direction”, and in cross-examination he said that at that meeting he found Mr Robertson to be amiable and polite, but was obviously displeased that he had to consider the matter at all. He did not get the impression that nothing would be acceptable, but it was clear they wanted the roof line to be lower still. However, any further reduction in ridge height would mean that the additional accommodation that the applicants sought could not realistically be provided.

[33]Mr Robertson wrote on 16 September 2008 to say that the ridge height was still too high, and wondered if Mr Irvin had had any further thoughts. Asked why he had not responded, Mr Irvin said that he could not recall exactly what his clients’ view of P5 was, other than it was not exactly what they wanted, but the Conservation Officer was not happy with it and had suggested an Arts and Crafts design, which he subsequently produced (P6). At that stage, he said that he was going backwards and forwards between the parties to this application, and the Conservation Officer, and he was working to appease all sides. Plan P6, however, proved unacceptable both in planning and conservation terms, and so an attempt was made to “start again”. There being no plan P7, Mr Irvin produced plan P8 in April 2009 together with a number of variations of it. Plan 8A was the one he believed Mrs Wild delivered to the objectors.

[34]Mr Irvin said that he believed his clients then lost patience with the objectors, and thus asked him to produce a plan for submission to the Local Planning Authority, that being plan 11B. That design had a ridge height of 8.27m and a TOG of 3.02M. He accepted that it had reverted to having a two-storey principal drawing room with master bedroom and bathroom suite above at the West Hill end. However, in cross-examination, he said that whilst the resultant gable (rather than hipped) end would be more visible to the objectors than what had been proposed during the earlier consultations (plan 5 for instance), and accepted Mr Cadwallader’s statement that “there would be an awful lot of blank wall” facing the objectors’ property, he said the difference was not in his view substantial. He said he failed to understand why a blank gable end wall might affect the objectors’ feeling of seclusion, but accepted that, subjectively, they might feel that the front, lower, garden was overlooked. Nevertheless, the objectors’ house was already overlooked by other properties.

[35]In respect of the impact upon aspect and amenity, in his rebuttal report, Mr Irvin had severely criticised the original montages that had been prepared by Mr Armstrong as they gave a false impression of the overall impact of the proposed development and, through judicious use of an 80mm lens rather than the industry standard 50mm lens, the visuals were misleading, poorly executed and misrepresent the scale and massing. Having shown the blank gable end wall in white, with the newly planted trees not properly represented, the effect was more alarming than if the depiction had used the actual render colour proposed – a less harsh beige finish, and the new trees. Mr Irvin had produced (at Appendix 8.2.3 to his second rebuttal report) his own version of Mr Armstrong’s montage which in his opinion gave a much more accurate impression of what the building would look like in terms of size and scale, and he had re-instated the trees depicting them as they actually are. He had also instructed Rust Studios (professional photographers) to comment upon Mr Armstrong’s images, and their report raised a number of questions about the methodology Mr Armstrong’s photographers had used. At the commencement of his cross-examination, Mr Irvin said that he had considered the series of revised photomontages that were handed in at the commencement of the hearing, and said that he accepted that the photographs taken the previous day (document number CLA 11-038-SK07) showing the timber mock up of the proposed gable end were accurate, and gave a reasonable representation of what the building would look like in terms of scale and massing. In respect of all the other montages, his criticisms remained the same.

[36]Regarding privacy, Mr Irvin said that Mr Armstrong’s suggestion that privacy to first floor windows at West Hill would be compromised was untrue and misleading. The objectors’ house itself would not be overlooked from any of the windows within the proposed dwelling, and the overlooking of the lower level of garden would be minimal. Mr Armstrong had also suggested that the new gable end would cast increased shadow into the area of formal garden immediately to the north-east of West Hill but, Mr Irvin said, he had not produced any evidence to back up that assumption.

[37]On the matter of the potential for overshadowing within the boundaries of West Hill, Mr Irvin said that the question was not whether that would occur as a result of the increase in height to the applicants’ property, and the fact that the top of the new gable end would be some 8.18 metres closer to the boundary with West Hill than the current roof apex, but whether the amount of shadowing removes a substantial benefit from the objectors. There are already a significant number of mature trees, some deciduous and some coniferous along the boundary between the two properties and these naturally cause shadowing. However, as a series of photographs he produced, taken on a sunny morning between 08.28 and 10.26 on 15 December indicated, there was no impact upon the main front elevation of West Hill which was almost in full sun all the time. Any dappling of the sun is caused, during the winter months, by the very tall fir trees on the far side of the applicants’ property, and the new construction would make no difference at all to that. During the summer, of course, the sun would be much higher, and fewer shadows would be cast. Mr Irvin also produced a digital sun-study showing the effects of shadowing and again, he said, this demonstrated that the effects would be negligible.

[38]Finally, whilst Mr Irvin accepted that the restrictive covenant provides the Robertsons with a practical benefit, in his view that benefit is not substantial, and the construction of the applicants’ proposed extension would not have any detrimental effect in practical terms. The case for the objectors

[39]In his two witness statements, produced on behalf of himself and his wife, Mr Robertson set out the historical background to the dispute, and his reasons for withholding consent to the applicants’ proposals. He said firstly that he had always accepted the fact that despite the wording in the restriction not being specific, he could not unreasonably withhold consent to proposals. However, in connection with this particular application, which in any event he had thought to be premature and misplaced, his reasons for refusal to accept the proposed works as depicted by plan 11C were, he said, entirely reasonable.

[40]Firstly West Hill, which was designed by Sir Arnold Thornley and built in 1923 had been specifically positioned to face south-east rather than towards the road in order for the principal rooms to benefit from sunshine and the best available natural light during the majority of the day. It was also located towards the rear of its plot so that its principal area of garden, which had been designed by Gertrude Jekyll and lay between the house and Golf Links Road, would also benefit from full sunshine without being shaded from the house. Although much was made of the architectural merits and design of the house, it was accepted that it had been virtually destroyed by bomb damage during the war, but the general layout and aspect of the rebuilt house was no different, with all the principal rooms still facing towards what would become the boundary with the applicants’ property when, in 1959, the garden was divided. What was now the Wilds’ property was built on the same building line as West Hill, but was constructed as a bungalow so as to have the least impact. Only a proportion of the property’s hipped roof is visible from West Hill. Even though the division was an inter-family transaction, it was clear, Mr Robertson said, that the family considered that the imposition of the restriction was necessary to prevent future owners doing something that would harm West Hill.

[41]Mr Robertson said that West Hill was purchased by his parents in 1974 and he grew up there. They had told him that one of the principal reasons for buying the property was the fact that it was such a light house, and its’ positioning, the layout of accommodation and gardens and the overall privacy made it an ideal property for bringing up a family. It was acknowledged that a flat roofed extension had been constructed at No. 9’s north-west end and Mr Robertson’s mother had given retrospective permission for this as it was not even visible from their property, and thus had no impact. Mr Robertson said that he took over the house in 2008 and it was, as it had been for his parents, the ideal place to bring up his own children. As a family, he said that they play football and badminton on the lawned area of the lower garden, and there is a purpose built play area right at the rear, both areas being totally secluded and not currently overlooked.

[42]When Mr Wild first approached him in July 2008 with details of his proposals, Mr Robertson said that he was told the roof line would only be “one foot higher”, but a work colleague pointed out that, on inspecting Mr Irvin’s initial plans, the ridge looked to be about 3m higher. Mr Wild eventually accepted that he had made an error, but had said that if he were to have had a two-storey house designed, it would have been at least a metre higher than what he was proposing. At a second meeting, Mr Robertson said that he had indicated that he would not be averse to some form of redevelopment taking place, including perhaps the provision of a pitched roof over the existing flat roofed single storey extension, but had made it clear that the then current proposals would have a significant impact upon his aspect, amenity and privacy.

[43]At a later meeting Mr Irvin produced drawing P5, and although Mr Irvin had commented that “we appear to be moving in the right direction”, Mr Robertson said he re-iterated once again his concerns and asked for the roofline to be lower. Everything then went quiet, and nothing further was heard from Mr Irvin, so Mr Robertson said he wrote the latter of 16 September 2008 asking what was happening. This letter was not acknowledged, but then Mr Wild rang in November 2008 and said that an Arts and Crafts design had been produced following discussions with the Conservation Officer. In that conversation, Mr Wild confirmed that Mr Irvin had received the letter of 16 September, but said that he was not prepared to accede to the request for a further reduction in the roof height, and intended to proceed with a planning application. The Arts and Crafts sketches (which still gave no measurements or specifications) were then provided by Mr Wild, and to clarify his position, Mr Robertson said that he sent the letter of 19 December 2008 saying that for the reasons he had already given, he would not be prepared to consent to that design.

[44]In June 2010, worried that the Wilds appeared to be riding roughshod over his concerns, Mr Robertson instructed his solicitors to write their letter of 4 June 2010 to explain the situation, to reiterate his concerns and to explain the legal position. The suggestion by Mr Wild’s solicitors that he had failed to engage in the process was, he said, utterly ludicrous as the letters he had referred to proved. He said that matters in terms of the parties’ relationship then continued to go downhill and he had not been provided with the plans for which planning permission had been sought until after the application was approved, and permission was granted. When those plans were eventually provided, by Mr and Mrs Wilds’ solicitors, Mr Robertson said that he was given an unreasonably short period of time to consider them (it being into the holiday season) and there was once again insufficient detail for him to be able to make a reasoned judgment before the application to the Tribunal was made on 18 August 2010. Thus, the application had been premature.

[45]As to the specific matters to be considered by the Tribunal, Mr Robertson said that under ground (aa), the proposals could not be deemed a reasonable user of the land in the context of the surrounding plots, and if the modification were permitted, injury would be caused under ground (c). The principal area of concern was the effects upon the aspect of the property; the main rooms would be looking straight out at a large and ugly blank gable wall which would be over 8 metres closer to his boundary as it would be built on the north western end of the single storey extension. The impact would be particularly noticeable in the early morning and, indeed, until quite late in the day during the winter because so much natural sunlight would be cut out especially to the principal ground floor rooms. Mr Robertson produced the originals of a series of photographs that had been appended to his witness statement, together with print outs detailing precisely when each of them was taken. These clearly demonstrated, he said, that the dappled sunlight showing through the pine trees on the far side of the Wilds’ property would be obscured in the early mornings and even, as photograph 3 showed, as late as 14.17 in mid December. He also said that Mr Irvin’s sun studies were inaccurate and misleading, in that they showed deciduous trees to be in leaf in the middle of winter.

[46]Although it was accepted in cross-examination that effects upon the aspect towards the applicants’ property could not be described as interruption to a “long view” – such as out to sea, the current outlook would be dramatically altered. The development would, he said, “be hugely prejudicial to me and my family, in that the density and massing of the proposed structure would be far in excess of what it would be reasonable to impose upon us.” It was pointed out that as the series of drawings prepared by Mr Irvin developed, it was plan 8A that had the largest massing of all, this having been produced long after he had let his feelings be known, and it was notable that plan 11C that had achieved planning consent, has a ridge height that is only 0.14m lower than that earlier design.

[47]The impact on outlook, loss of sunlight, and the potential for overlooking particularly to the lower garden area would amount, Mr Robertson said, to the loss of a substantial practical benefit, and no amount of money could compensate for the loss that would be suffered.

[48]In cross examination, Mr Robertson accepted that he was aware that any fees he incurred taking professional advice from an architect of surveyor would be reimbursed, but in his view the wording of the restriction did not require him to get such advice. He had only sought professional assistance as the matter progressed and it became clear that it was not likely to be resolved amicably. He had relied upon Mr Irvin to paint an accurate picture of what was proposed, and accepted that the plans that had been prepared by him gave a pretty good impression. He agreed that he was passionate about the issue of the proposed modification, but denied that he had sought to drag things out. Acknowledging that the tree screening that had already been planted by the applicants would have the effect of softening the stark appearance, he said that that would if anything add to rather than relieve the effects of shadowing.

[49]Mr Armstrong is a director of CLA (Condy Lofthouse Architects) of Liverpool, is a chartered architect, and has 12 years post qualification experience. He said he had been instructed by the objectors (by letter from Bermans solicitors) on 12 April 2011 to consider solely the question of whether or not the Robertsons’ objections to the applicants’ proposals were reasonable. He produced a 71 page initial report and appendices in May 2011, together with a 23 page supplementary report and appendices in response to further reports prepared by Mr Irvin, and subsequent to the two joint meetings of experts which took place on 13 & 20 January 2012.

[50]In his first report, Mr Armstrong said that he was of the view that the information provided by Mr Irvin and the applicants, right from the initial design drawings (P2, P3, P4, P5 and P8A) to those for which planning consent had been obtained (P11C as amended by P11D), did not give a clear enough picture for the objectors to be able to build up a full understanding of the precise impact that such proposals would have on West Hill. There was no evidence that a detailed topographical survey had been undertaken, nor was there sufficient information concerning the interrelationship between the two properties. Mr Armstrong said he was concerned that Mr Irvin had failed to take the objectors concerns into account, and with both the lack of information and identified errors in the plans, there was certainly not enough reliable information for a compromise agreement to be reached.

[51]The principal areas that Mr Armstrong considered were the effects upon privacy, aspect and overshadowing that any modification would have, bearing in mind that the purpose of the restriction was to protect West Hill’s special character and amenity, and to ensure that the hierarchy is maintained between the two properties. He reiterated the concerns that had been expressed by Mr Robertson and said that it was the considerably increased height and nearness of the new gable end wall that would tend to dominate the property’s current primary outlook and produced a series of photographs, photomontages and sketches to demonstrate the impact that the development would have. A number of revised sheets were produced at the hearing (CLA drawings 11-038-G3, G6, G7) together with two new documents produced by Chris Partington of CPLS Land Surveyors verifying the photomontage showing the precise position of the timber gable end mock-up (drawings 11-038-SK06 and SK07). There would also be a considerable loss of privacy due to the introduction of first floor front and rear habitable rooms at the applicants’ property, and drawings were produced to illustrate the potential for that overlooking.

[52]In appendix 8 to his first report, Mr Armstrong set out some 12 pages of criticisms of Mr Irvin’s design drawings (Plan 11C) and pointed out a number of alleged errors, omissions and discrepancies. In his supplemental report, Mr Armstrong gave details of the additional information he had eventually received from Mr Irvin, together with a list of items that had been sought but were still outstanding. He then set about an analysis of the information that he had received, and continued to criticise Mr Irvin’s sun path analysis. He produced a revised table setting out his understanding, in relation to ridge heights, of digital drawings that had been provided by Mr Irvin, together with a very detailed Scott Schedule outlining his understanding of the “remaining differences in the understanding of the proposed development” following the two experts’ meetings that had been held.

[53]In conclusion, he said that the ability to prevent the proposed development was a benefit of substantial value and advantage to the objectors and that despite all the extra information that had been made available by Mr Irvin, and their detailed meetings (of which full transcripts were also provided), there was still insufficient information from which the objectors could be expected to make an informed decision. Nevertheless, from the information that was available, it remained clear that the impact of the proposed new building would have a severely detrimental impact upon the Robertsons’ property.

[54]In cross examination, Mr Armstrong said he agreed that the originally produced drawings (P2 to P5) would have had a less severe impact upon the objectors’ property, specifically in relation to the gable end wall that in his view would be so clearly visible from West Hill’s principal rooms. He said that the two meetings he had with Mr Irvin were disappointingly unproductive. He accepted that the first meeting was adjourned whilst Mr Irvin considered the Scott Schedule that he had drafted, but denied that he had “ambushed” Mr Irvin with it. However, he acknowledged that Mr Irvin had not seen Chris Partington’s survey/verification at the date of the first meeting, and was unable to explain why that had not been made available to Mr Irvin subsequently despite his having asked for it. He said that he had been away on extended leave over the Christmas period prior to the meetings, and had thought that the surveys could be adequately dealt with at the second meeting.

[55]Asked about the effects upon aspect (as depicted in Mr Armstrong’s indicative drawing 11-038-G1 (bundle 4-1182)), he agreed that the trees planted by the applicants (as a planning condition) would resolve the issue concerning the visibility of the stark gable wall (as depicted on drawing 11-0380G3 (bundle 4-1184) and the handed-in updated document showing aspects prepared by Arc-media), but would not resolve shadowing and light issues. As to those visualisations, Mr Armstrong accepted that they were an amateur’s attempt at showing how the new building might look, and that, as letters from Mr Irvin’s advisers – Christian Smith Photography – demonstrated, they could not be “verified” as truly accurate representations in a professional photography sense. There followed a lengthy exchange regarding the veracity of the photomontages and the fact that Mr Irvin had been denied access for the purposes of verification. Mr Armstrong said the depictions were not intended to be controversial, and pointed out that he had engaged Arc-media to re-state his images in a more professional way, due to the criticisms that had been made.

[56]In response to a question from Mr Sellers, Mr Armstrong confirmed that he and Mr Robertson had, indeed, encountered difficulty in understanding the precise impact of Mr Irvin’s proposals as requests for further information and clarification of specific issues had not been provided. He said that his letter to Mr Irvin of 24 November 2011 (bundle p1554) was indicative of the problems he was having getting the required information, although he accepted that he was happy with the information he had obtained from Chris Partington’s topographical survey and inputs. This had enabled him to produce his “massing” drawing (11-038-G2 bundle p1183) however, in respect of this, he accepted the Building Research Establishment (BRE) figures quoted in Mr Irvin’s rebuttal statement at paragraph 140 (bundle p 962) which said that if a development falls wholly below 25 degrees from the horizontal it would be unlikely to have an effect upon diffused light available to the property. In this case the steepest sight line was 18.5 degrees, but in re-examination Mr Armstrong stressed that shadowing would undoubtedly occur between November and March.

[57]Mr Cassidy is a chartered surveyor with 15 years valuation experience in the north-west of England and, having formerly been a partner in The Venmore Partnership, now works on his own account as a property consultant. He said he had been asked to provide his opinion of what, if any, diminution in value would be caused to West Hill by the proposed development. Having taken into consideration details of the recent sales of two comparable but smaller properties in Golf Links Road (Nos 17 and 21) together with the asking prices for a number of houses in nearby streets, Mr Cassidy concluded that the value of west Hill, as at March 2012, was £700,000. However, it was his professional view that were the proposed development to have been constructed on the application land, the value would be reduced by £75,000 to £625,000 due principally to the fact that West Hill, somewhat unusually, faced directly towards the application land and the current aspect would be seriously compromised. The Robertson’s property would in his view take on the feel of being more enclosed.

[58]In cross-examination, Mr Cassidy admitted that his opinion of the diminution in value was entirely subjective but his view had been informed by his knowledge and experience of thousands of sales and valuations. The figure, he said, “felt right”. There was no doubt in his mind that even with the tree screen in place, the effects would be considerable and it was a fact that the better the aspect of a property, the higher the value. Submissions

[59]Mr Cadwallader submitted that whilst it was and always had been accepted by the objectors that it was implicit that they could not unreasonably withhold consent to a reasonable request to alter the building currently erected on the site, it was their case that the refusals for all the proposals that had been put forward were due to their genuine and passionately felt concerns about the effect that any of the schemes would have on their property and their enjoyment of it. It had been denied by Mr Robertson that he was implacably opposed to any form of development however inconsequential the effect on their property, and he had always indicated that he was prepared to consider proposals which involved a lower roof line and amendments that avoided the stark and overpowering gable end wall that had been permitted by the planners. For consent to be refused under the implied term in the covenant, it would be sufficient for the reason(s) to be those that might be reached by a reasonable man in the circumstances, and those reasons must have some proprietorial connection with the objectives of the covenant – which they clearly did here.

[60]Whilst the question whether the consent has been unreasonably withheld is not a matter for the Lands Chamber under section 84, it was submitted that if consent had been unreasonably withheld, the covenant would presumably not impede the proposed development for the purposes of section 84 (which the applicants need to establish to invoke the jurisdiction), since in the event they could simply proceed to build with or without obtaining a declaration from the court.

[61]Mr Cadwallader said that whether the proposed user of the of the applicants’ property was a reasonable user of the land was the first of the series of questions adopted by the Tribunal in Re Bass Limited’s Application

(1973) 26 P & CR 156

, and normally considered in applications under ground 84(1)(aa) and that question was clearly therefore within the Tribunal’s remit. It was acknowledged that the grant of planning permission was persuasive but not conclusive, and it was relevant to consider the difficulties that the applicants had in achieving the consent together with the impact upon aspect, overshadowing and privacy that had been rehearsed in the evidence. In the circumstances, it was submitted that the proposed development was not a reasonable user and, in connection with the second question in Re Bass , it is clear that the restriction does impede such user. However, it is only impeded if either consent is not sought or if it is sought and not unreasonably withheld.

[62]The answer to the question as to whether the ability to impede such user secures practical benefits to the objectors is, it was submitted, clearly yes. Those benefits include the right to be consulted about the proposed development and to insist upon a sufficient degree of clarity to enable the objectors to understand the precise implications and their probable impact. It also gives them the right to not unreasonably refuse a development. The ability to preserve the amenity of their property, by preventing a development that would have had the severe detrimental impact that had been rehearsed in detail in the evidence was clearly a practical benefit of substantial value or advantage. Even a figure equivalent to the diminution in value suggested by Mr Cassidy would be insufficient to compensate the objectors for the detriment that they would suffer, and for the loss of personal control that the existence of the restriction gave them. For these reasons, and the fact that modification of the covenant that was sought would cause injury under ground (c), Mr Cadwallader invited the Tribunal to conclude that the grounds had not been made out and the application should be rejected. It was also suggested that the conduct of the applicants should be taken into consideration, particularly the change of stance taken by Mr Wild after plan P5 had been considered (which was the point at which appeared the parties were getting closer to a mutually acceptable solution), whereby he took the decision to make an application for planning consent without consulting the Robertsons further.

[63]Mr Sellers agreed that the questions considered in Re Bass were those that it was appropriate for the Tribunal to consider, but argued that the answers were that whilst the restriction impeded some reasonable user, it did not secure any practical benefit of substantial value or advantage. In the applicants’ view, money would be adequate compensation and the Tribunal was urged to exercise its discretion and grant the application.

[64]It was submitted, in terms of whether the proposed user would be reasonable, that whilst it is accepted that the existence of planning consent is not determinative, it is apposite to note that the local planning authority, when granting permission, observed:

“The proposed extensions represent a modest increase in the overall footprint of the main dwelling, it does not affect the general spaciousness around the plot and retains an open and green feel which combined with the attractive landscaped setting serves to preserve the appearance of the Conservation Area and accords with policies HS11 and CH2.”

It was also appropriate under section 84(1B) to consider the context in which the covenant was imposed, and whilst this again cannot be conclusive, it weighs heavily in favour of the Tribunal exercising its discretion on favour of the applicants. There could be no question, Mr Sellers said, that the restriction impedes the proposed user.

[65]It was common ground that in impeding the proposed user the restriction secures practical benefits, but the question the Tribunal has to answer is whether they are of substantial value or advantage. In determining this, it is accepted that the issues of aspect, amenity, privacy, overshadowing, massing and density and light need to be looked at separately and cumulatively and on a broad basis. As Eveleigh LJ said in Gilbert v Spoor

[1983] Ch 27

at 32F:

“The words of section 84(1A)(a), in my opinion, are used quite generally. The phrase ‘any practical benefits of substantial value or advantage to them’ is wide. The subsection does not speak of a restriction for the benefit or protection of land, which is a reasonably common phrase, but rather of a restriction which secures any practical benefits. The expression ‘any practical benefits’ is so wide that I would require very compelling considerations before I felt able to limit it in the manner contended for. When one remembers that Parliament is authorizing the Lands Tribunal to take away from a person a vested right either in law or in equity, it is not surprising that the Tribunal is required to consider the adverse effects upon a broad basis.”

[66]The objectors, Mr Sellers submitted, have not satisfied that requirement. The impact and effects have been exaggerated and in the applicants’ view, any effect of the proposals will be minimal. The objectors’ perception was overstated to such a degree that the benefits were made out as substantial when they were not. For example, any impact from loss of sunlight would be temporary and transitory such that the only time sun might be cut out from principal rooms would be when the sun was very low on the horizon and directly behind the proposed gable. At other times, sunlight would still break through the tree screen that had been provided and was currently growing vigorously. The criticisms of the massing and density of the extended building were again overstated, and it should be noted that the proposals, in terms of size and appearance, are very much in tune with other developments in the area.

[67]In his opening skeleton argument Mr Sellers listed and quoted from a number of previous Tribunal cases and authorities which he said gave a flavour of the approach that the Tribunal had taken in previous cases. In summary, he said that grounds (aa) and (c) were clearly satisfied. As to what compensation should be awarded to the objectors if the Tribunal chose to adopt its discretion, Mr Sellers said that this was a free standing issue that would need to be dealt with separately. It should be borne in mind that the applicants had not obtained valuation evidence and access to West Hill had been refused by the objectors. Conclusions

[68]Considering firstly the law on the question of the alleged unreasonable withholding of consent, where (as is agreed to be the case here) there is an implied term that consent to the alteration will not be unreasonably withheld, if, on the evidence, it would be unreasonable for the covenantee to refuse consent to the alteration, ground (aa) would not have been made out. Ground (aa) in terms only applies where the restriction impedes some reasonable user of the land. If consent to the alteration could not reasonably be withheld, the restriction would not impede the alteration. Therefore, if, on the evidence, the Tribunal concluded that it would be unreasonable for the covenantee to refuse consent to the alteration, the application on ground (aa) would fail.

[69]The Tribunal’s conclusion that it would be unreasonable for the covenantee to refuse consent to the alteration would not, however, be binding upon the parties. If the covenantee took proceedings to restrain the proposed alteration, the Tribunal’s decision would not mean that the point was res judicata. Nor does the Tribunal have the power to grant a declaration, which would have this effect as Mr Cadwallader said.

[70]A conclusion that it would be reasonable for the covenantee to refuse consent to the alteration would not mean that the application under ground (aa) must fail. It might be reasonable for the covenantee to refuse consent because he would suffer some disadvantage, but not a substantial disadvantage. The was the conclusion of the President in Re Jilla

[2000] EGLR 99

where he said, at 102E:

“On ground (aa) it is common ground that the proposed user is reasonable. I have no doubt that Mrs Melbourne is able, under the terms of the covenant, to refuse to approve plans for the proposed extension. It would undoubtedly increase the bulk of no 138 [Hainault Road, Chigwell] as perceived from her house, and it would have some adverse impact in terms of daylight and sunlight. In enabling her, by refusing to approve the plans, to prevent the extension being built, the covenant therefore impedes the reasonable user and confers a practical benefit upon her. The key question is whether this is one of substantial value or advantage.”

It was held that a payment of £10,000 (about 1.5% of the value of the objector’s house) would be adequate compensation to reflect the measure of the benefits secured to the objector by her right to prevent the extension from being built. Those benefits were not, in the President’s view, of substantial value or advantage.

[71]This is the key question that I have to answer in this case, which is question 4 of the six referred to in Re Bass : 1. Is the proposed user reasonable? 2. Does the restriction impede the proposed user? 3. Does impeding the user secure to the objector practical benefits? 4. Are those benefits of substantial value or advantage? 5. Is impeding the proposed user contrary to the public interest? 6. Will money be adequate compensation?

[72]I have summarised above the evidence of the experts in the briefest possible terms, as a very significant amount of the infinite detail (described by Mr Sellers as “minutiae”) into which Mr Armstrong in particular had gone was substantially more than was necessary in order for me to form a conclusion, and showed just how acrimonious this dispute has become, not just between the parties, but between the experts as well. In my view, the plans and documents provided by Mr Irvin together with the responses from, and the additional information provided by, Mr Armstrong to which I have referred are sufficiently clear for a reasoned decision to be made. In particular, I found the photomontages referred to above and the “massing” drawing prepared by Mr Armstrong from a Chris Partington digital survey (11-038-G2 bundle p1183) of considerable assistance, as was the timber framed mock-up for the gable end which, apart from perhaps a few millimetres, was agreed to be in the correct position to reflect its position in accordance with plan 11C.

[73]Turning then to the specific questions, I think there can be no doubt that the proposed user is reasonable. The application is for an admittedly very large extension to an existing residential dwelling located in a high class residential area, and there is no suggestion that he user of the land will in any way be altered. Planning permission has been granted for the extension. I do not accept the objectors’ arguments that the prospective impact of the proposals makes the user unreasonable.. Those arguments go to questions 3 and 4. I therefore determine that the proposed user is reasonable, and it is common ground that the restriction impedes that user.

[74]There can be absolutely no doubt that impeding the user secures practical benefits to the objectors, and this was indeed common ground, Mr Sellers admitting as much in his oral closing submissions. Even if that fact had not been agreed, it is in my judgment abundantly clear that bearing in mind the ‘sideways’ aspect of the objectors’ property directly towards the application land that the precise reason for the inclusion of the relevant section of the restriction (highlighted in bold in paragraph 2 above) was to protect the owners of West Hill from development that might impact upon their property, and their enjoyment thereof.

[75]Whether or not those practical benefits are of substantial value or advantage are a question of fact and degree (see Re North’s Application

(1997) 75 P & CR 117

)) and it is agreed that each case needs to be considered on its own merits. Dealing with the specific areas of dispute as identified in Mr Sellers’s opening (paragraph 18 above) I consider firstly the question of aspect. Were it not for the fact, as referred to in the above paragraph that the objectors’ property, including its principal rooms, faces directly in the direction of the applicants’ property I do not think this would have been a particular issue. However, it does, and at the moment there is an attractive outlook to the south-east towards the boundary and the tall pine trees on the further boundary beyond. It is true, as Mr Wild pointed out, that the half-hipped roof of the existing bungalow can be seen but this is not, in my view, currently obtrusive. However, following his visit to the Robertsons’ property on the evening of the first day of the hearing, Mr Wild admitted that the new gable end would be higher, but said it would only be marginally more visible. I do not agree, as not only would it be some 2.67 metres higher than the existing ridge, the apex would be significantly more obtrusive as it would be very much closer to the boundary than the current ridge due to the fact that the nearest part of the bungalow is flat roofed, and the main roof beyond is pitched.

[76]I do agree that the appearance of the new gable end wall (and front facing gables beyond) as depicted in Mr Armstrong’s initial montages gives a false and somewhat alarming picture, but those prepared by CLA and Arc-media on drawing 11-038-G3 revision B handed in at the hearing do, in my view, give a fair and un-exaggerated indication of what it would look like. While these were graphic indications, the existence of the timber framed mock up was “real life” and it served to confirm the initial concerns that had built up in my mind having seen the graphic images. There can be no doubt that the tree screen proposed would serve to soften the impact of the building, but in that regard I accept the evidence and arguments promulgated by Mr Armstrong (and Mr Robertson’s concerns) that the trees will have the effect of creating much more shadowing than currently occurs. In my opinion, the sun path analysis produced by Mr Irvin did not give an accurate feel for the effects of either the gable end or the screening, whereas the photographs produced by Mr Robertson certainly did. There is no doubt in my mind that not only will views from the windows of West Hill’s principal rooms be adversely affected, but there is the likelihood that the benefits of early morning (and not so early) sun in the winter months especially to the ground floor rooms will be, to some extent, lost. I am satisfied that the issue of the potential for the proposed new gable end wall to have a severely detrimental impact on the outlook from the objectors’ property by introducing a stark and overbearing structure virtually right onto the boundary is enough on its own to enable me to conclude that the benefits are of substantial value and advantage. I entirely agree with Mr Robertson where he said the development would be hugely prejudicial and that the “density and massing….would be far in excess of what it would be reasonable to impose upon us.” In my view Mr Armstrong’s drawing 11-038-G2 showing the effect on sight lines created by the massing and density of the new structure gives a clear indication of just how overbearing the structure as proposed would be.

[77]There is then the question of the impact upon privacy by overlooking from the front and, to a lesser extent, rear windows of the extended building. Whilst I accept that the ‘overlooker’ would need to be right up against one of the upper floor windows to gain sight into the objectors’ lower garden or the upper play area, the fact remains that at the present time such privacy is maintained. The arguments that the property is currently overlooked from elsewhere is, in my judgment, nothing to the point. In any event, the two windows that have been added to the property on the other side of West Hill are bathrooms or cloakrooms and as such have obscured glass. It is the potential for overlooking from the application land that is relevant here as it is that which is protected by the restriction. I am again satisfied that the ability to prevent such overlooking occurring is a substantial benefit, although, in terms of overall effect, is less valuable than the issue referred to above. I do not accept the argument where Mr Sellers prayed-in-aid of the planners’ comments on the application as that referred, of course, to the application land and not the objectors’ property.

[78]In the light of the evidence, and my conclusions upon it, I determine that ground (aa) is not satisfied, and the application fails. Similarly, it is clear that if the modification was permitted (on the basis of plan 11C (or 11D)), injury would be caused to the objectors, and the application must also fail on ground (c). The question of compensation does not therefore fall to be considered.

[79]This decision disposes of the issues before me and will become final when the question of costs is determined. A letter accompanying this decision deals with submissions on costs. DATED 3 September 2012 P R Francis FRICS ADDENDUM ON COSTS

[80]Extensive submissions on costs have been received from the parties. For the applicants, much of the reasoning set out in their opening skeleton argument was repeated, and there was a significant re-statement of the principal issues that had been before me at the substantive hearing. In particular, it was submitted that the objectors’ conduct had been unreasonable throughout, right from when they were first approached in July 2008 through to the substantive hearing. The objectors, it was said, exaggerated and overstated in their evidence the impact that the applicants’ proposals would have and their expert, Mr Armstrong, (as the Tribunal indeed found) had undertaken work and gone into a depth of detail that was far more than was necessary for the Tribunal to form a reasoned conclusion.

[81]The objectors’ conduct and overall uncooperative approach had resulted in a dramatic and unnecessary escalation in costs and, as the applicants had warned at the outset, it was their intention to seek their costs whatever the outcome of the application in the light of this unreasonable behaviour. It was submitted that an example of what would have caused costs to escalate was Mr Armstrong’s effective withdrawal of his first report. Thus Mr Irvin’s costs associated in dealing with it were wasted, and Mr Armstrong’s subsequent reports went into such minutiae that further significant costs were incurred by Mr Irvin in rebutting or dealing with them.

[82]Further examples of the objectors’ intransigence were their failure to engage with the applicants’ proposals for mediation, their failure to appoint an architect at an early stage, refusal of access for Mr Irvin and for valuation purposes together with their general failure to say what development would be acceptable. All of this substantially increased costs (on both sides) and it would, it was suggested, be manifestly unfair for the applicants to have to pay those costs of the respondent or indeed to have to pay any element of their own that were due to the objectors’ attitudes and actions (or inaction).

[83]As to the costs of the interlocutory hearing on 7 September 2011 relating to the objectors’ application for a stay in proceedings pending the outcome of their High Court application, it was pointed out that the applicants were successful and thus all of their costs associated with that exercise should be met by the objectors.

[84]In all the circumstances, it was submitted that the applicants should have all of their costs paid by the objectors as, on the basis of this “deeply acrimonious” dispute, there is every good reason to depart from the usual order for costs. Alternatively, the objectors should be ordered to pay a proportion of the applicants’ costs or, if the Upper Tribunal is not minded to accede to that request, there should be no order for costs. If the Tribunal should decide to make any costs award that is adverse to the applicants, then in accordance with the provisions of paragraph 12.9 of the Practice Directions, the applicants said that they seek an oral hearing.

[85]For the objectors, it was pointed out firstly and most importantly that they were entirely successful on both grounds under which the application was (finally) pursued. A very significant proportion of the time taken up both prior to and at the hearing related to the applicants’ allegations that the objectors were “implacably opposed” to any form of development and that their consent was being unreasonable withheld. That the objectors were not opposed to the applicants’ desire to extend their property and to a form of development that would not result in the very substantially increased ridge height had been made clear at an early stage. This was confirmed beyond doubt during the hearing when Mr Wild admitted under cross-examination that Mr Robertson had “quite possibly said” he did not object to some form of development. Further, Mr Irvin accepted in his evidence that he did not get the impression during his early “honest broker” meetings with the objectors that nothing would be acceptable.

[86]The objectors’ opposition to the proposals that were put forward had been consistent, fair, and entirely justified. It was clear that the applicants were the ones who failed to engage in that having reached design amendment P5, they clearly lost patience and elected to make an application for planning consent for a development that had a roof line as high or higher than that proposed in the earlier schemes and which, therefore, took no account whatsoever of the objectors’ concerns. The applicants would have well known that their proposals would be opposed, but did not even inform the objectors when they submitted them to the Local Planning Authority, Mr & Mrs Robertson finding out about it through the council’s website.

[87]The application, it was submitted, has been pursued by Mr & Mrs Wild with determination and ferocity and it was illuminating to note that their aggressive approach applied from the very start with the costs threat that was made. Much time was taken up both prior to and during the hearing in connection with the background and history of the matter, not because it was irrelevant, but because the objectors had to rebut the accusations of implacability and unreasonableness. For instance, the applicants made much of the Robertsons’ failure to formally appoint an architect at day one. There was, in fact, no requirement for that to be done.

[88]The suggestion that Mr Armstrong’s first report was ‘effectively withdrawn’ was vehemently refuted. It had been necessary for him to provide two additional reports to respond to Mr Irvin’s criticisms, and to deal with information that was coming to light as the application process progressed. Indeed, it was submitted, the only the only reason it might appear that Mr Armstrong went into more detail than was strictly necessary was to counter those detailed criticisms. There was also additional work involved for the objectors’ expert in extracting the information that he had actually sought from Mr Irvin.

[89]On the question of mediation, the objectors set out at length the sequence of correspondence concerning that issue. From this, it was submitted that it was clear that far from having failed to consider that offer the objectors’ solicitors had actually supported the idea and had attempted to move things on. There were no grounds for the applicants’ suggestion that the objectors had been uncooperative, and indeed Bermans were actively proposing ADR to Aaron & Partners as recently as January 2012.

[90]Taking all these circumstances into account, it was submitted that there was no reason why the Tribunal should depart from its normal principles that costs should follow the event, and the objectors should have their costs. As to the Robertsons’ application for a stay in the proceedings, it was submitted that, given the relationship between the parties and the questions over whether the objectors had unreasonably withheld consent, their actions were entirely justified. As such, those costs should not follow the event (it being acknowledged that the applicants were successful on this issue).

[91]Costs are in the discretion of the Tribunal. Specific rules apply in respect of section 84 applications, and the principles are set out in paragraph 12.5 of the Practice Directions:

“ 12.5 Applications under section 84 of the Law of Property Act 1925 1) On an application to discharge or modify a restrictive covenant affecting land, the following principles will be applied in respect of the exercise of the Tribunal’s discretion regarding liability for costs. 2) Where an applicant successfully challenges an objector’s entitlement to object to an application, the objector is normally ordered to pay the applicant’s costs incurred in dealing with that challenge, but only those costs. Where an applicant unsuccessfully challenges an objector’s entitlement to object to an application, the applicant is normally ordered to pay the objector’s costs incurred in dealing with that challenge. 3) With regard to the costs of the substantive proceedings , because the applicant is seeking to remove or diminish particular property rights that the objector has, unless they have acted unreasonably, unsuccessful objectors to an application will not normally be ordered to pay any of the applicant’s costs. And successful objectors will usually be awarded their costs unless they have acted unreasonably.”

It is the last sentence of sub-paragraph 3 that applies here.

[92]I am satisfied that, in the light of the background and history of this case and particularly the unquestionably aggressive stance taken both by the applicants and their advisers, the objectors have acted entirely reasonably in respect of their actions relating to their challenges to the application. Their objections, as I have indicated in the substantive decision above, were in my judgment entirely justified. Although there were some areas where, if relationships between the parties and between their advisers and experts had been less fractious, costs could probably have been saved (and I am thinking particularly of the level of detail that was covered in the reports and in the huge amount of inter-party correspondence and general point scoring that took place), I do not accept that any of the additional costs incurred can be laid entirely at the objectors’ door.

[93]In connection with the suggestions that they were unreasonably withholding consent, the objectors had commenced High Court proceedings and were entitled, in my view, so to do. They quite reasonably, in my judgment, sought a stay whilst that matter was pursued. However, as the Registrar’s decision pointed out, a decision on that question would not resolve the restrictive covenant issue and she thus refused the application. If it had not been for the stance taken by the applicants, such actions would not have been required and I do not think therefore that it would be fair or equitable for the objectors to be penalised by a costs award against them in respect of this aspect of the case.

[94]Having concluded that the objectors have not acted unreasonably I can see no reason to depart from the normal rule on costs as set out above, except in respect of the stay application. I therefore determine that the applicants shall pay the objectors costs (including those relating to the stay application), such costs to be the subject of a detailed assessment by the Registrar on the standard basis if not agreed. DATED 5 November 2012 P R Francis FRICS

Wild & Anor, Re Golf Links Road [2012] UKUT 306 (LC)

Cited in 2 later judgments