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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> George Wimpey Bristol Ltd v Gloucestershire Housing Association Ltd [2011] UKUT 91 (LC) (14 March 2011) URL: http://www.bailii.org/uk/cases/UKUT/LC/2011/LP_3_2009.html Cite as: [2011] UKUT 91 (LC) |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 91 (LC)
LT Case Number: LP/3/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT - modification - open land - covenant prohibiting erection of any building - application to modify to permit construction of 17 dwellinghouses and seven garages - application refused - Law of Property Act 1925 s84(1) (aa).
IN THE MATTER OF AN APPLICATION UNDER SECTION 84
OF THE LAW OF PROPERTY ACT 1925
and
GLOUCESTERSHIRE HOUSING
ASSOCIATION LIMITED
Re: Approx 1.8 acres of open land
Mill Lane
Prestbury
Gloucestershire
Before: N J Rose FRICS
Sitting at Cirencester Magistrates’ Court, The Forum, Cirencester, GL7 2PL
on 25-27 January 2011
Andrew Francis, instructed by Shulmans, solicitors, of Leeds for the Applicants.
Edward Peters, instructed by Lyons Davidson, solicitors, of Bristol for Mr and Mrs Beardmore and Mrs Walmsley, Objectors
Mr Martin Cotter, one of the Objectors, in person.
Mr Geoffrey Day, one of the Objectors, in person and for the remaining Objectors with permission of the Tribunal.
The following case is referred to in this decision:
Re Bass Ltd’s Application (1973) 26 P & CR 156
The following cases were also cited:
Re Azfar’s Application [2001] EWLands LP/10/2000
Re Bushell’s Application (1987) 54 P&CR 386
Re Davies’s Application (1970) 25 P & CR 115
Re Fairclough Homes’ Application [2004] EWLands LP/30/2001
Re Farrow’s Application [2001] EWLands LP/18/2000
Gilbert v
Spoor [1983] 1
Ch 27
Re Gossip’s Application (1972) 25 P & CR 215
Re Hamden Homes’ Application [2001] EWLands LP/38/1999
Re Henderson’s Conveyance [1940] 1 Ch 835
Re Livingston’s Application (1982) P & CR 462
Re North’s Application (1997) 75 P & CR 117
Re Poulton’s Application (1969) 21 P&CR 664
Re Saddington’s Application (1964) 16 P&CR 81
Re Sheehy’s Application (1991) 63 P&CR 95
Re Tarhale Ltd’s Application (1990) 60 P&CR 368
Wakeham v
Wood (1981) 43
P&CR 40
Re Williams’ Application (1987) 55 P&CR 400.
Shephard v
Turner [2006] EWCA Civ 8
Re Jilla’s Application [2000] 2 EGLR 99
Re GBP Construction Ltd’s Application LP/56/2007, 20 February 2009, unreported
Re Robinson’s Application [2009] UKUT 159 (LC)
Re Cain’s Application [2009] UKUT 212 (LC)
Vertical
Properties
v
New
Hampstead Garden Suburb Trust Ltd & Ors [2010] UKUT 51 (LC)
2.
The restriction was imposed by a conveyance dated 25 June 1936 between
Henry Edward Ripley (the Vendor)
and Lilian
Valentine
Simpson (the Purchaser),
by which the Purchaser covenanted
“for the benefit of the adjoining land of the vendor
on
the West and South sides of the land hereby conveyed that no building shall be
erected on the piece of land to the west of the line drawn on the said plan
between the points marked ‘A’ and ‘B’…”
The line A-B forms the eastern boundary of the application land.
7.
Objections to the application are outstanding from the following owners
of dwelling houses in the vicinity
of the application land: Mr Leslie Green
(Fairgarth, Noverton Lane), Mr Martin Cotter (The Spinney, Mill Lane), Mr and
Mrs Malcolm Garrett (High Beeches, Noverton Lane), Mr and Mrs Frederick Stevens
(Ivyhurst, Noverton Avenue), Mr
John
Foley (Mallards, Noverton Lane), Mr
Kenneth
Lewis
(Portelet, Noverton Avenue), Mr Paul Ballinger (2 Noverton
Avenue), Ms Charlotte Pumfrey (12 Noverton Avenue), Ms Angela Hook (16 Noverton
Avenue), Mrs Laurina Blankenspoor (20 Noverton Avenue), Mrs Mary Walmsley
(Little Meadows, Noverton Lane), Mr and Mrs Geoffrey Beardmore (Shandon,
Noverton Avenue), Mr and Mrs Michael Bassett-Smith (Grey Gables, Southam Road),
Mr and Mrs Michael StJohn-Green (Robinswood, Noverton Lane), Mr David Wade (5
The Stables, Mill Lane), Ms Jennifer McLachlan (Hawthorns, Noverton Avenue),
Mrs Marianne Hughes (8 Noverton Avenue), Mr Geoffrey Day (Newcourt House, Mill
Lane), Mr James Simons (Foxcote, Noverton Lane), Mrs Joyce Marriott (6 The
Stables, Mill Lane), Mr Philip Timings and Mrs Anne Hughes (7 The Stables, Mill
Lane) and Mr and Mrs Paul Adams (Greka, Noverton Avenue). It is agreed that
all the objectors are entitled to the benefit of the restriction.
Facts
12.
The house and garden known as “Subajan” is also bound by the covenant.
Subajan is a single house in a very
large plot, with a frontage to Mill Lane, immediately to the north-west of the application land and just east of The
Spinney and its immediate neighbour to the west, Newcourt House. It was built
in the 1960s, pursuant to a limited deed of release dated 2 March 1961. By
that deed properties with the benefit of the covenant (including the then
owners of The Spinney, Shandon and Pontelet, whose current owners are among the
objectors to the present application) permitted the construction of one house
only on the Subajan plot. That house comprises one of the 79 units referred to
in para 10 above.
14.
The topography of the area rises generally in a north-easterly
direction. Mill Lane rises from 83m AOD adjacent to a house known as Le
Vignoble,
two doors west of Newcourt House, to 89.6m adjacent to the
application land (that is, between Subajan and Burnside). The properties east
of the line A-B commence with ground floors in excess of 92m.
Case for the objectors
17.
There are outstanding objections from the owners of 22 houses. Five of
these - Portelet, Little Meadows, Shandon, Greka and part of Hawthorns - have a
boundary adjoining or including the woodland belt which abuts the application
land. The remainder are situated at varying
distances to the west and south-east.
18.
The detailed grounds of objection varied,
depending on the locational
relationship of each objector’s property to the application land. They
included the following: disturbance during construction works; risk of
flooding; loss of natural habitat for wildlife; light pollution; increased
crime, traffic congestion and noise; loss of privacy,
views,
openness and
overall amenity; the proposed modification would set a precedent for further
modification(s) of the restriction; loss of property
value.
19.
Mr Chambers considered that the effect of the proposed modification
would be to reduce the freehold value
of Shandon from £550,000 to £450,000 (a
reduction of 18.18%) and that of Little Meadows from £600,000 to £525,000
(12.5%). Mr Adams and Mr Day produced written reports from Mr Cameron Clarke
FRICS of Cotswold Surveyors Limited of Cheltenham. Mr Clarke expressed the
view
that the
value
of Greka would be reduced by 25% and that of Newcourt House
by 5% if the proposed modification was approved. Mr
Lewis
was unable to give
evidence because of ill-health, but he submitted a report from Mr Clarke
assessing the reduction in
value
of Portelet at 25%. Mr Cotter produced a
letter from Mr David
Evans
of Savills, Cheltenham office, which recommended
“considering a reduction in the selling price” of The Spinney of around 6 to 8%.
In contrast to Mr Chambers, neither Mr Clarke nor Mr
Evans
was called to give
evidence before the Tribunal.
Case for the applicants
22.
Mr Brogden said that the development on the application land for which
the modification was sought was in accordance with the historic pattern of
development in the area, development plan policies and the planning
permission. He considered each of the matters which had been raised in support
of the objections. He estimated that the proposed building works could be
completed within a construction period of seven months. He agreed that this
work would create some additional disturbance. He considered, however, that such
work comprised less than 10% of the overall works associated with the planning
permission and that it could be undertaken at the same time as outstanding site
works required for the benefit of the existing residential development to the
east of the application land. On flooding, Mr Brogden said that drainage
details were carefully considered before they were approved by the local
planning authority. There was no reason to believe that flooding would result
from the proposed development and affect the value
of nearby properties. On
natural habitat, he said that the planning permission controlled the management
of the application land, including open land within the curtilage of the
dwellings, open space and a balancing pond. The Tree Preservation Order was to
be retained, but with bat and bird boxes fitted. He accepted, however, that
the planning permission would create a managed habitat rather than a natural
one.
23.
Mr Brogden did not believe that artificial light emanating from the
proposed development would have a significant impact on the objectors’
properties and he felt that the fears expressed about increased crime, traffic
and noise were unjustified. He accepted that a number of properties could be seen
from the application land, particularly in mid-winter when leaf foliage was at
a minimum. Those most affected would be those adjoining the southern boundary
(including Little Meadows) and in particular Greka due to its proximity to the
boundary, its orientation and its two storey construction. On the question of
views
and openness, Mr Brogden agreed that there was a possibility that the
properties immediately adjoining the southern and western boundaries of the
application land would be affected, together with some properties further away
with a direct
view
into the land.
24.
Mr Brogden pointed out that, when it granted planning permission for the
proposed development, the local planning authority stated that its impact on
neighbouring properties had been carefully assessed, and it was considered that
there would be no undue impact on their amenity. Considering all the issues
identified by the objectors as a whole, rather than attributing a value
to each
of the component parts, he did not think that the overall effect of the
proposed modification on the objectors’ amenities would be as great as the sum
of the parts.
25.
In Mr Brogden’s opinion, the properties most adversely affected by the
proposed development were Portelet, Shandon, Greka and Little Meadows. Despite
the relative proximity of Fairgarth, immediately to the west of Little Meadows,
it was not easily visible
from the application land and would not be affected
to the same degree. Hawthorns, situated immediately to the east of Portelet,
was mainly affected by the development to the east of line A-B, which was not
subject to the restriction. The Spinney and 2 Noverton Avenue might become
aware of the houses on the application land, but to a marginal extent at most.
Nos.8, 12, 16 and 20 Noverton Avenue would not be affected by the development.
They were already suburban dwellings surrounded by a
variety
of residential
properties. The presence of their existing neighbours would be the single
biggest factor contributing to their overall amenity. The properties of the
remaining objectors were separated from the application land by other
residential property and the proposed development would have no impact upon
them. Having inspected all the objectors’ properties, Mr Brogden was of the
opinion that only Portelet, Shandon, Greka, Fairgarth, Little Meadows and
Hawthorns might secure practical benefits if the proposed user of the application
land was prevented.
26.
Mr Brogden then considered whether those benefits were of substantial
value
or advantage. In his
view
each of the houses would fall in
value
if the
covenant were modified as proposed. His
valuations
of those properties, and his
assessments of the diminution in
value,
were as follows:
Property |
![]() |
Diminution
in ![]() |
Fairgarth |
£525/550,000 |
£ 2,000 |
Portelet |
£200/250,000 |
£ 2,000 |
Little Meadows |
£525/550,000 |
£10,000 |
Shandon |
£525/550,000 |
£17,500 |
Hawthorns |
£200/250,000 |
£ 1,000 |
Greka |
£600/620,000 |
£25,000 |
These figures related only to the long-term effects of the
modification, but Mr Brogden was of the view
that any disturbance during
construction would be minimal. In his opinion, the practical benefits secured
to the objectors by the restriction were not of substantial
value
or advantage
and money would be an adequate compensation for the loss or disadvantage which
would be suffered by the owners of the six properties whose
values
would be
reduced. This was because the character of the area would not change as a result
of the proposed modification. It would be a residential area whether or not
the 17 houses were erected.
Conclusions
Question 1. Is the proposed user a reasonable user of the land for private purposes?
As in Re Bass, it
difficult in the face of the planning permission to say that the proposal is
not a reasonable user. The main justification for the contrary view
put
forward by the objectors is the fact that, if the restriction is removed, the
total number of dwellings erected on the application site and the applicant’s
land to the east will be 124, which is 14 more than the number recommended in
the inspector’s report on the Tewkesbury Borough Local Plan to 2011. There is,
in my judgment, no force in that contention. The inspector’s suggested figure
was expressed as an approximation only. Moreover, the inspector reported in
December 2003. In their subsequent report to the local planning authority on
the outline planning application for residential development, the planning
officers advised that it was necessary to increase the density above that
recommended by the inspector in order to reach the lowest density threshold for
new residential developments set out in PPG3 (30 to 50 dwellings per hectare).
I am satisfied that the proposed user is reasonable
Question 2. Does the covenant impede the proposed user?
It is agreed that it does.
Question 3. Does impeding the proposed user secure to the objectors practical benefits?
It is agreed that it does, at least so far as the following objectors’ properties are concerned: Little Meadows, Greka, Shandon, Portelet, Hawthorns and Fairgarth. For present purposes I propose to concentrate on these six properties in the first instance, since they would clearly be most affected by the proposed modification.
Question 4. If the answer to
question 3 is affirmative, are those benefits of substantial value
or
advantage?
In the case of Little Meadows and Shandon I had the benefit of
expert evidence on behalf of both the applicant and the objectors. Mr Brogden
considered that the proposed modification would reduce the value
of Little
Meadows by £10,000 (or approximately 3.25%) and that of Shandon by £17,500 (or
less than 2%). Mr Chambers strongly disagreed. His estimates of the
diminution in
value
were, respectively, 12.5% and 18%. Having heard the
evidence and inspected the two properties, I consider that Mr Chambers is
closer to the mark. I bear in mind that it is possible, from both premises, to
see the new Wimpey Homes estate of 107 dwellings on land which is not subject
to the restrictive covenant. I also bear in mind that the rear
views
from both
houses and their gardens are partly interrupted by the TPO protected tree
screen and that both properties are at present overlooked to a limited extent
by adjoining houses. In my
view,
if the restriction is not modified, Little
Meadows and Shandon will continue to enjoy a semi-rural location, with
outstanding
views
over open land to the beautiful hills in the distance. On
the other hand, authorisation of the proposed development would result in the
location of these houses changing to one of a largely suburban character, with
a resultant loss of
views,
privacy and overall amenity. I find that the
value
of the freehold interest in each property with the benefit of the restriction is
£550,000 and that this would be reduced as a result of the proposed
modification by 15% in the case of Shandon (to £467,500) and by approximately
12.5% in the case of Little Meadows (to £480,000).
28.
I place little weight on valuation
reports produced for other objectors,
since the authors were not called to give evidence. In the light of the
evidence generally, however, I conclude that in the case of the four remaining
properties which, it is agreed, secure practical benefits from the restriction,
the reductions in
value
resulting from the modification would be
Greka - 15%
Portelet - 12.5%
Hawthorns - 10%
Fairgarth - 7.5%
29.
In my judgment the practical benefits of the restriction to the owners
of these four properties, and those of Shandon and Little Meadows, are of
substantial value
and advantage. The applicant has therefore failed to
substantiate ground (aa).
31.
Both gentlemen were concerned about flooding. A stream runs down Mill Lane, but when it reaches The Spinney it channels into a pipe which goes under the road
and beneath the foundations of two cottages on the other side of Mill Lane, before rising to the surface and continuing back into a stream some 100 yards
further down the road. Before Wimpey Homes started their building works, on
one or two occasions each year the volume
of rainwater would be greater than
the capacity of the pipe and the excess water would flow down the road, often
in significant quantities. Since construction of the new Wimpey houses the
road floods about 10 times each year. Mr Cotter considered that the extra
flooding was due to the fact that, formerly, the area now built upon delayed
the arrival of water into the stream by a matter of hours or even days. The
application site still provided an area where water was retained for a period.
If this area were developed with 17 houses, water running onto and falling upon
the whole of the Wimpey Homes site would immediately hit the stream
via
their
drainage system.
32.
Mr Cotter added that flooding now occurred in his rear garden, providing
an indication of the volumes
of water that were held in the fields before the
development, most of which were now quickly channelled into the stream. Wimpey
Homes had admitted responsibility for flooding the kitchen of Subajan, to the
north-east of The Spinney. They compensated the owner and dug a drainage pond
in attempt to deal with the problem. This pond, however, was half full even on
a dry day and performed no function. Mr Cotter felt that to eliminate the
final strip of land still acting as a water break would be a disaster. Mr Day
was also concerned about the risk of flooding, not in Mill Lane but in his
large rear garden.
33.
Mr Brogden agreed that, on the first two occasions when he visited
Mill Lane, the road was totally flooded following a rain storm. Although he is not a
hydrology expert, he relied on the fact that the drainage details for the
Wimpey Homes development had been approved by the local planning authority as
demonstrating that the objectors’ concerns about flooding were unfounded. In
cross-examination, however, he accepted that he was aware of an incident in the
locality where a drainage scheme, designed to cope with a flood event following
a 1 in 100 year storm, had been approved by the local authority but had failed
and flooded within one year.
34.
In the absence of any expert evidence on behalf of the applicants to
show that the increased flooding which has occurred since Wimpey Homes started
building houses in the vicinity is not connected with that development, I find
that the concerns about flooding expressed by Mr Cotter and Mr Day are
reasonable. I also conclude that Mr Cotter was justified in opposing the
proposed modification on the grounds that it would provide a precedent for a
further modification, permitting the construction of two additional houses on
the site of Subajan, his close neighbour. Planning permission has been granted
for the erection of those houses and, if implemented, would alter the character
of this part of Mill Lane by introducing a form of development at a much higher
density than that existing at present. In my judgment, the restrictive
covenant, by impeding the proposed development, secures to Mr Day and Mr Cotter
the practical benefits of allaying their reasonable concerns about intensified
flooding and relatively high density development in Mill Lane, and that those
practical benefits are of substantial advantage.
Dated 14 March 2011
N J Rose FRICS