The following cases are referred to in this decision:

Truman, Hanbury, Buxton & Co Limited’s Application [1956] 1 QB 261

Re Ghey and Galton’s Application [1957] 2 QB 650

Re Diggens’ Application (No.2) [2001] 2 EGLR 163

Stannard v Issa [1987] AC 175

Re Marcello Development Limited’s Application [2002] RVR 146

Re Bradley Clare Estates Limited’s Application (1988) 55 P&CR 126

Re Bass Limited’s Application (1973) 26 P&CR 156

Re Collins’ Application (1975) 30 P&CR 527

Shephard v Turner [2006] 2 P&CR 28

The following further cases were referred to in argument:

Driscoll v Church Commissioners for England [1957] 1 QB 330

Gee v National Trust [1966] 1 WLR 170

Re Henman’s Application (1972) 23 P & CR 102

Re Martin’s Application (1989) 57 P & CR 119

Re Wards Construction (Medway) Ltd’s Application (1994) 67 P & CR 379

Re Davis’s Application (1957) 7 P & CR 1

Re Hayes’ Application [2009] UKUT 115 (LC)

DECISION

Introduction

1. Mr David Hawkins and Mrs Julie Hawkins (“the applicants”) are the freehold owners of Walnut Acre, Tandridge Road, Warlingham, Surrey CR6 9LS (“the application land”).

2. The application land was previously owned with other land to the east which was sold on 5 August 1977 to Mr Robert Park and Mrs Susan Park. The land which was sold was already developed by a house known as Highlands and the transferees obtained from the transferors the benefit of the following restrictive covenants (“the restrictions”):

“The transferors to the intent that the burden of this covenant may run with and bind the [application land] and every part thereof for the benefit of [Highlands] hereby covenant that:

(i) Not more than one single storey bungalow shall be erected on the [application land];

(ii) After the sale or transfer by the transferors of the [application land] (other than a sale or transfer to the child or children of the transferors) no such bungalow (unless already erected by the transferors or their child or children) shall be erected upon the [application land] except in a position to be approved by the transferees and in accordance with drawings first submitted to and approved by the transferees or their successors in title such approvals not to be unreasonably withheld.”

3. The transferors proceeded to build a detached bungalow (known as Walnut Acre) on the application land in1979.

4. Full planning permission to demolish the existing bungalow and erect a two-storey dwelling with associated garaging and landscaping was granted subject to conditions on 1 May 2012. The applicants purchased the application land in October 2012 with the benefit of this planning permission. They obtained approval for non-material amendments to the planning permission on 27 December 2012, including the insertion of Velux windows in the roof slope facing Highlands. Approval of details was obtained on 31 January 2013.

5. On 28 July 2014 the applicants made an application under section 84 of the Law of Property Act 1925 (“the 1925 Act”) to discharge or modify the restrictions under grounds (a) and (aa).

6. On 10 September 2014 Dr Brendan Whittle and Mrs Glynis Whittle (“the objectors”), the freehold owners of Highlands, objected to the application.

7. Mr Simon Sinnatt of counsel appeared for the applicants and called Mr Robert Park and Ms Clare Greig as witness of fact; and Mr Paul Allen Dip Arb (RFS), MArbor.A, MICFor, Head of Planning and Development at Marishal Thompson, and Mr Julian Black BSc Hons, Dip (Urb Des), MRTPI, a partner in Kember Loudon Williams LLP, as expert witnesses.

8. Mr Ian Ridd of counsel called Dr Brendan Whittle as a witness of fact. Mrs Glynis Whittle produced a witness statement but was unable to attend the hearing due to illness. Dr Whittle adopted Mrs Whittle’s statement as his own.

9. I made an accompanied site inspection of the application land, Highlands and the surrounding area on 2 October 2015.

Facts

10. I find the following facts from the evidence, the parties’ agreed statement and my site inspection.

11. The application land is located in a well established and exclusive residential area comprising detached dwellings on substantial plots. It is situated between Highlands to the east and Memphis to the west, both two-storey detached houses, close to the junction of Tandridge Road and Ridley Road. The application land has an area of approximately 0.2 hectares. The bungalow on the application land has a flank wall facing Highlands approximately 7m west of the boundary between the two properties. The sloping roof of the bungalow has a ridge height of 4.82m. The ridge is at right angles to the said boundary. At the rear of the bungalow is a conservatory and to the front is a detached double garage with a sloping roof running parallel to the boundary with Highlands and with a ridge height of some 4.17m above ground level. The garage is closer than the bungalow to the boundary being some 1.3m to the west. At their nearest points the house at Highlands is 16.5m from the bungalow and 7.5m from the garage.

12. The boundary between the application land and Highlands comprises a Golden Leyland Cypress (“leylandii”) hedge with a height in excess of 3m. The hedge is formed around a metre high chain link fence. The hedge is divided into two approximately equal lengths between which are seven trees of various ages, height and spread as identified in Mr Allen’s expert report.

13. The proposed two-storey house on the application land, for which planning permission was granted in 2012, would be closer (4.2m) to the boundary with Highlands than the existing bungalow (7m) but further away than the existing detached garage (1.3m) which is to be demolished. At its nearest point the proposed house would be 13m from the house at Highlands.

14. The ground floor accommodation of the proposed house along its eastern frontage (fronting Highlands) would comprise an integral double garage with a utility room at the rear and an orangery further to the south. There would be window in the utility room as well as a back door and windows in the orangery.

15. At first floor level on the eastern frontage there would be three bathrooms (two en suite) and a landing, all of which would have above eye level Velux windows. To the rear of the property would be a terrace to the master bedroom, the eastern end of which would face Highlands.

16. At second floor level on the eastern frontage would be a guest bedroom but this would have no windows facing Highlands.

17. At the front of the property would be bay windows at ground and first floor levels, the eastern sides of which would face (obliquely) Highlands. The accommodation would comprise a family room at ground floor level and bedroom 4 at first floor level.

18. The proposed house would have a complex roof structure. Based upon the approved revised plans and elevations and the evidence of Ms Greig, the eaves height of the eastern elevation would be 4.575m above ground level. The roof would slope away from the boundary with Highlands to a 5m long ridge at a height of 8.425m. Set further back would be the main roof rising to a 10m long ridge at a height of 9.725m. To the rear of the property would be a 2.5m long ridge (being the roof over the dressing room to the master bedroom) at a height of 8.625m sloping down to 6m at the rear of the property. The eastern elevation would be brick with stone trimmings and the roof covering would be of natural slate.

19. The house at Highlands was constructed in 1956. The application land originally formed part of its grounds as did the property to the east, now developed by a house called Alstonefield. Most of the dwellings in Tandridge Road are oriented north to south. Highlands is an exception and is oriented north east to south west. The rear elevation of Highlands therefore looks towards the boundary with the application land at an angle of some 45 degrees.

20. The rear garden of Highlands is laid to lawn with a closely planted group of seven mature ash and sycamore trees at its centre. There are further groups of trees along the southern boundary which screen Highlands from the properties in Tydecombe Road and along its western boundary with Alstonefield.

21. At the rear of Highlands is a patio with access from a conservatory. The roof of the bungalow and the garage on the application land are visible above the hedge. At first floor level the western window in the main bedroom looks directly towards the application land. The roof of the bungalow, the garage and the conservatory are visible as well as the house at Memphis, further to the west. There are similar views from the other bedrooms along the south west frontage of Highlands albeit at a slightly more oblique angle.

Evidence for the applicants

22. Mr Park is the original covenantee of the restrictions. He and his wife purchased Highlands in August 1977. The application land was retained by the vendors who originally intended to build a house on it. Mr Park wished to ensure that the spacious feel of his garden was maintained and that any building did not obstruct the afternoon sunlight, overlook his property or affect its outlook. He therefore negotiated with the vendors that they would covenant only to build a bungalow on the application land. At the time Mr Park purchased Highlands there were no boundary features between it and the application land. Mr Park agreed that he would fence the boundary and plant a leylandii hedge along his side of the fence. He agreed informally to maintain the hedge at a height of no more than 6ft.

23. Mr Park said that when he bought Highlands the majority of properties along Tandridge Road were located on large plots well separated from neighbouring properties. By the time he left in October 1992 the area was more built up with large plots being divided and houses demolished to accommodate larger properties.

24. From Mr Allen’s expert report, a photograph of the leylandii hedge as it is now and a recent visit to the application land Mr Park concluded that Highlands no longer enjoyed the same open aspect and spacious environment that it had when the restrictions were imposed. He failed to see how the restrictions continued to benefit Highlands.

25. Mr Allen described the present vegetation on the application land, Highlands and the boundary between them. He also estimated what that vegetation would have been like when the restrictions were imposed in 1977. He concluded that during the intervening years dense tree and shrub vegetation had grown up both through deliberate planting and self-seeding. The height of such vegetation ranged from 4.15m (the leylandii hedges) to at least 17m in the case of the ash and sycamore trees. In his opinion Mr Allen said that no view as originally intended still existed over the application land from within or from the rear elevation of Highlands.

26. Ms Greig referred to two plans produced by the applicants’ architects. The first plan showed the footprint of the existing bungalow, the footprint of Highlands and the boundary between them. The second plan showed the footprint of the proposed house on the application land in relation to Highlands and the boundary. Both plans showed a section taken between the most easterly bedroom window at Highlands (the closest to the application land) and the ridge of the roof of the existing bungalow. They also showed the comparative eye level view, both existing and proposed, of a person standing on the patio outside the conservatory of Highlands and looking towards the application land.

27. Ms Greig said that the architects had told her that the ridge of the existing bungalow’s roof was 4.82m above ground level whereas “the proposed new dwelling would measure 8.425m above ground level.”

28. Ms Greig said that the point on the patio from where the comparative view had been taken was the point at which the proposed new dwelling would be most visible. The screening provided by the hedge and trees meant that only the roof of the proposed house would be visible although she agreed in cross-examination that there would be “a lot more roof to look at”.

29. The only windows in the proposed house that would face Highlands were high level Velux windows at first floor level. These would not overlook Highlands and Ms Greig concluded that the impact of the proposed new development appeared to be minimal.

30. Mr Black said that his report considered whether the restrictions had outlived their usefulness. In cross-examination he said he had considered the usefulness of the restrictions from a town planning perspective and not from the viewpoint of the objectors. He acknowledged that town planning was a separate and distinct legal regime to that of restrictive covenants.

31. Mr Black said he had been instructed to undertake an independent planning assessment of the character and condition of the application land and its surroundings and that he had reviewed the physical changes in the character of the surrounding residential area since the imposition of the restrictions to establish whether those restrictions had outlived their usefulness. Apart from physical changes to the built environment in and around Tandridge Road Mr Black also considered changes to the natural environment, boundary trees and hedges and the sense of enclosure that these created.

32. Mr Black reviewed the setting and planning history of the application land and its relationship to Highlands. He identified the “central issue” as being “whether the covenant is necessary and/or has outlived its usefulness.” He concluded that “the maintenance of the covenant is unreasonable in planning and in environmental terms.” There was a substantial distance between Highlands and the proposed house such that there would be no material or meaningful loss of light, no loss of privacy and no question of the new building overbearing Highlands. The views to the south from Highlands would be largely maintained and the existing views would not be materially harmed due to the long established and dense hedge and tree screen that had grown up since the covenants were imposed.

33. The first floor terrace at the rear of the proposed house was oriented southwards towards to bottom of the garden of the application land. The eastern end of the terrace faced Highlands but any direct view of that house was blocked by the proposed building. The only view from the terrace would be of the existing hedge and other vegetation.

34. Looking at the changes to the neighbourhood since 1977 Mr Black said there had been a “sea change” in the character of the estate with the introduction of larger replacement dwellings and marked increases in density with single plots being redeveloped by two or more houses or with additional houses being built on surplus garden land. The scale and massing of development had moved towards very large executive homes and Mr Black gave several examples. The number of bungalows on the estate had been reduced such that the bungalow on the application land was one of the very few remaining in the vicinity of Tandridge Road. The bungalow at Walnut Acre lacked architectural interest and contributed little to the character and visual amenities of the area. Mr Black concluded that “the restrictive covenant imposed in 1977 has now outlived its usefulness and that it seems unreasonable to maintain the covenant over Walnut Acre.”

35. In cross-examination Mr Black agreed that were the application to succeed the objectors would have “a lot more roof to look at” which might be a matter of some significance to them (although he noted in re-examination that the objectors already had a view of roofs to the west). He said that the view from Highlands might possibly be changed adversely from the perspective of the objectors but not in planning terms.

Evidence for the objectors

36. Dr Whittle adopted the witness statement of his wife, Mrs Glynis Whittle. He said the restrictions were not obsolete and remained as important to them as they had been to Mr Park when he imposed them in 1977.

37. The continuing benefits of the restrictions to Highlands were:

(i) it continued to be set in an open and spacious site;

(ii) it enjoyed excellent views over the application land and the outlook beyond;

(iii) there was virtually unrestricted afternoon sunlight to the garden;

(iv) it was not overlooked to the front or the rear; and

(v) it enjoyed a sense of being in an area of low density development.

38. Dr Whittle said that there had been little change in the surrounding area since they purchased Highlands in 1996. A bungalow on the application land did not look out of place and was one of several in the near neighbourhood. The trees, shrubs and hedges in Highlands did not affect the sight lines from the upstairs windows and did not diminish the available sunlight to the house and patio. Should the proposed house be built there would be a significant light reduction to the house and garden at Highlands. It would also dominate the views from the rear of the house since it would be considerably higher than the existing bungalow.

39. Dr Whittle denied that the vegetation in the garden and along the boundary of Highlands cast a shadow over the whole of the garden. He said that the patio was exposed to full sunlight in summer from midday to 5.30pm.

40. Dr Whittle denied that Alstonefield, the house to the east, overlooked Highlands. The windows of Alstonefield that faced west were obscure glazed while the windows in its rear elevation faced the garden and did not affect Highlands because of its orientation away from Alstonefield.

41. The objectors were aware of other nearby properties which had the continued benefit of similar covenants and which helped secure the secluded and spacious atmosphere of the area.

42. The objectors did not object to the planning application on the application land (made by the applicants’ predecessors) because Mrs Whittle, as a local councillor, considered she had a conflict of interest and did not want to take an unfair advantage. In any event the planning regime, being a public law matter, was separate from the objectors’ private law rights under the restrictions.

43. Dr Whittle concluded that the proposed development would dramatically and adversely affect the objectors’ amenity, view and environment and the application should be refused.

Submissions for the objectors

44. Mr Ridd submitted that ground (a) had not been satisfied and that the restrictions ought not to be deemed obsolete. There was no evidential basis for the suggestion that the character of the application land had changed. The applicants said that the character of the neighbourhood had changed since 1977 but it was not true that Walnut Acre was now the only bungalow in the vicinity. Mr Black had accepted that 8% of the properties in the local area were bungalows (rising to 13% if one included bungalows with rooms in the roof). The applicants had failed to show the sort of radical changes in the wider neighbourhood that were necessary to satisfy ground (a).

45. For a restriction to be deemed obsolete the applicant had to establish that its original purpose could no longer be served, per Romer LJ in Truman, Hanbury, Buxton & Co Limited’s Application [1956] 1 QB 261 at 272. There was no basis to say that the original purpose of the restrictions could no longer be served. They were modern restrictions and were clear in their terms: only a single storey bungalow could be built on the application land. The limitation of the neighbouring property to a single storey development ensured that Highlands maintained its amenity, privacy and lack of visual intrusion. That purpose had not changed. In fact the type of changes in the neighbourhood that Mr Black had identified - increased residential density and more two-storey dwellings - were the very ones that the restrictions were intended, and continued, to protect Highlands from. If anything those changes made the restrictions more valuable to the objectors.

46. In his evidence Mr Park had accepted that it was important and significant to him to protect the amenity of Highlands by the imposition of the restrictions and that he had wanted to control the height and siting of any development on the application land. He had agreed that a two-storey development would alter the outlook from Highlands and that he had wanted to control that. Those original purposes continued today. The proposed house would be far more visible from Highlands than the existing bungalow and would dominate Highland’s garden. The outlook from Highlands would be significantly and detrimentally affected.

47. The existence of planning permission for the redevelopment of the application land was not determinative. As Lord Evershed MR said in Re Ghey and Galton’s Application [1957] 2 QB 650 at 659:

“… what has to be done, if an applicant is to succeed, is something far more than to show that to an impartial planner the applicant’s proposal might be called, as such, a good and reasonable thing: he must affirmatively prove that one or other of the grounds for the jurisdiction has been established; and, unless that is so, the person who has the proprietary right, as covenantee, of controlling the development of the property as he desires and protecting his own proprietary interest, is entitled to continue to enjoy that proprietary right.”

48. Turning to ground (aa) Mr Ridd submitted that in considering whether, by impeding some reasonable user, the restrictions secured for the benefit of the objectors any practical benefits of substantial value or advantage, regard should be had to the views of the Lands Tribunal, Mr P H Clarke FRICS, in Re Diggens’ Application (No.2) [2001] 2 EGLR 163 at 168 [67]:

“A practical benefit is secured by a restriction when it flows directly from the observance of that restriction. It is the prevention of the consequences of breach of a restriction that may secure a practical benefit.”

49. Under ground (aa) it did not matter whether the original purpose of the restrictions was still being achieved; what mattered was whether at the time of the application there were any practical benefits of substantial value or advantage to the objectors (see Stannard v Issa [1987] AC 175 per Lord Oliver at 188). In Re Marcello Development Limited’s Application [2002] RVR 146 the President of the Lands Tribunal, George Bartlett QC, said at 152 [37]:

“The adverse effects that are claimed are not, it seems to me, ones which the restrictions were designed to prevent. For the purpose of applying ground (aa), however, this does not matter. The practical benefits on which reliance can be placed are any that in fact exist, whether or not it was a purpose of the restriction to confer them. It does not matter that they are incidental to such purposes.”

50. Mr Ridd said that even if the Tribunal accepted the applicants’ arguments about the limited purpose of the restrictions it was sufficient to defeat ground (aa) for the objectors to show any substantial practical benefit, whether that was related to the original purpose or not.

51. Mr Ridd submitted that the question of whether the restrictions secured substantial practical benefits to the objectors was one of common sense. The proposed building on the application land was a two-storey house. It would replace a single-storey bungalow and would be visually intrusive on the outlook from Highlands. It would seriously interfere with the objectors’ amenity and enjoyment of their property and the application should be refused under ground (aa) also.

Submissions for the applicants

52. Mr Sinnatt submitted that the parties had agreed that the purpose of the restrictions was fourfold:

(i) to preserve the spacious feel of Highlands’ garden;

(ii) to avoid interference with afternoon sunlight to Highlands;

(iii) to prevent the dwelling on the application land dominating and overlooking Highlands; and

(iv) to preserve the view from Highlands garden.

53. When the restrictions were imposed there was no boundary between the application land and Highlands; it was all an open garden without any features, just one or two trees. Mr Park had agreed informally with the vendor to plant a leylandii hedge and maintain it at 6ft high. The boundary treatment could have been left as a chain link fence and a few trees. But that had changed over the years. There was now a 3m high hedge between the properties together with a mature tree screen. Those changes had materially altered the view over the application land from Highlands.

54. Unlike Mr Black the objectors had not engaged in any rigorous examination of changes in the character of the neighbourhood. Mr Black had identified changes in the type and density of residential development and Mr Park had given direct personal evidence of how much the area had been built up over the years.

55. The test under ground (a), which was the applicants’ primary case, was that the restrictions “ought to be deemed obsolete”. That meant that it was not enough for the objectors to show that there remained one aspect of a view over the application land that was secured by the restrictions when every other purpose the restrictions previously fulfilled was now redundant. Since the restrictions were imposed the bungalow on the application land had been built, Alstonefield had been built to the east of Highlands and a mass of trees, shrubs and hedges had grown such that on the day of the site inspection, a particularly sunny day, the whole of Highlands’ garden was in shade even at midday. If the view to the west of Highlands across the application land was so important why had the objectors allowed the vegetation to become so overgrown and the hedge to grow to 3m? The objectors had made, or allowed, changes that meant the original purpose of the restrictions could no longer be fulfilled. All meaningful views from the patio had been entirely blocked; all that was left was a view of the sky. One had to look obliquely from the bedrooms to see across the application land and all one presently saw was a mass of ugly concrete roof tiles; not just the bungalow at Walnut Acre but the house at Memphis beyond. That was not a beautiful view or a view that the restrictions were imposed to preserve. Mr Park said that the restrictions had been imposed to protect the views to the south west not those over the property to be built on the application land.

56. Mr Sinnatt relied upon a passage in Preston & Newsom’s “Restrictive Covenants” (10^th Edition) at 13-13 which stated, in reference to the decision in Re Bradley Clare Estates Limited’s Application (1988) 55 P&CR 126:

“However, if all objectors have themselves made changes which have destroyed the objective for which the covenant was taken they cannot be surprised if the Tribunal holds that the restriction is obsolete and declines to award compensation.”

Mr Sinnatt said that, by analogy, the objectors had allowed their garden to become so full of trees and shrubs as to restrict the previous sense of openness and view that the wide open lawn allowed and had thereby rendered the restrictions obsolete.

57. Mr Sinnatt submitted that by reason of changes in the character of the property and the neighbourhood the restrictions ought to be deemed obsolete. Ground (a) was therefore satisfied.

58. Turning to ground (aa) Mr Sinnatt submitted that there was a “significantly lower threshold” to be satisfied than under ground (a). He considered ground (aa) by reference to the well-known questions set out by the Tribunal in Re Bass Limited’s Application (1973) 26 P&CR 156. He said that the proposed house, for which planning permission had been obtained, and which was located in an established residential area, was a reasonable user which was impeded by the restrictions. The crucial question under this ground was whether, by impeding that reasonable user, the restrictions secured practical benefits to the objectors and, if so, whether those benefits were substantial.

59. Mr Sinnatt considered the benefits which had been identified. The proposed development did not impact upon the sense of spaciousness and light at Highlands. Highlands was well separated from the proposed house, and its positioning and layout were entirely in line with the current character of residential development in the neighbourhood as Mr Black’s planning evidence had established. The proposed house did not overlook Highlands other than from the balcony to the main bedroom and the side of the bay window to the front elevation, both of which were of marginal effect. There would be no loss of privacy to Highlands caused by the new house.

60. Much of the evidence was concerned with the view from Highlands across the application land. Mr Sinnatt submitted that although this was a significant issue under ground (a), its importance “falls away” under ground (aa). As a matter of fact and degree the view from Highlands could not realistically be described as being of substantial value. The existing view along the established building line was of tiled roofs. All that would change if the application was granted would be the replacement of a vista of roofs by a second residential storey, the roof of which had been carefully designed to minimise any visual impact on Highlands.

61. The objectors had produced no expert evidence to show that they would suffer a loss of sunlight or daylight. Mr Black’s planning evidence showed that there would be no adverse effect caused by the proposed house given its separation from Highlands. The growth of the trees and shrubs in Highlands and of the hedge along the boundary with the application land had already affected the amount of sunlight available to Highlands.

62. An inspection of the plans of the proposed development on the application land showed that it would not overlook Highlands. In any event Highlands was already overlooked by the neighbouring property to the east (Alstonefield). Mr Sinnatt said that any concern that the applicants would be free to revise the planning permission and introduce upper floor windows facing Highlands could be alleviated by the Tribunal imposing an appropriate further provision restricting such amendments under section 84(1C) of the 1925 Act.

63. Mr Sinnatt said that issues of amenity (except that of the view) had been considered as part of the planning process and the local planning authority was satisfied that the proposals did not prejudice or harm the objectors in any way. Planning was not “a different species” to restrictive covenants and the planning process looked at the same issues as Mr Park sought to protect when the restrictions were imposed. The Tribunal had to consider planning matters under section 84(1B) of the 1925 Act. In this case what was highly and specifically relevant, said Mr Sinnatt, was the fact that the objectors had not objected to the planning application for the redevelopment of the application land. He said that, contrary to what he described as the novel assertion in Mrs Whittle’s witness statement, there was nothing in the code of conduct for Tandridge District Council councillors that would have prevented Mrs Whittle from making such an objection provided she had declared an interest.

64. Mr Sinnatt submitted that if the Tribunal was against him and found that the restrictions did secure practical benefits for the objectors, any such benefits would not be substantial. The proposed development was in character with the neighbourhood and would not have any adverse impact on Highlands due to the extensive shielding of the view by the mature tree and hedge screen. Any practical benefit due to the restrictions was marginal and did not justify the award of any compensation.

65. Mr Sinnatt also submitted that the restrictions did not prevent the applicants from redeveloping the application land with a larger bungalow with a higher ridge height, subject to the approval of the beneficiaries of the restrictions (which could not be unreasonably withheld). The existing bungalow, built in the 1970s, had a shallow roof. Consideration should be given to what the applicants could do by way of redevelopment without the need to discharge or modify the restrictions.

Conclusions: ground (a)

66. A restrictive covenant will not be deemed obsolete if it continues to fulfil its original purpose. That purpose must be assessed objectively, although in this application I had the benefit of hearing evidence from the original covenantee, Mr Park. Mr Park’s subjective intention was exactly as one would have expected from reading the restrictions themselves. He said that when insisting upon the restrictions he was concerned that a two-storey house on the application land would affect the spacious feel of his garden at Highlands and might restrict afternoon sunlight and that he wanted to ensure that any new building would be a single-storey bungalow to avoid Highlands being dominated and overlooked.

67. Mr Park also intended there to be a substantial boundary hedge between Highlands and the application land. He first erected a chain link boundary fence and then planted a fast growing leylandii hedge with the agreement of the covenantor, Mr Osborne. Mr Park apparently agreed to maintain this hedge at a height of 6ft.

68. It seems to me that the only difference between the situation when the restrictions were imposed and the present day is the growth of the hedge beyond its anticipated height from 2m (6ft) to 3m and the inevitable growth over time of the other trees and shrubs in both gardens. But in my opinion the key purpose of the restrictions was to avoid Highlands being dominated and overlooked by a two-storey house close to its boundary. The character of the application land has not changed since the restrictions were imposed and the bungalow at Walnut Acre constructed. I do not think that the changes in the neighbourhood described by Mr Black have any bearing on this main purpose of the restrictions.

69. The applicants argue that the proposed house would not overlook Highlands. I think this is correct insofar as the amended plans are concerned, albeit there would be some minor overlooking from the balcony to the main bedroom and from the bay window at the front of the property. There are also four high level Velux windows facing Highlands (the original design only had one). These would not overlook Highlands in any meaningful sense.

70. The restrictions continue to prevent the construction of a two storey dwelling and whereas the proposed house has been designed to minimise any overlooking, it would be substantially higher than the existing bungalow. I acknowledge that the applicants have designed the roof of the proposed house in such a way as to minimise its impact upon Highlands but, as both Ms Greig and Mr Black accepted in cross-examination, there would be “a lot more roof to look at”. It would be a dominant feature of the view from Highlands.

71. In my opinion the restrictions continue to fulfil a major part of their original purpose and ought not to be deemed obsolete. The application therefore fails on ground (a).

Conclusions: ground (aa)

72. I deal firstly with three preliminary points. The applicants apparently maintain that by impeding the proposed user the restrictions are contrary to the public interest since Mr Sinnatt says in his skeleton argument that the applicants “still assert that in terms of planning, maximising the use of available land is becoming increasingly important.” That is all that is said in support of the applicants’ case on this point. In Re Collins’ Application (1975) 30 P&CR 527 at 531 the President of the Lands Tribunal, Douglas Frank QC, said:

“In my view for an application to succeed on the grounds of public interest it must be shown that that interest is so important and so immediate as to justify the serious interference with private rights and the sanctity of contract”.

In my opinion the circumstances of the present case, where the restrictions prevent an existing bungalow being redeveloped by a house, are wholly insufficient to sustain a public interest argument under section 84(1A)(b) of the 1925 Act.

73. The second preliminary point relates to Mr Ridd’s argument that the continued existence of the restrictions does not impede the reasonable user of the application land since the restriction to a single-storey bungalow enables reasonable use to be made of it. The “reasonable user” referred to in ground (aa) is the proposed user (the house) and not the existing user (the bungalow). It is axiomatic that a restriction can never impede a user which it permits. The leading authority on ground (aa) is the Lands Tribunal decision in Re Bass Limited’s Application where the member, J Stewart Daniel QC, in setting down seven questions to be asked refers in question 1 to whether the “proposed user” is reasonable. I reject Mr Ridd’s submission on this point, which he fairly conceded was not his strongest argument. The proposed user has detailed planning permission and is in keeping with the residential development in the area. In my opinion the proposed house is a reasonable user which is impeded by the restrictions.

74. My third preliminary point concerns the size of the proposed development which the parties referred to throughout as being a two-storey house. There are in fact three proposed floors of accommodation: ground, first and second. The second storey has two dormer windows in the roof facing to the rear (south) of the proposed development. In the terminology used by Mr Black to describe the type of dwellings in the vicinity of the application land, the proposed house is two and a half storeys. I also note that Ms Greig refers in her evidence to section AA on the plans attached to her witness statement which shows the respective heights of the existing bungalow (4.82m) and the proposed house (8.425m) above ground level. But section AA does not pass through the third floor of accommodation; it only shows the height of the roof above the first floor. There is another (higher) roof behind this which is visible from “View A” on Ms Grieg’s plans, being the view from the patio to the rear of Highlands. (The roof structure is best shown in this connection in drawing number 960/51.) In my estimation the highest point of the proposed roof will be approximately 9.725m above ground level and 4.905m (16ft) higher than the ridge of the existing bungalow.

75. I have already answered the first two questions contained in Re Bass Limited’s Application in the affirmative (see paragraph 73 above). The third question is whether by impeding the proposed user the restrictions secure practical benefits to the objectors. As both Ms Greig and Mr Black conceded in cross-examination there would be a lot more roof to look at if the proposed development were to proceed (and more than was suggested in Ms Grieg’s evidence). One of the purposes of the restrictions was to prevent the building on the application land from dominating Highlands. Whereas the existing bungalow is visible from the patio, the conservatory and the bedrooms of Highlands, the proposed development would introduce a significantly larger structure. The ability of the objectors to prevent such a development is, in my opinion, a practical benefit.

76. The key question in this application is whether that practical benefit is of substantial value or advantage to the objectors. The question of value is one that cannot be answered without further expert evidence; the parties having agreed before the hearing that, if relevant, they would appoint a joint valuation expert to consider the issue. I therefore confine myself to considering whether the practical benefits are of substantial advantage to the objectors.

77. What constitutes a “substantial” advantage was considered in Shephard v Turner [2006] 2 P&CR 28. Carnwath LJ said at 621 [23] that the “safer guide” was the meaning as “considerable, solid, big.” He continued:

“However, I would prefer not to seek a substitute for the statutory language, nor to seek a degree of precision which Parliament has avoided. It was no doubt thought appropriate to leave it to the Tribunal, as an expert body, with the statutory function of promoting ‘uniformity of decision’ …. to apply the section in a commonsense way.”

78. Mr Sinnatt suggested that part of the factual matrix against which the substantiality of the practical benefits should be considered is what the applicants could develop without being in breach of the covenants. It is apparent that the applicants intend to re-develop the application land and if they are unsuccessful in this application they may decide to develop the site in such a way as to not to be in breach of the restrictions. Mr Sinnatt submitted that they could develop a bungalow with a higher roof but, of course, that would still be subject to the objectors’ approval of the siting of such a bungalow as well as their approval of the drawings of any proposed development. The objectors could not unreasonably withhold their consent to such plans but, in my opinion, the question of reasonableness will be judged against the benefits secured to the objectors by the restrictions. It would be wrong to assume that the applicants could develop a new bungalow on the application land, the visual effects of which were similar to those of the house now proposed. I do not accept that an alternative development would be of comparable bulk and visual impact to the consented scheme.

79. I accept that the applicants have designed the proposed house to minimise its impact on Highlands. The eastern elevation has a hipped roof which slopes away from Highlands to a flat roof and to a further pitched roof reaching its maximum height 5m west of the ridge closest to the boundary. There is minimal overlooking of Highlands according to the latest approved amended drawings.

80. The planning authority have accepted that the proposed development does not adversely affect the amenity of Highlands, but that is not decisive in this context. Mr Black’s evidence was predicated on a town planning perspective as he readily acknowledged. When he was asked about the change in the outlook from Highlands if the application succeeded and whether looking at a larger roof might be a matter of significance to the objectors, he answered “to them, yes.” Later he was asked whether the view from Highlands would change adversely if the proposed development were to proceed and he replied “not from a planning viewpoint. Possibly from the owner’s viewpoint.” That is the key point; this is not a planning application but an application to discharge or modify restrictions which afford proprietary protection to the objectors’ amenity and that of their successors. What matters is the effect on the persons with the benefit of the restrictions and a test of amenity is not one determined by planning policy.

81. Planning matters are relevant when considering an application under section 84 of the 1925 Act and are specifically to be taken into account under section 84(1B) to which I have had regard. Mr Black has accurately recorded the various developments which have taken place in the vicinity and I accept that there has been some increase in residential density and a trend away from bungalows to larger houses. But the basic character of the neighbourhood has not changed in my opinion. It remains a prestigious, exclusive and quiet residential area “set within environments dominated by the landscape” (per Mr Black). The setting of Highlands is sylvan, peaceful and not dominated by adjoining dwellings.

82. The change to the outlook from Highlands would be most pronounced at ground floor level; from the conservatory and patio. It would also be obvious from the upper floor bedrooms at the rear of the house although here there is already a clear view of the bungalow, garage and the house at Memphis to the west. There may be some interference with more distant wooded views but I do not consider such interference to be significant. The proposed house would be nearly 3m closer to the boundary with Highlands although the existing garage, which is closer still, would be demolished.

83. I do not consider the development of the house known as Alstonefield to the east of Highlands to be a material factor. It does not overlook Highlands in any meaningful way and is not visible from the conservatory or rear patio of Highlands. Of more importance in my view is the fact that Highlands is significantly oriented towards the application land (and away from Alstonefield) at a angle of some 45 degrees. That has a material effect on the outlook from Highlands.

84. I also consider that the proposed house would have some effect upon the amount of sunlight reaching Highlands, particularly in the autumn and winter months when the sun is lower in the sky. The proposed house would be over 4.9m higher than the bungalow and the ridge will be parallel, rather than at right angles, to the boundary fence.

85. Mr Park, the original covenantee, explained in cross-examination that it was important and significant to him that he was able to control the siting and height of the dwelling on the application land. He said that a two storey building would alter the outlook from Highlands. It was anticipated when the restrictions were imposed that a tall (6ft) hedge would be allowed to grow between the two properties. There was no suggestion that once this hedge had grown Mr Park considered the restrictions to have become nugatory during his own period of ownership. In my opinion the restrictions on the siting and height of any dwelling on the application land are just as important and relevant to Doctor and Mrs Whittle as they were to Mr Park.

86. Mr Sinnatt places weight on the fact that the objectors did not object to the planning application for the proposed development but I accept Dr Whittle’s explanation that, as a local councillor, his wife considered herself to be conflicted on the matter notwithstanding that the applicable code of conduct suggested that this was not necessarily the case.

87. Taking all these matters into account I consider on balance that the restrictions secure to the objectors practical benefits of substantial advantage. That being so the application fails on ground (aa) also.

88. The application fails on both grounds and therefore the question of compensation does not arise.

89. This decision is final on all matters other than the costs of the application. The parties may now make submissions on such costs and a letter giving directions for the exchange of submissions accompanies this decision. The attention of the parties is drawn to paragraph 12.5 of the Tribunal’s Practice Directions dated 29 November 2010.

Dated: 3 November 2015

A J Trott FRICS

United Kingdom Upper Tribunal (Lands Chamber)

BY

DECISION

Introduction

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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> Hawkins Re: Walnut Acre [2015] UKUT 564 (LC) (03 November 2015) URL: http://www.bailii.org/uk/cases/UKUT/LC/2015/564.html Cite as: [2015] UKUT 564 (LC)