Decision Nº LP 2 2010. Upper Tribunal (Lands Chamber), 29-02-2012
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICS |
| Date | 29 February 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LP 2 2010 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2012] UKUT 21 (LC)
UTLC Case Number: LP/2/2010
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT – modification – proposed replacement of single dwelling by three detached houses – benefited land held together with other land – whether consideration of practical benefits under ground (aa) extends to all land owned or just benefited land – whether alternative development not in breach of restriction would proceed if application refused – held restriction secured substantial practical benefits – application refused
IN THE MATTER OF AN APPLICATION UNDER SECTION 84
OF THE LAW OF PROPERTY ACT 1925
Re: 10 Minterne Road,
Lilliput,
Poole,
Dorset,
BH14 8NA
Before: A J Trott FRICS
Sitting at:
Poole Magistrates Court, Law Courts, Park Road, Poole, BH15 2NS
on
15-16 November 2011 Sitting at:
Timothy Morshead QC, instructed by Rawlins Davy Plc, for the applicant
Tom Weekes, instructed by Turners Solicitors LLP, for the objectors
Gilbert v Spoor [1983] 1 Ch 27
Dobbin v Redpath [2007] 4 All ER 465
Re Fairclough Homes Limited’s Application [2004] LP/30/2001 (unreported)
Shephard v Turner [2006] 2 P&CR 28
Winter v Traditional & Contemporary Contracts Ltd [2008] 1 EGLR 80
Stokes v Cambridge Corporation [1961] 13 P&CR 77
Stannard v Issa [1987] AC 175 at 187
North Wiltshire District Council v Secretary of State for the Environment and Clover [1992] 65 P&CR 137
Shelfer v City of London Electric Lighting Co Limited [1895] 1 Ch 287.
The following further cases were referred to in argument:
Stockport MBC v Alwiyah Developments (1986) 52 P&CR 278
Re Collett’s Application (1963) 15 P&CR 106
Re Banks’ Application (1976) 33 P&CR 138
Re Carter’s Application (1973) 25 P&CR 542
Re Henderson’s Conveyance [1940] Ch 385
Re Zopat Developments’ Application (1966) 18 P&CR 156
Re Twiname Ltd’s Application (1971) 23 P&CR 413
Re Vaizey’s Application (1974) 28 P&CR 517
Re Cain’s Application [2009] UKUT 212 (LC)
R v Monitor ex parte Unison [2009] EWHC 3221 (Admin)
R ota Innovia Cellophane Ltd v Infrastructure Planning Commission [2011] EWHC 2883 (Admin)
Re Bass Ltd’s Application (1976) 26 P&CR 156
Wakeham v Wood (1981) 43 P&CR 40
Wood-Robinson v Secretary of State for the Environment Unreported, 3 April 1998
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Mr John Stanborough (the applicant) owns the freehold of 10 Minterne Road, Lilliput, Poole, Dorset, BH14 8NA (the application land). The property currently comprises a large detached house but Mr Stanborough wishes to demolish this and to erect three 4-storey detached houses. Detailed planning permission for the current version of the proposed development was granted on appeal on 17 August 2010.
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Minterne Road lies to the north of the application land and runs in an east to west direction. No.10 is set a long way back from the road and shares a driveway with No.12 to the east. Immediately to the north of the existing house at No.10, and between it and Minterne Road, lies No.8. To the west of No.10 is the chalet-bungalow at No.6. No.6 is also set back from Minterne Road and its access lies between No.2 to the west and No.8 to the east. This access also leads to the plot that was apparently going to be developed as No.4 (but never was) and which lies to the west and south of No.6.
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On 13 April 1955 the land which was to form plot No.4 was sold. The retained land of the vendor included No.6 and part of No.10. In clause 4 of the conveyance the vendor:
“with the interest and so as to bind the adjoining property coloured Yellow and hatched blue on the said plan and to protect the property hereby conveyed hereby covenants with the purchaser that the Vendor and its successors in title and assigns will at all times hereafter observe and perform the covenants and conditions set out in the Second Schedule.”
The land coloured yellow and hatched blue (the burdened land) comprises an area of some 610m2 of which approximately 585m2 is located in the rear garden of No.10 immediately to the south of the existing house. The remaining 25m2 or so forms part of the rear garden of No.6. The benefited land is the whole of the land that was sold under the 1955 conveyance.
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Two of the houses which the applicant proposes to build would encroach onto the burdened land. The Second Schedule of the 1955 conveyance contains three restrictive covenants. Restriction 2, which is the subject of this application, states:
“Not to erect any building or structure on any part of the said land now belonging to the Vendor hatched blue on the said plan.”
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The applicant has applied to modify this restriction to enable the proposed development to proceed. He relies upon grounds (aa) and (b) of section 84(1) of the Law of Property Act 1925.
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There were originally three objections to the application but one of these, by Harbour Watch Residents Association Limited, was withdrawn by consent before the hearing. The remaining two objectors are Mr Roger Cubberley and Miss Margaret Cubberley, the freehold owners of 6 Minterne Road.
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Mr and Miss Cubberley’s parents originally purchased 6 Minterne Road in 1970. At that time it comprised a 1950s bungalow with a small rear garden. In 1979 Mr and Miss Cubberley’s parents purchased part of the benefited land to the west of No.6. This land was then incorporated with No.6 and effectively trebled the size of the garden. Plot No.4 was not developed and that part of it acquired in 1979 and No.6 are now occupied together as a dwelling (a chalet-bungalow) and garden. Mr and Miss Cubberley became registered proprietors of both Plot No.4 (part) and No.6 (under separate titles) on 26 June 1987.
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The restrictive covenants imposed under the 1955 conveyance benefit that part of the benefited land purchased by the objectors’ parents (hereinafter referred to as plot No.4 and shown in Title No. DT64194). 6 Minterne Road, which includes the existing dwelling (Title No. DT7836), does not have the benefit of the covenants. Indeed a small nib of land at the south of the garden of No.6 is subject to the burden of those covenants.
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Mr Timothy Morshead QC appeared for the applicant and called Mr Geoffrey David Bevans FRICS, a sole practitioner, as an expert valuation witness giving evidence about whether ground (aa) had been established and compensation; Mr David Andrew Jobbins BSc MRTPI, an Associate Director at Savills, as an expert planning witness; and John Henry Stanborough, the applicant, as a witness of fact.
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Mr Tom Weekes appeared for the objectors and called Mr Colin Peter Wetherall BSc FRICS, Director and Head of the Survey and Valuation Department of House and Son, as an expert valuation witness giving evidence about the impact of the proposed development and the compensation issues arising; Mr Malcolm David Brown FRICS MRTPI, Planning Director at Sibbett Gregory Wright & Coles Ltd, as an expert planning witness; and Mr Roger William Cubberley objector, as a witness of fact. Miss Margaret Rose Cubberley and Mrs Diana Barbara Cubberley (who is not an objector) also submitted witness statements but were not called to give oral evidence.
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I made an accompanied site inspection of the application land and the objectors’ property on 15 November 2011.
Facts
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From my evidence and my site inspection I find the following facts:
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The application land is located in an area of low density good quality housing, with some flats, set on a wooded hillside sloping south east towards Poole Harbour. 6 Minterne Road, the objectors’ chalet-bungalow, is located to the north west of the existing house at No.10, close to the boundary. At their closest the buildings at Nos.6 and 10 are approximately 11.5m apart. There is a difference in ground levels of over 7m between No.6 and No.10, with No.6 being on the higher ground. In broad terms the level of the main ridge of the existing pitched roof at No.10 is at about the same level as the ground floor of No.6, although a wing of No.10 has a ridge which is 3m higher, close to No.6 and running at right angles to the main ridge.
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The difference in levels takes place over a short horizontal distance, creating a sharp drop between the two properties requiring a...
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