RICHARD GENNARD v LEICESTER CITY COUNCIL 49 Main Street, Rotherby, Melton Mowbray, LE14 2LP [2025] UKUT 121 (LC)

UPPER TRIBUNAL
LANDS CHAMBER
[2025] UKUT 121 (LC)Case No LC-2024-208
Between
RICHARD GENNARDApplicantLEICESTER CITY COUNCIL 49 Main Street, Rotherby, Melton Mowbray, LE14 2LPRespondent
Before
Mrs D Martin TD MRICS FAAVDate 9 April 2025Catchwords: RESTRICTIVE COVENANT – MODIFICATION – planning permission for conversion of existing outbuilding to create a single storey three bedroom dwelling – restriction against use of land other than as a paddock, garden land or horticultural nursery – objector agreeing that restriction secures to it no practical benefit and causes it no injury – sum to make up for effect of restriction in reducing consideration received when it was imposed – sub-para (ii) of section 84(1) of Law of Property Act 1925 – modification granted without compensation

Introduction

[1]This is an application for modification of a restrictive covenant (“the restriction”) burdening land (“the application land”) forming part of 49 Main Street, Rotherby, near Melton Mowbray in Leicestershire (“the property”). The property is one of six houses erected on 5.41 acres of land which was formerly owned by the objector and known as Rotherby Nurseries (“the nursery land”). On 18 August 1999 the objector sold the nursery land at auction, in two lots, as a development site with outline planning permission for six houses at the front of the site. A restriction was imposed on the remaining nursery land, behind the area where houses were to be built, preventing its use for any purpose other than as a paddock, garden land or horticultural nursery.[2]The applicant purchased the property, which extends to 1.53 acres and includes land from both lots sold at auction, in March 2001. On 30 November 2022 he obtained planning permission for “conversion and extension of an existing outbuilding to create a sustainable single storey three-bedroom dwelling” (“the proposed development”). The existing outbuilding is situated on land behind his house which is burdened by the restriction and the restriction impedes the proposed development.[3]An application was made on 25 March 2024 for modification of the restriction, under grounds (aa) or (c) of section 84(1) of the Law of Property Act 1925, to permit implementation of the planning permission.[4]By section 84(1)(ii) of the 1925 Act, the Tribunal may, if it decides to release or modify a restriction order the payment of a sum of money as compensation by the applicant to an objector “to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.”[5]In its objection to the application the objector did not contend that the grounds for modification were not satisfied, but sought compensation of £116,000 under section 84(1)(ii) to make up for a reduction in the price achieved for the land on 18 August 1999 (the valuation date) due to the imposition of the covenant.[6]A hearing of the matter was listed on 23 January 2025. Evidence was provided by the applicant and by Mr Timothy Snowball, the objector’s Senior Estates Valuation Surveyor. Both parties relied on expert valuation evidence. The applicant’s expert assessed the sum due under section 84(1)(ii) at nil or, at most, £5,000. The objector’s expert assessed the sum at £50,000. On 14 January 2025 a joint application was made to adjourn the hearing for at least 28 days to allow further time for the experts to prepare their joint statement. Having read the reports of the experts I held a case management hearing on 17 January 2025 to propose that, since the Tribunal is an expert tribunal, instead of adjourning the hearing the determination of consideration could be dealt with more proportionately under the written representations procedure, supplemented by a site inspection. This was agreed by the parties.[7]Mr Toby Walker of Allan Janes LLP made written submissions on behalf of the applicant and Ms Sally Anne Blackmore of counsel made written submissions on behalf of the objector. In the submissions on behalf of the objector a new issue was raised concerning the applicant’s previous erection of an outbuilding (the one to be converted in the proposed development) on land burdened by the restriction. An application was made on 20 February 2025 to amend the objector’s statement of case and a response on behalf of the applicant was made on 21 February. After reading the submissions of the parties, on 26 February 2025 I made on order refusing permission to amend because it would have created disproportionate further costs and delay, both to the prejudice of the applicant. It would not have been fair or just.[8]I made a site inspection on 19 February 2025, accompanied by the applicant, Mr Timothy Snowball, and the objector’s valuation expert Mr Richard Cowling. I saw the application land and the location of the two building plots provided as sales evidence in Mr Cowling’s report. Factual background The nursery land

Factual background

[9]The 1999 sales particulars for the nursery land included the following plan, which shows the two lots offered for sale and the cross hatched area over which the restriction was imposed.[10]Lot 1 was described as “About 4.19 acres with current outline planning permission for one 4/5 bedroom house (conversion), one 4 bedroom bungalow (new build), one 4 bedroom house (conversion) and one 3 bedroom house (conversion)”. It included, as shown by numbers on the plan: a former coach house (1), former stable block (2), former stable (3), bungalow for demolition (4), pair of mews cottages (5), brick and asbestos store (6), walled garden (7), workshop (8), oil tank (9), glass houses and polytunnels, boiler house and paved areas (10) and paddock area (11).[11]Lot 2 was described as: “Approximately 1.22 acres with current outline planning permission to demolish the existing semi detached houses and erect two 4 bedroom houses”.[12]Outline planning permission had been granted by Melton Borough Council on 30 July 1998 for “Proposed housing development, conversion of existing buildings and erection of new dwellings”. 22 conditions were attached to the permission, of which condition 19 stated:
“This permission relates to the amended layout which was deposited with the Local Planning Authority on 22nd June 1998. The existing buildings shall be converted to no more than 3 units, and no more than 6 units shall be created on the site as a whole....”
[13]The reason for conditions 18 - 22 was given as “To safeguard visual amenity and the character and appearance of the conservation area.”[14]Comment was made in the sales brochure that “Prospective purchasers may wish to alter the proposed layout or seek to expand the permission.”[15]Prior to the auction, guide prices were provided at £300,000 for Lot 1 and £150,000 for Lot 2, i.e. £75,000 per plot. At the auction sale on 18 August 1999 Lot 1 sold for £400,000 (£100,00 per plot) and Lot 2 for £305,000 (£152,500 per plot).[16]The purchaser of both lots was Andromeda Properties Ltd, a company with which the applicant was involved.

The application land

[17]The plan below shows the extent of land included within the title of the property, which the applicant purchased on 29 March 2001, together with other land also subject to the restriction and land retained by the objector. The property has vehicular access to the land at the rear, the first part of which is surfaced and shared with neighbours. The remainder is a grass track.[18]On 23 October 2000 the applicant obtained planning permission for the erection of two stables at the point marked X on the plan. The building I saw on my site inspection was built in a traditional style of red brick, under a hipped slate roof with an overhang supported on pillars. The front had three openings each with painted double timber doors.[19]In 2019 the applicant made his first application for planning permission to convert the outbuilding to a single storey dwelling, which was refused. An appeal of that refusal was dismissed on 13 March 2020. I have not seen details of the application or the appeal.[20]Planning permission was granted for the proposed development on 30 November 2022. The location of the proposed new dwelling, and separation of the property into two plots, is shown on the site plan below. The new dwelling at the rear would be accessed directly from Main Street along the existing track. The majority of the new dwelling’s plot, including the access track, sit in what was sold as Lot 1 but a small part sits in Lot 2 at the end of the garden of the property.[21]In the planning permission for the proposed development one of the stated reasons for the imposed conditions was:
“4. The site lies within an area where the local Planning Authority would not normally grant permission for residential development and to ensure that the development is in accordance with Policy SS3 of the Melton Local Plan.”

Planning policy

[22]At the valuation date the relevant planning policies for Rotherby were contained within the Melton Local Plan adopted in June 1999 (“MLP 1999”) to cover the period 1991 to 2006. The experts agreed that the policy relevant to the application site was OS2, which stated:
“Planning permission will not be granted for development outside the town and village envelopes shown on the proposals map except for:- (A) Development essential to the operational requirements of agriculture and forestry; (B) Limited small scale development for employment, recreation, and tourism which is not significantly detrimental to the appearance and rural character of the open countryside; (C) Development essential to the operational requirements of a public service authority, statutory undertaker or a licensed telecommunications code system operator; (D) Change of use of rural buildings; (E) Affordable housing in accordance with policy H8 Where such development would lead to the coalescence of existing settlements, planning permission will not be granted.”
[23]I have not been provided with any plan of the Rotherby village envelope on a proposals map within the MLP 1999. However, I have been provided with a policies map from the subsequent MLP 2011-2036, adopted on 10 October 2018, which indicates the boundary of the Rotherby conservation area, shown below. Although this plan reflects the nursery land as developed, I assume that the boundary of the conservation area remained essentially unchanged from 1998, when it was referred to within the reason for conditions 18 – 22 of the outline planning permission (see above at paragraph 13). This boundary is clearly the boundary of development along Main Street and reflects approximately the boundary shown on the auction sales plan, beyond which the restriction was applied.[24]In the MLP 2011-2036 changes were made which enabled planning permission to be granted on “small unallocated sites” such as the application land. Policy SS2 – Development Strategy, provided for rural settlements to accommodate a proportion of the borough’s housing need through new homes on windfall sites within and adjoining settlements. Policy SS3 – Sustainable Communities (unallocated sites) set out the criteria to be met for approval of development on unallocated sites.[25]The Hoby with Rotherby Neighbourhood Development Plan, covering the period 2020 - 2037, stated that there would be support for small-scale development of not more than three dwellings per site within and on the edge of settlement boundaries, subject to a number of criteria. Legal background Legislation

Legal background

[26]Section 84(1) of the Law of Property Act 1925 gives the Tribunal power to discharge or modify any restriction on the use of freehold land on being satisfied of certain conditions.[27]If the applicant is able to establish that the Tribunal has jurisdiction to modify the covenant, the Tribunal must then decide whether to exercise its discretion to do so. If it does, then section 84(1) provides:
“...and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either— (i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or (ii) a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.”
[28]It was agreed between the parties that the Tribunal had jurisdiction to modify the restriction and that compensation for modification should be assessed on the second basis.

The restriction

[29]The restriction in the Charges Register for the property was imposed on lot 1 and lot 2 by transfers between Leicester City Council (Transferor) and Andromeda Properties Limited (Transferee) dated 20 September 1999. The Additional Provisions of the transfer state:
“13.3 The Transferee hereby covenants with the Transferor as follows: (1) Pursuant to Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 and for the benefit of the Transferor’s Retained Land: (A) not to use that part of the Property hatched black on the Plan for any purpose other than as a paddock garden land or horticultural nursery ...”
Authorities[30]It was submitted for the applicant that the decision of the Lands Tribunal (NJ Rose FRICS) in Re Broomhead’s application (2003) LP-7-2001 (unreported) was support for the contention that it would not be just to award any sum in consideration. It concerned a house sold in 1967 with paddock land which was subject to a restriction not to build on it. Planning permission for residential development was granted in 1999. The Member modified the restriction and determined that no compensation was payable under section 84(1)(ii) because, on the evidence, the restriction had no effect on the price paid for the paddock in 1967.[31]Submissions for both parties relied on the more recent decision of the Tribunal (Peter McCrea FRICS FCIArb) in Sheppard v Martin Grant Holdings Ltd [2020] UKUT 171 (LC), where the Member said at [24]:
“24. The question to be addressed is how much more, if anything, the purchaser might have paid had sufficient of the restrictions been removed such to allow the proposed second house on the site, subject to planning permission. But it cannot be assumed, as Mr Bray has done, that planning permission for the extra house would have been in place in 1985. It is the hope of gaining planning permission, and not being prevented from implementing that permission by restrictions, that is the subject of the valuation exercise...”
[32]In Sheppard, planning permission had been received in 2017 for demolition of a garage and erection of an attached two-storey dwelling on land which was subject to a restriction imposed in 1985 impeding that development. As in this case, the single issue was the amount due under section 84(1)(ii). The Member said at [25]:
“25. What must surely also be assumed to have been in the mind of the 1985 vendor and purchaser is the effect on number 5 of the proposed development: it would lose its garage; it would become semi-detached; its garden would become long and narrow; and its smaller drive would still accommodate two cars but only in tandem. In my judgment, the 1985 purchaser would have been willing to pay a maximum of 5%, or £2,625, on top of the purchase price for the benefit of sufficient modification of the restriction to allow a second house to be built as now proposed, subject to planning permission.”
[33]He then went on to consider at [26] to [29] whether that figure should be adjusted to allow for inflation since 1985. This had been done by the Tribunal in some previous cases, but not all. At [30] to [31] he concluded: “30. However, the amount that would represent a “just” award, is a matter of judgment. It is for the objector to provide evidence to support the suggested impact if they can. I have not seen any evidence from them of sales records, whether semi- detached houses sold for less than linked-detached, whether there were any negotiations with Ms Hughes, or indeed any purchaser on the estate, as to the monetary effect of any of the restrictions. It is perhaps not surprising that these records are not available, given the passage of time, but they mean that there is no firm evidential basis for assessing the appropriate sum. With respect to Mr Bray, in my judgment he has valued on an incomplete basis, in only seeking to arrive at a residual value for that part of the land which would be developed. I am also conscious of the benefit which MGH has derived from the restrictions since 1985.[31]Taking all of the above into account, in my judgment the appropriate amount of compensation that the applicant should pay to MGH is the applicant’s longstanding offer of £4,000. “[34]Submissions for the objector relied on Re Bowden’s Application (1984) 47 P & CR 455 and Re O’Byrne’s Application [2018] UKUT 395 (LC).[35]Bowden concerned a plot of land sold in 1964 by a Church of England body for £1,000, subject to a restriction permitting erection of only one house. In 1981 outline planning permission was given on appeal for a bungalow to be built on the same plot. The Lands Tribunal, (Sir Douglas Frank QC, President) determined compensation under section 84(1)(ii), noting a dearth of evidence, at £250. He said:
“...I am satisfied that there must have been some hope of the granting of planning permission in the future and that has been corroborated by subsequent events.”
[36]O’Byrne concerned a planning permission granted in 2017 for conversion of two barns, in an area designated as green belt, into a single dwellinghouse. Implementation of the permission was impeded by a restriction to use as a single dwellinghouse, which had been imposed in 2001 when the farmhouse and buildings were sold to the applicants for £600,000. It had been agreed that compensation would be assessed under section 84(1)(ii). The experts agreed that conversion of existing buildings fell within an exception for which development in the green belt was not inappropriate, and agreed that without the restriction there would have been hope value for conversion in 2001. This was confirmed by the grant of planning permission in 2007 for conversion of one of the barns. The expert for the applicant assessed hope value at £30,000 - £60,000 and the expert for the objector at £75,000 to £100,000. The Tribunal (HHJ Behrens and A J Trott FRICS) determined that the purchase price would have been 10% higher without the restriction to a single dwelling and awarded a sum of £60,000.

Expert evidence

[37]Mr Andrew Robinson BSc(Hons) FRICS, a Director with Andrew Granger & Co, provided an expert report for the applicant. Mr Richard Cowling BSc (Est Man) FRICS, a consultant with King West, provided expert evidence for the objector. They made a joint inspection of the application land on 12 December 2024 and reported their respective opinions of the sum due in compensation under section 84(1)(ii). In their joint statement dated 5 February 2025, the experts explained their differences of opinion over the correct approach to assessing compensation, and over the relevance of the MLP 2011-36.

Approach to assessment of compensation

[38]It was Mr Robinson’s opinion that, since the application land did not meet any of the exceptions to planning policy OS2 in the MLP 1999, everyone in the sale room when the nursery land was sold at auction on 18 August 1999 would have believed that development of six plots was the maximum achievable. The objectors had a responsibility as a public body to obtain “best price” and if they had thought there was scope for a seventh plot they would have applied for it. It was unrealistic to consider that a bidder would have offered any more than an additional £5,000 had the covenant been one with the limited modification sought in this application to permit the implementation of the planning permission.[39]Mr Cowling adopted the general approach set out in Sheppard, which was to assess the hope value at the valuation date of gaining planning permission for the additional house, assuming that no restriction was in place to prevent it. In August 1999 Mr Cowling’s firm had negotiated the sale of two building plots, each with planning permission for a single dwelling, at Nos. 6 and 8 North Hall Drive in the neighbouring village of Gaddesby. One plot of 0.64 acre realised £140,000 and the other of 1.51 acres realised £180,000. The only documentary evidence of these sales was an extract from the notebook of one of Mr Cowling’s colleagues, but Mr Robinson had agreed that the evidence was informative.[40]Based on this evidence, Mr Cowling concluded that in August 1999 a plot at the property, with planning permission, would have had a value of £170,000 had there been no restriction in place. He deducted £10,000 for the estimated cost of obtaining planning permission and assessed the hope value for planning permission in 23 years (the period from 1999 until permission was granted in 2022) by deferring £160,000 for 23 years at 5%. The yield of 5% was selected as the amount of interest that a person might have gained by putting the money into an interest bearing account for that period. This gave him a figure of £52,091, which he rounded down to £50,000, being his opinion of the additional hope value in August 1999 had there been no restriction preventing the proposed development. His opinion was therefore that the value of the nursery land at the valuation date would have been £755,000, on the assumption that the restrictive covenant was modified to permit the construction of the proposed additional dwelling on the application land.[41]In the joint statement, Mr Robinson agreed to provide an alternative opinion using the same approach as Mr Cowling. He had inspected, so far as possible, the two sites sold by Mr Cowling’s firm in 1999 and observed that each site had been developed to provide a fine house, in extensive private grounds, well away from public gaze. He judged them to be better plots than the application land. Mr Robinson assessed the value of the application land in 1999 at £150,000 with planning permission, adjusted down by £50,000 for clearance, contamination clean up (the sales particulars mentioned a possibility of asbestos in the area of the glass houses) and service connections. He then applied a 50% discount to the sum of £100,000 to reflect the risk of not obtaining planning permission for a seventh plot, to reach a figure of £50,000. Alternatively, deferring the sum of £100,000 for 23 years at 5%, as Mr Cowling had done, he reached a figure of £32,000.[42]However, Mr Robinson maintained his opinion that the more correct approach was to assess what extra bid might have been achieved in the sale room on 18 August 1999 if the nursery land had been offered for sale with the prospect of obtaining planning permission for a seventh dwelling and modification to permit its implementation. No record was available of the progression of bids at the sale, but he identified a sum of £5,000 as most likely.[43]Mr Cowling responded that he did not accept Mr Robinson’s application of a discount for contamination and site clearance, since no greenhouses were present on the application site when it was sold, and no evidence had been provided to support a discount for service connection or an abatement of 50% for risk.

Relevance of the MLP 2011-36

[44]It was Mr Cowling’s opinion that the MLP 2011-36, adopted in October 2018, was highly relevant to the assessment because the change of policy had enabled planning permission to be granted on the application land, demonstrating that planning policies evolve and change, which was central to the concept of hope value.[45]Mr Robinson considered that the 2011-36 plan had no relevance because it did not apply at the valuation date.

Submissions

[46]It was submitted on behalf of the applicant that the burden of establishing the effect of the restriction in reducing consideration at the date of sale, and the sum which it would be just for the Tribunal to award to make up for that effect, fell upon the objector. The objector had not discharged that burden because it had been unable to find in its records any evidence in relation to the sale so, as in Sheppard, there was no evidence that the restriction depressed the value of the land sold at auction.[47]Mr Cowling’s approach to identifying the compensation was flawed in working backwards to a valuation of the application site as a building plot separate from the remainder of the nursery land. Moreover, the sales evidence from 1999 appeared (based on the properties there now) to have concerned development of two-storey five-bedroom dwellings, set in a secluded position behind Gaddesby Hall. Those were not good comparables for the proposed single-storey three-bedroom dwelling on the application site.[48]It was submitted further for the applicant that even after the new MLP was adopted in October 2018 the development policy remained restrictive, as demonstrated by the refusal of the applicant’s first planning application in 2019. The prospect of development remained limited until the proposed development was approved in 2022.[49]For the objector, it was submitted that Mr Cowling had “adopted faithfully” the approach set out in Sheppard, while Mr Robinson had undertaken a highly speculative exercise in seeking to imagine himself at the auction in August 1999. As in Bowden the hope of planning permission being granted had been vindicated by subsequent events. Mr Cowling’s figure of £50,000 was 7.09% of the sale price of £705,000 achieved for both lots in 1999 and compared well with the figure of £4,000 awarded in Sheppard, which was 7.6% of the original purchase price of the house when built at £52,500.

Discussion

[50]Previous Tribunal decisions determining a sum payable under section 84(1)(ii) are of very limited relevance to the question I am required to determine. In each of the cited decisions, the Tribunal made a finding of fact, based on the available evidence and the circumstances of the case, to determine the difference which the restriction had made to the sale price achieved. The decisions do not set any precedent for a percentage uplift on the original sale price, nor for any methodology to assess hope value, at the valuation date, of gaining planning permission assuming no restriction. They are fact specific illustrations of circumstances in which compensation under section 84(1)(ii) has been awarded or refused.[51]It is essential to consider what would have been in the mind of the vendor and purchaser at the date of the auction sale, and to bear in mind the relevant planning policies and constraints at that date. In this case the MLP 1999 had been adopted just two months earlier and policy OS2 applied to the application site. None of the area subject to the restriction, including the application land, fell within any of the exceptions for development outside the village envelope. Meanwhile, the outline planning permission offered a significant opportunity for the development of six dwellings, subject to conditions intended to safeguard the character and appearance of the conservation area.[52]Neither expert commented in their report on the large difference between the guide prices for the lots offered for sale and the prices realised at the auction. The two lots were guided at £300,000 and £150,000 respectively and achieved £400,000 (a 33.3% uplift to £100,000 per plot) and £305,000 (a 103% uplift to £152,500 per plot) in the sale room on the night. No records are available of the way in which bidding progressed, but it can be deduced that there was keen interest in both lots with competitive bidding resulting in the purchaser paying a final bid of £5,000 over £300,000 for lot 2. It is tempting to conclude that the objector, as the public body vendor, would have been very pleased with the outcome.[53]Mr Cowling’s opinion of hope value relied heavily on the sale in August 1999 of two plots with planning permission in Gaddesby. A plot of 0.64 acres sold for £140,000 and a plot of 1.51 acres for £180,000. During my site inspection it was apparent that the house on the smaller plot at No.8 North Hall Drive was actually a conversion of an existing house, rather than a new build. This serves to reinforce the lack of detail available to enable a comparative analysis of those sales. However, it is obvious that North Hall Drive is a secluded and tree lined private drive and that the two plots are situated at the end of it, behind Gaddesby Hall. These plots, and the substantial two storey houses on them, have very little in common with the application land and the proposed development there. None-the-less, Mr Cowling concluded that the two sales suggested a price of £170,000 would have been achieved in August 1999 for the application land with its more limited planning permission. I note that this figure exceeds the best price per plot achieved at the auction sale and view it as a highly unlikely value. Mr Cowling then deducted £10,000 for the cost (but not risk) of obtaining that permission and by deferring the net figure for 23 years at 5% he effectively applied a 67.5% discount for risk.[54]I commend Mr Robinson for giving consideration to the approach adopted by Mr Cowling. Using that approach he adopted a value assuming planning permission at £150,000, deducted 33.3% for practicalities and 33.33% for risk to reach the same figure as Mr Cowling at £50,000. Applying a deferment of £100,000 at 5% he reached an alternative figure of £32,000, i.e. a discount of 68% for risk. Although Mr Robinson’s development value of £150,000 is closer to the best figures achieved at the auction, I still view it as an unlikely value for a plot with a more limited planning permission.[55]However, the question to be addressed is whether the purchaser at the valuation date would have foreseen any hope in future of obtaining planning permission for the proposed development sufficient to justify the payment of additional value. That hope would depend on the likelihood of changes being made in future to the recently adopted planning policy to allow some limited development on land outside the village envelope.[56]It was not until policy changes were made in the MLP 2011-2036, adopted 19 years after the valuation date, that there was real hope of development for windfall sites adjoining settlements. But, even after those changes were adopted, the applicant’s first application in 2019 was refused, and his appeal of that refusal was dismissed in 2020. So, whilst there was a better hope of obtaining planning permission, it remained a hope rather than a probability.[57]In this case the restriction was imposed on that part of the nursery land which lay outside the village envelope. It aligned with recent adopted planning policy in place at the valuation date and may even have been a reinforcement of it. An outline planning permission was in place on the remaining land within the village envelope and, as stated in the sales brochure, prospective purchasers could liaise with the planning authority to alter the proposed layout or seek to expand the permission. However, under the adopted planning policy, prospective negotiations for alteration or expansion of the permission would have been confined to land within the village envelope. I consider that prospective purchasers at the auction were extremely unlikely to have foreseen any hope of future development outside the village envelope, sufficient to place additional value on it.[58]Moreover, the sale prices achieved for the two lots were so much higher than the suggested guide prices that I see no evidence of the restriction having had any effect in reducing the consideration received by the objector. In my judgment no sum is due to the objector under section 84(1)(ii) for modification of the restriction to permit implementation of the proposed development.

Determination

[59]I am satisfied, as agreed between the parties, that ground (aa) of section 84(1) is made out and that I have discretion to modify the restriction which impedes a reasonable use of the application land and does not secure to the persons entitled to the benefit of it any practical benefits. It follows, as agreed between the parties, that ground (c) is also made out because the proposed modification will not injure those persons. I have taken into account the development plan and the ascertainable pattern for the grant or refusal of planning permissions in the area.[60]The following order shall be made: The restrictions in the Charges Register for 49 Main Street, Rotherby, Leicestershire LE14 2LP shall be modified under section 84(1)(aa) of the Law of Property Act 1925 by the insertion of the following words:
“PROVIDED that the development permitted under the grant of planning permission on 30 November 2022 by Melton Borough Council under reference 22/01095/FUL and subject to the conditions attached thereto may be implemented in accordance with the terms, details and approved drawings referred to therein. Reference to the above planning permission shall include any subsequent planning permission that is a renewal of that planning permission and any other matters approved in satisfaction of the conditions thereto.”
Mrs D Martin TD MRICS FAAV 9 April 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.