Decision Nº LP 44 2009. Upper Tribunal (Lands Chamber), 16-08-2011
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC President |
| Date | 16 August 2011 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LP 44 2009 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2011] UKUT 325 (LC)
UTLC Case Number: LP/44/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT – preliminary issues – 2 previous unsuccessful applications – National Trust objecting – whether application should be struck out – held it should not be – compensation – whether ground (aa) should be struck out on basis that money would not be adequate compensation – held it should not be – Law of Property Act 1925 s 84(1)(aa) and (c)
IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE
BY
THAMES VALLEY HOLDINGS LIMITED
Re: Land at Ockwells Road
Cox Green
Maidenhead
Berkshire
Before: The President
Sitting at: 43-45 Bedford Square
London WC2A 3AS
on 27 April 2011
Michael Barnes QC and Eian Caws instructed by Watson Farley Williams for the applicant
John McGhee QC instructed by Burges Salmon solicitors of Bristol for the objector
The following cases are referred to in this decision:
Re Bovis Homes Southern Ltd (LP/21/1979, 20 February 1981, unreported)
Re Thames Valley Holdings Ltd (LP/12/1991, 26 October 1992, unreported)
Gee v National Trust [1966] 1 WLR 170
Re Martin (1987) 53 P & CR 146); (1988) 57 P & CR 119
Re Houdret and Co Ltd (1989) 58 P & CR 310
Re Towner (1989) 58 P & CR 316
Re Whiting (1989) 58 P & CR 321
Re Quartley (1989) 58 P & CR 518
Re Hopcraft (1993) 66 P & CR
Re Bewick (1997) 73 P & CR 240
Re Willis (1997) 76 P & CR 97
Re Zenios [2010] UKUT 260 (LC)
Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P & CR, 278
The following further cases were referred to in argument:
Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402
Dexter v Vlieland-Boddy [2003] EWCA Civ 14
Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307
Henderson v Henderson (1843) 3 Hare 100
Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1
Re Beecham Group Ltd (1981) 41 P & CR 369
Slack v Leeds Industrial Cooperative Society Ltd No 1 [1923] 1 Ch 431
Transport for London v Spirerose Ltd [2009] 1 WLR 1797
R v Warner (1664) 1 Keble 67
Quinn v Leatham [1901] AC 774
Pretoria City Council v Levinson [1949] (3) SA 305
Behrends v Bertram Mills Circus [1957] 2 QB 1
West Midlands Baptist (Trust) Assoc (Inc) v Birmingham Corpn [1968] 2 QB 188
Baker v The Queen [1975] AC 774
Robinson v Harman (1848) 1 Exch 850
IRC v Glasgow and South-Western Rly Co (1887) 12 App Cas 315
Spicer v Martin (1888) 14 App Cas 12
Elliston v Reacher [1908] 2 Ch 274
Wrotham Park Estates Co Ltd v Parkside Homes Ltd [1974] 1 WLR 793
Re Vertical Properties Ltd [2010] UKUT 51
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The land which is the subject of this application is an area of 22.6 acres on the southern edge of Maidenhead. The applicant is the freehold owner and wishes to develop the land for housing. The land lies immediately to the north of a road called Ockwells Road (previously called Ockwells Lane). Immediately to the south of Ockwells Road there stands within its own grounds Ockwells Manor, a richly decorated half-timbered house of the 15th century. It is a Grade I listed building in private ownership. The National Trust has the benefit of restrictive covenants that would prevent the development of the land without its consent, and the application, under section 84 of the Law of Property Act 1925, seeks the modification of the restrictions on grounds (aa) and (c) of section 84(1) to enable housing development to be carried out. The National Trust objects to the application.
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On two previous occasions section 84 applications have been made for the same purpose. Each of these was refused. In the light of these previous refusals the Trust now seeks to have the present application struck out as an abuse of process. Further or alternatively it seeks to have struck out from the application ground (aa). It is a requirement of ground (aa) that money should be adequate compensation for any loss or disadvantage suffered as a result of the modification by the person having the benefit of the restriction. The Trust says that the loss or disadvantage that would be suffered, to the protected setting of Ockwells Manor, would be one suffered by the public interest. It says that money cannot be adequate compensation where the loss or disadvantage is to the public interest and that ground (aa) is accordingly not capable of being established. There are thus two issues to be determined, and I will consider them in turn. Before I do so I should say a little more about the restrictions themselves and the locality.
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The restrictions were imposed by a deed dated 31 December 1945 between Sir Edward Barry Bt, then the owner of Ockwells Manor and the land surrounding it, and the Trust. The deed was made pursuant to section 8 of the National Trust Act 1937, which enables the Trust to enforce the covenants against persons deriving title under the covenantor as if the Trust were interested in adjacent land and as if the covenant had been expressed to be entered into for the benefit of that land. The land made subject to the restrictions (“the restricted land”) was Ockwells Manor itself and 260 acres of land surrounding it. Specific restrictions related to the house and other buildings. Other restrictions applied to the remainder of the restricted land. They included the following covenants:
“1. No act or thing shall be done or placed or permitted to remain upon the land which shall prejudice affect or destroy the natural aspect and condition of the land.
3. No building shall without the written consent of the National Trust at any time be erected or allowed to remain on any part of the land.”
For the National Trust Mr John McGhee QC accepts that the first restriction is unenforceable, but this is of no moment for present purposes since restriction 3 alone is sufficient to prevent the development that the applicant wishes to carry out.
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By a further deed of covenant made in 1947 between the same parties as the 1945 deed the same restrictions were applied to a further area of land. In 1962 a deed of variation was entered into between the Trust and the then owner of the land burdened by the 1945 and 1947 covenants, Mr Broadhead. This provided for the release from the restrictions of part of the restricted land.
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The applicant is the freehold owner of the application land as successor in title of the covenantor. The land is roughly rectangular in area and is bounded on the south by Ockwells Road and on the other three sides by residential development. The land to the west was developed under an outline planning permission granted on appeal in 1973. The permission included the application land, and reserved matters relating to the application land were approved in 1979. They covered the construction of 120 houses, a condition of the permission having stated that the layout should provide for low density housing in the vicinity of Ockwells Manor. Because the permission was implemented on the land to the west it remains extant, and the development approved in 1979 could now be carried out. The applicants, however, hope to develop the application land at a much greater density, and they would apply for a new planning permission for this purpose.
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In 1986 a belt of trees was planted along the Ockwells Road frontage of the application land. It extends to a depth that varies from about 25 to 55 metres. Ockwells Manor is set back from Ockwells Road on the south side, and the land to the east, west and south of its curtilage is undeveloped. All the land to the south of Ockwells Road is in the Green Belt.
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In 1979 Bovis Homes Southern Limited, then the owners of the application land, applied to the Lands Tribunal under section 84 for the restrictions to be modified so as to enable the land to be developed in accordance with the 1973 permission and the 1979 approval of details. The National Trust objected to the application. The applicant relied on grounds (aa) and (c). The case on ground (aa) was based on paragraph (b) of subsection (1A), ie that in impeding the proposed development the restrictions were contrary to the public interest. The applicant contended that under the policies contained in the Berkshire Structure Plan it was essential that land...
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