Decision Nº LP 57 2007. Upper Tribunal (Lands Chamber), 26-07-2010
| Jurisdiction | UK Non-devolved |
| Judge | George Bartlett QC President |
| Date | 26 July 2010 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LP 57 2007 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2010] UKUT 260 (LC)
LT Case Number: LP/57/2007
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
RESTRICTIVE COVENANT – modification – addition of first floor above garage in Hampstead Garden Suburb – effect on character of area – policy guidance – precedent – weight to be given to local planning authority approval – whether power to prevent development a practical benefit of substantial advantage to trust – held that it was – application refused – Law of Property Act 1925 s 84(1)(aa) and (c)
IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE
BY
and
TOMARA ZENIOS
Re: 25 Ingram Avenue
London NW11
Before: The President
Sitting at 43-45 Bedford Square, London WC1B 3AS
on 26, 27 and 28 April 2010
Christiaan Zwart instructed by R A Rosen & Co for the applicant
Tom Weekes instructed by Lee Bolton Monier-Williams for the objector, Hampstead Garden Suburb Trust Ltd
The following cases are referred to in this decision:
Re Vertical Properties Ltd LP/4/2007, 1 March 2010
Re Kalsi (1993) 66 P & CR 313
Re Martin (1988) 57 P & CR 119
Re Willis (1997) 76 P & CR 97
The following further cases were referred to in argument:
Driscoll v Church Commissioners for England [1957] 1 QB 330
Re Ghey and Galton [1957] 2 QB 560
Shephard v Turner [2006] 2 EGLR 73
Gilbert v Spoor [1982] 3 WLR 183
Dobbin v Redpath [2007] 4 All ER 465
Re Snaith and Dolding (1995) 71 P & CR 104
McMorris v Brown [1999] 1 AC 142
Meridian Global Funds Management Asia Ltd v Securities Commission [1985] 1 WLR 413
Stone & Rolls Ltd v Moore [2009] 3 WLR 455
R v Basildon District Council, ex p Martin Grant Homes Ltd (1986) 53 P & CR 397
South Lakeland District Council v Secretary of State for the Environment [1992] 2 WLR 204
R v Ashford District Council, ex p Shepway District Council [1999] PLCR 12
Carter Commercial Developments Ltd (in Administration) v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 1994
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896
Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255
Tomkins v Tomkins [1948] 1 P 170
Re Love (1993) 67 P & CR 101
7 Strathray Gardens Ltd v Pointstar Shipping & Finance Ltd [2004] EWCA Civ 1669
Re Fairclough Homes Ltd LP/30/2001, 23 April 2004
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The applicants in this case, the owners of a substantial house in Hampstead Garden Suburb, seek the modification of restrictions under section 84(1) of the Law of Property Act to enable them to construct a first-floor extension over the garage of the house. The restriction – not, without the consent of the Hampstead Garden Suburb Trust, to make any alteration to the external appearance of any building for the time being standing on the property – is contained in a transfer of the freehold interest in the property dated 9 March 1979 and also in a Scheme of Management, extending to all enfranchised property in Hampstead Garden Suburb, made under the Leasehold Enfranchisement Act 1967. Modification is sought on grounds (aa) and (c). The objectors are the Hampstead Garden Suburb Trust Limited, which has the benefit of the restriction under the transfer and the scheme.
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I carried out an accompanied view of the Suburb, including Ingram Avenue, the road in which the subject property stands immediately before the hearing, and I heard evidence from four witnesses: for the applicants, Christopher Pask MA, Dip Arch (Cantab), RIBA, a partner in the Charlton Brown Partnership of Hampstead, and Michael Burroughs BA, MRTPI, of Michael Burroughs Associates of Hampton Hill, Middlesex; and, for the trust, Paul Velluet RIBA, IHBC, chartered Architect, and Jane Marion Blackburn, the Secretary of the Trust. Mr Pask and Mr Velluet gave evidence on architectural matters, Mr Burroughs on town planning matters and Mrs Blackburn on factual matters relating to the Trust and the exercise of its functions. In addition there were unchallenged witness statements from the owners of the subject property, Jonathan David Zenios and Tamara Zenios. Further information was provided in writing on 21 may 2010. The factual statements in this decision are derived from the evidence, the documents produced and my site inspection.
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It is to be noted that another application, almost contemporaneous with the present one, to modify restrictions affecting another house in Ingram Avenue has recently been decided by the Tribunal (Judge Reid QC), Re Vertical Properties Ltd, LP/4/2007, 1 March 2010. That application was made in order to enable a development very different from the one to which the present application relates, the replacement of one house with two new houses on two of the original Ingram Avenue plots, one of which contained the existing house and the other of which had been used as garden land and had remained undeveloped. Neither party suggested that the Vertical Properties decision had any decisive bearing on the considerations that arise in the present case, and I do not think that it has, although certain observations of the judge on the nature of the area and the scheme of management are of relevance.
Hampstead Garden Suburb and Ingram Avenue
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Hampstead Garden Suburb is an estate in north London of about 800 acres containing over 5000 properties. It was developed, mostly between 1907 and 1938, through the vehicle of the Hampstead Garden Suburb Trust Ltd, a predecessor of the present body, on the basis of a formal plan, initially prepared by Barry Parker and Sir Raymond Unwin, with Sir Edwin Lutyens as consultant and designer of part of the area, and then carried on by J C S Soutar. Soutar was the Trust architect, in succession to Unwin, from 1915 to 1951. The Suburb represents the implementation of the social and architectural concept of its founder, Dame Henrietta Barnett. One of the guiding principles was that the interests of individual property owners should be subservient to the interests of the wider community. Sir Nikolaus Pevsner described the Suburb as “The aesthetically most satisfactory and socially most successful of all C20 garden Suburbs” (The Buildings of England: London 4: North, 1951).
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Hampstead Garden Suburb Trust Limited is a company limited by guarantee incorporated (under the name New Hampstead Garden Suburb Trust Limited) in 1968 following the coming into force of Part 1 of the Leasehold Reform Act 1967. It succeeded to interests that had earlier been held by a company of the same name that had been responsible for the development of the Suburb from 1907 onwards but had gone into liquidation in the 1960s. Its principal object is to maintain and preserve the character and amenities of the Suburb.
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Under section 19(1) of the 1967 Act application could be made to the High Court for approval of a scheme of management in an area occupied under tenancies held from one landlord where the Minister of Housing and Local Government had given his certificate that
“in order to maintain adequate standards of appearance and amenity and regulate redevelopment in the area in the event of the tenants acquiring the landlord’s interest in their house...it is in the general interest that the landlord should retain powers of management in respect of the house...”
And under subsection (3) the Minister in considering whether to grant a certificate and the High Court in considering whether to approve a scheme were required to have regard
“primarily to the benefit likely to result from the scheme to the area as a whole...and the extent to which it is reasonable to impose, for the benefit of the area, obligations on tenants so acquiring their freeholds; but regard may also be had to the past development and present character of the area and to architectural or historical considerations, to neighbouring areas and to the circumstances generally.”
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On 7 July 1970 the Minister granted a certificate that “for the purpose of ensuring the maintenance and preservation” of the Suburb the Trust should have in respect of enfranchised properties powers of management under a scheme of management. An order of the High Court of 17 January 1974, amended by an order of 17 February 1983, approved the scheme.
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Ingram Avenue lies...
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