Decision Nº LP 3 2011. Upper Tribunal (Lands Chamber), 12-06-2012
| Jurisdiction | UK Non-devolved |
| Judge | Mr Andrew J Trott FRICS |
| Date | 12 June 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LP 3 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2012] UKUT 112 (LC)
UTLC Case Number: LP/3/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT – discharge – modification – covenants restricting residential redevelopment of dwellings and outbuildings forming part of grounds of listed house – benefit personal to covenantee and his family – sale of majority of benefited land to third party – whether covenants obsolete in respect of retained land under ground (a) – grounds (aa) and (c) – application granted – compensation of £40,000 awarded under section 84(1)(ii) of Law of Property Act 1925
IN THE MATTER OF AN APPLICATION UNDER SECTION 84
OF THE LAW OF PROPERTY ACT 1925
by
Re: Brainshaugh House,
Acklington,
Morpeth,
Northumberland,
NE65 9AE
Before: A J Trott FRICS
Sitting at:
North Shields County Court, Earl Grey Way, Royal Quays, North Shields, Tyne & Wear, NE29 6AR
on
20 March 2012 Sitting at:
Christopher Knowles, instructed by Hardington Hogg, solicitors of Alnwick, for the applicants
Martin Gillibrand, solicitor of Oglethorpe, Sturton & Gillibrand LLP, for the objector.
© CROWN COPYRIGHT 2012
The following cases are referred to in this decision:Stockport MBC v Alwiyah Developments [1983] 52 P&CR 378
Re Mansfield District Council’s Application [1976] 33 P&CR 141
Re Skupinski’s Application [2005] RVR 269
Winter v Traditional & Contemporary Contracts Limited [2008] 1 EGLR 80.
1. The applicants, Mr John Coombes and Mrs Elizabeth Coombes, purchased the application land, Brainshaugh House, Acklington, Morpeth, Northumberland NE65 9AE, from the objector, Sir Anthony Milburn, in May 2002 for £735,000. At that time Sir Anthony owned the whole of the Guyzance Estate of which the application land formed part.
2. The transfer of the application land, dated 17 May 2002, contained restrictive covenants. Clause 5 of the transfer stated:
“the Transferee covenants with the Transferor for the benefit of the Guyzance Estate only while the same is retained by the Transferor and/or his wife and/or linear descendants and/or any person holding on trust for him or them (but not further or otherwise) and to bind the Property and each and every part thereof into whosoever hands the same may come that the Transferee and the Transferee’s successors in title to the Property will observe and perform the covenants set out in Schedule 3 at all times after the date of this transfer.
3. Schedule 3 to the transfer contained the following covenants:
(1) Not without the prior written consent of the Transferor or his successors as referred to in clause 5 of this Transfer to use or permit any building upon the Property to be used other than for residential use and in particular (but without prejudice to the generality of the foregoing) not to use or permit any building to be used for the purpose of any trade or business provided that (for the avoidance of doubt) this clause shall not prohibit the letting of North End Cottage, and Nos. 2 and 3 Brainshaugh Cottages only as holiday cottages and should the steadings referred to in paragraph 4 below be converted into cottages as permitted by the terms of paragraph 4 then this clause shall not prohibit the letting of one such cottages as a holiday cottage.
(2) Not to construct or convert any building or permit to be constructed or converted any building on any land outside the areas shown hatched red on Plan 3 for use as a dwelling-house nor to permit any building on such land converted to be used as a dwelling-house.
(3) Not to use or permit to be used the whole of any part of the Property for residential purposes of any description except:
(a) Brainshaugh House as a single dwelling; and
(b) Any houses formed from the converted steadings shown hatched blue on Plan 3 as up to three dwellinghouses; and
(c) North End Cottage as a single dwellinghouse; and
(d) The Nos.2 and 3 Brainshaugh Cottages in their existing form as two dwellings but if they shall be converted to one dwelling then as a single dwelling.
(4) Not without the prior written consent of the Transferor or his successors referred to in clause 5 of this Transfer to alter the construction or appearance of any external elevation of any building upon the Property which consent shall not be unreasonably withheld. It shall be unreasonable to withhold consent to a conversion to a maximum of three dwellings and garages in the form of a three sided courtyard development in the steadings cross-hatched blue on Plan 3 and/or to the replacement of the North End Cottage by a similar size single storey replacement and garage and/or to the replacement of Nos.2 and 3 Brainshaugh Cottages either by a single storey dwellinghouse or by a two storey dwellinghouse and garage of similar floor area to the existing building designed and built in keeping with the existing materials of the buildings adjoining provided that all such alterations are constructed of coursed stone under slate or pantile roofs to match the existing buildings in colour and texture with roof lines to match the scale and height of the existing buildings.
(5) Nor without the prior written consent of the Transferor or his successors referred to in clause 5 of this Transfer to extend or permit any extension of any garden into any part of the field marked 3600 on Plan 1 nor to allow or permit any change of use of any such land from agricultural to horticultural use but to use the same only as a permanent pasture.
(6) Not to shoot or permit shooting of any description (including clay pigeons shooting) over any part of the Property provided that such restriction shall not restrict the Transferee from controlling ground game or vermin.
(7) To retain Brainshaugh House and the garden thereto and the steadings shown hatched blue on Plan 3 and the field marked 3600 on Plan 1 and the fishing rights described in Schedule 1 of this Transfer in one ownership at all times and not to sell or otherwise dispose or seek to dispose of any part of the same separately from the whole without the prior consent of the Transferor or his successors referred to in clause 5 of this Transfer.
(8) Not to sell dispose let or otherwise permit to be used the fishing rights or any part of the same referred to in Schedule 1 of this Transfer by any fishing syndicate or fishing club.”
4. The objector sold the majority of the Guyzance Estate to an unrelated third party in 2008. He retained two parcels of woodland; one to the west of Brainshaugh, and the other (a small copse) to the south. He also retained the site of the remains of a grade II listed Premonstratensian nunnery chapel (the “chapel haugh”), part of which contains the Milburn family burial ground. The chapel haugh lies 536m to the east of the main house at Brainshaugh.
5. The applicants have obtained several planning permissions for the redevelopment of the buildings at Brainshaugh but are prevented from implementing them by the restrictive covenants. The applicants have applied to the Tribunal for the discharge, or, alternatively, the modification, of all of the covenants contained in Schedule 3 of the 2002 Transfer. They rely upon grounds (a), (aa) and (c) of Section 84(1) of the Law of Property Act 1925.
6. The objector says that the proposed development will affect his retained land and will injure him by stopping him from controlling the appearance of the application land and preventing the over intensive development of the site. Sir Anthony argues that the continued existence of the covenants will not impede a reasonable user of the application land. He says that the covenants were taken for the benefit of the Guyzance Estate and each part of it.
7. Mr Christopher Knowles of counsel appeared for the applicants and called Mr John Coombes as a witness of fact and Mr Simon Brierley BSc, FRICS, a consultant with George F White LLP, as an expert valuation witness.
8. Mr Martin Gillibrand, a solicitor with Oglethorpe, Sturton & Gillibrand LLP, appeared for the objector and called Mr Michael William Orde Dip. Est. Man., FRICS, a partner in the firm of Smith Gore, as an expert valuation witness.
9. Closing submissions were made in writing following the hearing the last of which was received on 10 April 2012.
10. I made an accompanied site inspection of the application land and of the...
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