Shephard & others v Turner and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Latham,Lord Justice Mummery |
| Judgment Date | 23 January 2006 |
| Neutral Citation | [2006] EWCA Civ 8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2005/0973 |
| Date | 23 January 2006 |
[2006] EWCA Civ 8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
N.J. ROSE FRICS
LP/45/2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Latham and
Lord Justice Carnwath
Case No: C3/2005/0973
Guy Fetherstonhaugh QC & Emily Windsor (instructed by Battens, Solicitors Limited) for the Appellants
George Newsom (instructed by Messrs. Stones) for the Respondents
Background
This is an appeal from a decision of the Lands Tribunal (Norman Rose FRICS) on an application under section 84 of the Law of Property Act 1925 ("the Act") to modify restrictive covenants. At issue was a proposal to erect a dwelling with associated works on land forming the curtilage of a house known as "Evergreen", 4 Orchard Close, Ottery St Mary, Devon ("the application land"). The application was made by the owners of Evergreen, Mr and Mrs Turner. There were objections from the owners of seven of the other properties in Orchard Close (six of whom are the appellants in the present appeal).
The Tribunal described the area as follows:
"Orchard Close comprises a small cul-de-sac which runs north off Longdogs Lane. It was developed in the early 1950s by Drake and Gorham Limited – a manufacturing company which had moved its operations to Ottery St Mary from London after the Second World War – in order to house some of its managers and key staff. Orchard Close contains seven detached dwellinghouses, but the development also includes an eighth house, which abuts the eastern boundary of No.7 and is now known as The Hollies, Longdogs Lane. All eight houses are of similar construction, with pitched roofs and rendered elevations. They are arranged on two storeys and each contains three bedrooms, but they have different layouts and sizes and some have been extended and altered since construction. The close is characterised by simple dwellings linked by garages and curtain walls to form a largely unbroken façade. In 1955 the architect of the development, A R Lamb ARIBA AMTPI, was awarded the Housing Medal by the Ministry of Housing and Local Government in recognition of the merit of his design…
… The areas of the application land and of the neighbouring property to the west (No.3) are both approximately 0.25 ha. Nos.3 and 4 lie at the head of the cul-de-sac and are significantly larger than the sites belonging to the remaining objectors, which are typically less than 0.1 ha in size." (paras 8–10)
The restrictions in question were imposed in a conveyance of the application land dated 20 October 1952. The conveyance contained, among others, the following covenants:
"1. The Purchaser shall not at any time use the said property for any other purpose than as a private dwellinghouse.
2. The Purchaser shall not do nor permit to be done upon the property anything which shall be or become a nuisance or annoyance to the owners or occupiers of the adjoining premises nor use the same for any illegal or improper or immoral purpose …
4. No caravan on wheels or building or other structure or erection whatsoever permanent or temporary shall at any time be placed built or erected upon any portion of the land coloured light pink and hatched green on the said plan".
The "land coloured light pink and hatched green" ("the hatched land") is roughly rectangular in shape, covering the part of the application land between the existing house and the hammerhead at the northern end of Orchard Close.
On 14 June 2002 outline planning consent was granted on appeal for the construction of one single storey house or bungalow in the garden of the application land, subject to reserved matters which have subsequently been approved. The Tribunal described the proposal:
"… The site for which planning permission for the proposed bungalow was granted on 14 June 2002 has an area of 0.13 ha. It is roughly square in shape and currently forms the rear (northern) half of the back garden of No.4. It slopes downward in a northerly direction and lies within an area which contains a variety of house types and a mixed pattern of development.
Access to the proposed new dwelling would be by a 3 m wide driveway, which would connect with Orchard Close at the same point as the existing driveway and require demolition of the garage to No.4. That garage is of rendered brick or block construction with flat concrete roof set behind a parapet wall and a metal up and over door. It is attached on its west side to the garage to No.3 to form a single structure. The new vehicular access to serve the proposed replacement garage for No.4 would be formed by breaching the boundary wall at the front of the property to a width of 3 m and installing a new driveway with turning area and hardstanding on the east side of the property. The replacement garage would be 6 m x 4.5 m, with a pitched roof of no more than 4 m high. It would therefore fall within the scope of the Town and Country Planning (General Permitted Development Order) 1995 and would not require planning permission." (paras 10–11)
In September 2002 the objectors commenced proceedings in the Exeter County Court for an injunction to restrain the applicants from carrying out the development in breach of the restrictive covenants. On 6 January 2003, an order was made declaring that the objectors were entitled to enforce the covenants by virtue of a scheme of development imposed in the 1952 conveyances. It was conceded by the applicants, and declared by the court, that the construction of a second dwelling-house on the application land would be a breach of the first covenant, and further that:
"The erection of any gate pillar(s), gate(s), garage or wall(s) on any part of (the hatched land) would amount to a breach of (the fourth covenant)."
The judge stayed the proceedings to enable the present application to be made to the Lands Tribunal for modification of the covenants.
The application to the Tribunal
The application was made on 11 th September 2003. It sought the modification of the restrictions:
"so as to permit the following user ("the User") subject to such variations (if any) as the Tribunal may authorise or require, namely
(a) the construction and use of a single storey dwellinghouse, with garage and driveway thereto, pursuant to planning permission granted on 14 June 2002 and subsequent approval of reserved matters;
(b) the construction and use of a replacement garage for the existing house and a driveway thereto;
(c) appropriate gateway pillars and walling at the road frontage."
The grounds relied on were paragraphs (aa) and (c) of section 84(1) of the 1925 Act (see below) ; paragraph (c) is no longer in issue.
The development was described by reference to the appeal decision granting permission, the approved plans of reserved matters, and a layout plan 386/02/04E. The latter plan appears to have contained the only information given in the application about the proposed replacement garage and access to it, but further information was given in evidence by the applicant's expert witness (Mr Huntington-Whiteley FRICS). He referred to a revised plan ("386/02/04G") which showed an altered location for the garage 5.05m from the existing dwelling. He also gave the proposed dimensions for the garage, to support the claim that it would fall within the scope of the General Development Order, and therefore not require a specific planning permission. I proceed on the assumption that this evidence, and the revised plan, formed the basis for the Tribunal's description of this part of the development and of its decision on the merits.
The Tribunal summarised the objectors' case (para 12). One of the points made related to the effect of the additional access, which had not been included in the planning application (because specific permission was not needed) and had not therefore been considered by the planning inspector. It was argued that:
"… the proposed user of the application land was not reasonable because of the squashed and restricted nature of the proposed two accesses to the site. Details of the access to the new garage serving the existing house on the site were not provided to the Inspector when he was considering the planning appeal for the proposed bungalow. They were first provided to the local planning authority on 23 December 2003, when a revised site plan was submitted in connection with the approval of the proposed landscaping scheme including boundary planting and fencing."
More generally, it was claimed that the restrictions secured "practical benefits of substantial value" in the following ways:
"… the preservation of the view from their homes or gardens or the street scene of the close as a whole; the preservation of privacy and a sense of spaciousness and the prevention or restriction of overlooking and proximity; the prevention of the noise and artificial lighting that would be generated by the presence of a further house; the exclusion of the traffic and possible parking problems that would be generated by the presence of a further house; the right to object to intensification of development in contravention of the restrictions and to preserve the status quo and a sense of spaciousness; the assurance of the integrity of a well-maintained and successful building scheme, the erection of the proposed house materially altering the context in which future applications to the Tribunal would be considered; the prevention of the risk of any damage to the common sewer as the result of the construction of a new property; the prevention of the devaluation of the objectors'...
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