“It seems to me that if, as sometimes happens, the character of an estate as a whole or of a particular part of it gradually changes, a time may come when the purpose to which I have referred can no longer be achieved, for what was intended at first to be a residential area has become, either through express or tacit waiver of the covenants, substantially a commercial area. When that time does come, it may be said that the covenants have become obsolete, because their original purpose can no longer be served and, in my opinion, it is in that sense that the word “obsolete” is used in section 84 (1) (a).” 46 Ground (b) is satisfied if those entitled to the benefit of the restriction have, either expressly or by implication, agreed to the same being discharged or modified. 47 Mr Weekes suggested that these two grounds could usefully be considered together. He argued that both grounds were satisfied because, with the acquiescence of those entitled to the benefit of the covenants, the Estate Company had sold the application land and other surplus land to owners of houses on the Estate for what plainly must have been intended to be private residential use. The Estate Company and the beneficiaries then 12 acquiesced, for over half a century, in the use of the application land and other surplus land for private residential purposes rather than for the communal purposes for which it was originally allocated by the scheme of covenants. 48 The same acquiescence, Mr Weekes submitted, barred reliance on the covenants by the owners of the houses on the Estate. As a result the covenants were entirely devoid of life for all purposes and, by reason of those circumstances, they could no longer achieve their original purpose and were obsolete. 49 In support of his submission that the covenants could no longer be enforced as a result of acquiescence Mr Weekes referred to a number of authorities in which land had been used in contravention of restrictive covenants. These included Re W Findlay & Co Ltd’s Application(1963) 15 P&CR 94 , which concerned land used for shops for more than 40 years “without complaint or objection of any kind” in defiance of a covenant restricting its use to a private residence; an application to modify the covenant succeeded under grounds (a) and (b). In Attorney-General of Hong Kong v Fairfax Ltd[1997] 1 WLR 149 the Crown let two and a half acres of land in 1862 for a term of 999 years by a lease restricting the use of the land to use for one or more dwelling houses. After 1945 the land was developed as a block of flats, which was inconsistent with the covenant. The Privy Council upheld the decision of the Court of Appeal of Hong Kong that, by acquiescing in a development which was “wholly inconsistent with the continuance of the covenant relied on”, the Crown must be presumed to have released or abandoned the covenant. 50 Reliance was also placed on Re Voss’s Application and on the conclusion of the Tribunal that, by selling off The Lea for use as a school and its playing-fields, and by fencing off the application plot and transferring it to the neighbouring owner, the application plot could never now be used as a greenway and a roadway, that being the purpose which the restrictions had been intended to secure; as a result the restrictions were held to be obsolete. 51 For the same reasons, Mr Weekes submitted, the rights of way granted to the owners of houses on the Estate to use the application land for recreation must be taken to have been abandoned or released and to have ceased to exist. The easements over the application land had not been used for over half a century, and there had been acquiescence in the use of the land exclusively for private residential purposes so that the easements must be taken to have been abandoned. 52 We do not accept these submissions. 53 The purpose of the covenants must be ascertained from their language, read in the context of the building scheme as a whole. Shorn of permissive exceptions the purpose of the covenants was to secure that “no building or erection of any description will be erected on any close” and that “no close shall be used for any purpose other than as a 13 green garden open space or pleasure ground for the benefit … of the Purchasers and other residents on the Vendors’ Burhill Estate”. 54 It is true that the Vendor was entitled to derogate from the restrictions and to erect fences, seats, shelters and even buildings for the accommodation of employees and their tools and equipment (provided they were not residential buildings). But the Vendor was under no obligation to provide any of these additional facilities or to make the closes suitable for public access. It would have been entirely consistent with the scheme of covenants for the closes to have remained undeveloped and free of the presence of any building or erection of any description. 55 The closes have remained either entirely or substantially undeveloped. The only development on any of the closes has been the construction of the greenhouse or “garden house” on the application land by Mr Purefoy, sometime in the 1950s or 1960s. That structure is now derelict, but even when newly built its presence would have been an insubstantial basis on which to conclude that the covenants had been wholly abandoned. Although large enough for a greenhouse, it covers only a very modest proportion of the site. It is not visible from Icklingham Road because of the continuous hedge along the frontage (which Mrs Morrison’s evidence confirms was present for as long as she has known the land); for there to be acquiescence in a breach of covenant there must first be knowledge of the breach. The Tribunal’s decision in Re Voss’s Application records that when the Estate Company became aware of it they granted a licence for the retention of the building on the grounds that it was well hidden and used for the storage of garden plants; to regularise what was originally a breach is not consistent with acquiescence in the breach. Moreover, as the grant of the licence suggests, the building was of the sort contemplated by the exceptions in favour of the Vendors and is consistent with the use of the application land for its permitted use as a garden, for which purpose it has been used continuously for the whole of the period relied on by the applicant. 56 The close opposite the application land was sub-divided in 1948 when the greater part of the land was sold off to the adjoining owner. Despite that sale and its incorporation into the neighbouring garden no buildings have been constructed on the plot. A new house has recently been built on the adjoining plot, but no part of that building encroaches onto the area designated as a close in the scheme of covenants which remains in use as a garden; nor has the portion of the close retained by the Estate Company in 1948 been developed. The covenants have therefore been observed in relation to the whole of that close. 57 It is true that with the exception of the unsold portion of the close on the eastern side of Icklingham Road, the Estate closes have not been used for public, as opposed to private, recreation. This is in contrast to the closes on the adjoining estate to the north- east, which remain as wooded open space with easy access. But we do not consider that this departure from the original object of the covenants justifies the conclusion that they have been abandoned or become obsolete. They continue to perform their intended purpose of preventing the development of blocks of land on opposite sides of Icklingham Road at its mid-point and main junction. We consider that to have been a significant 14 purpose of the covenants, which remains capable of achievement despite the public no longer exercising their rights of access. We note also that while the Tribunal in Re Voss’s Application was prepared to treat the covenants against building on the greenway as obsolete following its incorporation into a private garden it made it clear that “in respect of a close it may be more difficult to conclude that the prohibition on building thereon is obsolete”
“It appears to me that the thin edge of the wedge was the act of the Company when, recognising the effect of its own act in selling off the land to the west to the County Council [the Lea] it transferred the application plot to the applicant’s predecessor.” 18 75 The Tribunal went on to consider this argument in the context of the possible redevelopment of closes and of the “Jaybee driveway”, i.e. the land originally designated as road and greenway but which was subsequently incorporated into what is now 21 Icklingham Road when The Lea was sold off. The Tribunal said at page 12: “If my decision in the present case should encourage the making of an application to the Tribunal under section 84 in respect of the Jaybee driveway or any of the closes any such application will have to be considered on its own merits. It is very doubtful whether the owner of Jaybee could seek to develop the Jaybee driveway because that driveway is in fact the only means of access from Icklingham Road to Jaybee. Moreover in respect of a close it may be more difficult to conclude that the prohibition of building thereon is obsolete and will cause no detriment or injury than in the case of the application plot.” 76 We do not consider that the proposed development would create any precedent for the development of the greenways, which are integral to the appearance of the Estate and incapable of separate development. These are likely to remain undeveloped and the application does not seek to incorporate any of the adjoining greenway into the proposed development. That greenway is now owned by Fairmile Estate Limited. 77 The only other close on the Estate is located directly opposite the application land on the eastern side of Icklingham Road. Part of this close is now owned by Fairmile Estate Limited with the remainder (the greater part) having been sold in 1948 to the owner of what is now 14 Icklingham Road. This land has been kept undeveloped and the current owners, Mr and Mrs Hennessy, objected to the present application on the grounds that it would set an adverse precedent. There is also a small sliver of the close on the western side of Icklingham Road, to the south of the public footpath, which is now part of the garden of Druid’s Lodge (No.15). The current owner, Mrs Hussain, is also an objector to the application. This sliver of land is too small to be capable of independent development. 78 Whilst recognising that to some residents a decision favourable to the applicant in this case may appear to weaken the covenants as they apply to other land, and giving that factor weight in the context of a long established building scheme, in our judgment the overall integrity of the scheme will not be further jeopardised by allowing the current application. We agree with the Tribunal in Re Voss’s Application that it was the sale of land designated for road, greenway or close to private owners by the Estate Company which destabilised the scheme of covenants. That break from the original conception of community use inevitably created greater scope for the consideration on their individual merits of proposals by the new owners of the burdened land and their successors. At a practical level the covenanted land would remain protected. Fairmile Estate Limited owns, and therefore controls, a substantial part of the other close on the Estate as well as the closes on the adjoining Estates (and to which the public appear to have access). Any possible development of that part of the close which has now been incorporated into the garden of 14 Icklingham Road would have to be considered on its own merits, and we do not think those merits would be significantly altered by the development of the 19 application land. Despite this part of the close being deemed to be a development area since 1948 the owners of 14 Icklingham Close have not developed (or apparently attempted to develop) it, and its prominent position on the corner of Icklingham Road and Burstead Close would require specific consideration. 79 The second aspect of the consideration of ground (aa) requires us to determine whether the covenants secure to the persons entitled to the benefit of them substantial practical benefits in terms of amenity. It is suggested by the objectors that the absence of residential development on the application land creates an attractive visual break in the street scene. The applicant says that the existence of a large plot of undeveloped land within a row of houses on the west side of Icklingham Road is anomalous and that Icklingham Road would benefit from the application land being developed for a purpose that better reflects how the Estate has actually been laid out and occupied. 80 In approaching this question we begin by rejecting Mr Weekes’ invitation to set to one side the views of the lay residents and to place weight only on the expert views of Mr Derbyshire and Mr Beer. The assessment of visual amenity is a subjective matter on which the Tribunal is well able to reach a conclusion of its own without the assistance of experts, and on which views expressed by residents with long experience of the neighbourhood, and a mature appreciation of its attractions, are at least as worthy of consideration as those of professional observers whose assessment is likely to be based on a fleeting acquaintance and inevitably risks being influenced by the interests of their client. 81 We also give no significant weight to the current overgrown condition of the application land, either as a factor in favour of, or against, the application. The land is concealed from view behind its high hedge. The applicant is free to make such use as she chooses of her own land, within the constraints of the covenant, but cannot improve her prospects of success by leaving it in an unkempt condition (although we do not suggest that she has done so deliberately in this case). 82 In our judgment the key determinant of the character and amenity of the Estate is the system of greenways on either side of the road, rather than the presence of the undeveloped closes which in the main have long since been appropriated to private use and which are now enclosed and shielded from view by tall hedges. The proposed development of the application land would be in keeping with the type, size, style and density of the existing houses in Icklingham Road and would not, in our opinion, have a substantial effect on the amenity of the Estate in general or on neighbouring properties in particular. The dominant feature of the frontage of the application land is the greenway and the tall hedge behind it. We consider that, provided the hedge is retained and kept to a minimum height of 2.5m, the visual amenity of the Estate would be preserved and the development would not adversely affect the character of the Estate. The view of the application land from the neighbouring properties and that of residents of the Estate when passing the site will change; but that does not inevitably mean that a substantial practical benefit will be lost. We give weight to the views voiced by Mr Abrahamsen, but we do not consider that the benefit of retaining the application land as an undeveloped plot, 20 rather than as the site of two further dwellings largely concealed from view by the sort of high hedge common in the area, is substantial. 83 We do not consider that the proposed development would lead to a material increase in traffic using Icklingham Road nor that there would be any substantial adverse effect arising from the normal residential activities likely to take place. 84 None of the objectors said in terms that the covenants secured practical benefits of substantial value. But six of the objectors stated the amount of compensation they would claim if the application were successful. Those amounts range from£50,000 to£750,000 . In our opinion, and given the high value of the properties on the Estate, a claim for a six figure sum for loss or disadvantage suffered, if sustained, would necessarily mean that the covenants did secure practical benefits of substantial value to the objectors. 85 The objectors did not adduce any expert valuation evidence to support their claim figures. For the applicant Mr Beer concluded that even the immediate neighbours would not be “affected adversely in any way” and that there would be “no diminution in value” of any of the objectors’ properties. He considered that the proposed development would give a certainty about the future use of the application land which the market would welcome. We accept that there would be no diminution in the value of the objectors’ properties caused by the proposed development (although we doubt the benefit suggested by Mr Beer). In our opinion the covenants do not secure to the objectors practical benefits of substantial value. 86 We have considered whether the prevention of any temporary disturbance which might arise from the construction of two new houses in this location is capable of being a practical benefit of substantial value or advantage. We note that under Section II of Part II of the schedule (restrictions as to user) restriction 6 states: “Nothing shall be done or permitted on any plot which may be or grow to be a nuisance damage grievance or annoyance to the Vendors or to the owners or tenants of any of the other plots or to any adjoining or neighbouring property.” 87 In Shephard Carnwath LJ said at [60] that: “I do not think such a covenant is to be equated with a covenant providing a specific protection from construction disturbance.”
“The primary consideration, therefore, is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which is inherent in any ordinary construction project. There may, however, be something in the form of the particular 21 covenant, or in the facts of the particular case, which justifies giving special weight to this factor.” 88 The objectors have not identified any facts in this case which justifies giving special weight to the possible effects of temporary disturbance. The proposed development is unexceptional in its size, type and likely duration and appears to us to be no different in kind to other developments, both recent and ongoing, on the Estate. We do not think that the prevention of such temporary disturbance constitutes a practical benefit of substantial value or advantage. 89 Section 84(1A) requires that money will be an adequate compensation for the loss or disadvantage (if any) which any person entitled to the benefit of the covenants will suffer from the modification of the covenants. Mrs Hussain at 15 Icklingham Road said that money would not be “an adequate or suitable remedy” but gave no reasons why this should be the case. In our judgment money would in principle be capable of providing adequate compensation for loss of amenity or other disadvantage in this case, but we have found on the evidence that the objectors will suffer no loss or disadvantage that would give rise to such compensation. 90 A number of objectors expressed concern that were the application to be allowed the applicant would receive a substantial windfall gain. It appears that at least some of these objectors based their claim for compensation on the basis that the modification of the covenants and the consequent release of development value would properly entitle them to a negotiated share of such value. This argument was considered in Winter v Traditional & Contemporary Contracts Limited[2008] 1 EGLR 80 where Carnwath LJ, having considered the relevant case law, said at 84[33]: “Certain points can, in our view, be extracted from those cases taken together. First, the basis of compensation under section 84 is the loss caused by a diminution in the value or enjoyment of the objector’s property, not the loss of its financial bargaining position. There is no “hard and fast rule” as to how that loss is to be assessed, but the negotiated share approach is a permissible tool for the Tribunal…”