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[2001] EWLands LP_10_2000 (30 July 2001)

LP/10/2000

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – restriction to dwellinghouses only on at least one quarter of an acre each – application to amend this limitation so as to permit use as residential home for the elderly – grounds (a) and (aa) – whether a covenant can be deemed partly obsolete – whether actual restriction partly obsolete – whether reasonable use – public interest – injury to objectors – application refused – Law of Property Act 1925, s.84(1)(a)(aa)(1A)(1B)

IN THE MATTER of an APPLICATION under SECTION 84 of the

LAW OF PROPERTY ACT 1925

BY ADNAN AZFAR

Re: 34 Kensington Road,

Selly Park,

Birmingham,

B29 7LW

Before: N J ROSE FRICS

Sitting at West Midlands Rent Assessment Panel, 2nd Floor, East Wing,

Ladywood House, 45/46 Stephenson Street, Birmingham, B2 4DH

on 17-18 and 25 May 2001

The following cases are referred to in this decision:

Re Lloyd's and Lloyd's Application (1993) 66 P & CR 112

Re Towner's and Goddard's Application (1989) 58 P & CR 316

Re Fisher & Gimson (Builders) Ltd's Application (1992) 65 P & CR 312

Re Marcello Developments Ltd's Application (LP/18/1999 and LP/31/2000, unreported)

Re Milbury Care Services Ltd's Application (LP/78/1995, unreported)

Re Shah and Shah's Application (1991) 62 P & CR 450

Re Bromor Properties Ltd's Application (1995) 70 P & CR 569

Gilbert v Spoor [1983] Ch 27

Re Clement's Application (LP/06/1997, unreported)

Re Cartner's Application (LP/19/1998, unreported).

Timothy Jones, instructed by Williamson and Soden, solicitors of Shirley, Solihull for the Applicant

Anthony Radevsky, instructed by Lee Crowder, solicitors of Birmingham for the Objectors.


 


DECISION

1. This is an application by Mr Adnan Azfar ( the applicant) under section 84 of the Law of Property Act 1925 (the Act), seeking the modification of a restrictive covenant affecting freehold land consisting of a dwellinghouse at 34 Kensington Road, Selly Park, Birmingham, B29 7LW (the application land), so as to permit the premises to be used as a residential home for the elderly.
2. The application land consists of a two-storey detached house built in 1938 on a site of 1¼ acres. It includes a large garden with a variety of mature trees and there is a large pond at the rear. The house is situated on the northern side of Kensington Road, roughly mid-way between its junctions with Selly Park Road to the west and Pershore Road to the east. It lies in Selly Park, approximately 2¾ miles south of Birmingham city centre. The area is predominantly residential but there are institutional uses, such as a convent and elderly persons' homes nearby. The house has five bedrooms, two reception rooms and a double integral garage with domestic outbuildings. It is positioned fairly close to the road and to the east of the plot. There are detached houses immediately to the east (no.32) and west (no.36) and at the rear the site abuts residential properties in Southbourne Close.
3. The relevant restriction was imposed by a conveyance dated 20 May 1864 which contained, among others, the following covenants:

"1. … that no … buildings other than dwellinghouses with suitable outbuildings and offices should be erected or allowed to be upon the said piece of land or any part thereof …

2. And that every dwellinghouse whether detached or semi-detached should have attached to it at least one quarter of an acre of land including the site of such dwellinghouse …

3. And that not more than two dwellinghouses attached together should be built on any part of the said piece of land thereby conveyed."

4. It is agreed that the application land forms part of the Selly Hall Estate, which itself forms part of Selly Park and which is subject to a scheme of development or general building scheme. It is also agreed that the objectors represented at the hearing are entitled to the benefit of the restriction. Those objectors are Mr and Mrs Adrian Jones who live at 32 Kensington Road; the Family Housing Association (Family) who own 36 Kensington Road; Professor and Mrs Richard Batley who reside at 38 Kensington Road and 79 members of the Selly Park Property Owners Association (the Association), treating joint owners as individual objectors. In addition, formal objections were made and not withdrawn by Mr H K Lakey of 28 Kensington Road, Mr B Sherwood of 10 Kensington Road and Mr and Mrs D A Payne of 5 Kensington Road, but those objectors did not appear and were not represented at the hearing.
5. The original application to the Tribunal relied upon paragraph (a) of section 84(1) of the Act for discharge of the restriction and upon paragraphs (aa), (b) and (c) for its modification. Before me, however, only modification was sought, under paragraphs (a) and (aa).
6. Planning permission for the extension, conversion and change of use of the application land to a residential home for the elderly was granted on 19 November 1998. This consent was subject to various conditions, including a requirement that no more than 25 residents should be accommodated at any time. Following an amended application, permission was granted on 6 January 2000 for the change of use of the application land and the erection of a two-storey side/rear extension and external alterations to create a residential home for the elderly, incorporating additional basement level parking and 30 single bed spaces. The footprints of the two developments were the same, although the total floor area of the second was a little larger, since it included five parking spaces at basement level. Matters which have been reserved for subsequent approval by the local planning authority include landscaping, tree surgery and protection, refuse storage, soundproofing and treatment and extraction of fumes. The gross floor area of the existing house is 346.9 m² (3,732 sq ft); that of the extension now proposed is 853.96 m² (9,188 sq ft).
7. Counsel for the applicant, Mr Timothy Jones, called Mr A I Shepherd, FRICS and Mr N S Gough, BSc, DipTP, FRICS, MRTPI, both directors of Bigwood Group Plc, chartered surveyors of 51/52 Calthorpe Road, Edgbaston, Birmingham.
8. The applicant thought it was significant that, before planning consent was granted for the proposed extension, the application had received careful consideration from various officials of Birmingham City Council, having expertise in matters such as noise, disturbance and traffic safety. None had had any objection to the proposal. In addition, the site was not within one of the planning authority's areas of restraint for institutional use. An elderly person's home was essentially a housing use, proposed to be provided in what was a predominantly residential area. There were similar institutional housing uses on the Selly Hall Estate and elsewhere in the vicinity. The proposal was consistent with the City of Birmingham Unitary Development Plan 1993 (the UDP).
9. Mr Gough produced a schedule of what he termed "institutional type" properties within Selly Park. The 30 or so properties on this schedule included premises used as care homes, nursing homes, hostels, hotels, schools, sheltered housing, a family support centre, a church, commercial premises, flats, houses in multiple occupation and a hospice. He considered that the proposal to establish a residential home for the elderly in Selly Park was therefore in context. Moreover, St Paul's Convent together with its grounds was situated opposite the application property and had a long frontage to Kensington Road.
10. The provision of residential homes for the elderly within predominantly residential suburbs such as Selly Park was in principle an acceptable use along with other types of institutional residential uses. Whilst the City of Birmingham had sought to restrict institutional uses in certain districts, it had not done so with respect to Selly Park. Mr Gough inferred that the City Council, having considered the matter, had determined that there was no need to restrict the provision of care homes in Selly Park.
11. Mr Gough produced ordnance survey plans of the relevant area produced in 1864, 1884 and 1957. These showed that Selly Park in general and the Selly Hall Estate in particular had changed greatly since the covenant was imposed. The UDP recognised that the balance and the type and densities of new housing in any area would need to reflect particular groups with special housing needs, including the elderly. The 1991 census indicated that in the Selly Oak ward, which included the districts of Selly Oak, Bournbrook, Selly Park and part of Stirchley/Weoley and Bournville, the proportion of residents over the age of 75 was 8.7%, compared with 6.7% in the city as a whole. This figure may be likely to increase, given the age structure of the population generally and the longer life span of residents in England. Mr Gough's general market experience led him to conclude that there was a continuing demand for new accommodation for elderly people, particularly because the over 55s were becoming a larger proportion of the population generally.
12. Some of the mature trees on the site would be removed if the permitted development went ahead, but replacement trees were proposed. Thick planting to all three boundaries would be retained. It was also proposed that an ornamental rose garden on the frontage of the site would be retained.
13. Mr Gough accepted that the proposed modification of the restriction would adversely affect the value of certain neighbouring properties. The owners of those properties, however, would receive appropriate compensation. Taking that into account, Mr Gough considered that the restriction, in impeding the proposed use, did not secure to those entitled to the benefit of it any practical benefit of substantial value or advantage to them.
14. Mr Shepherd considered that people purchased homes in Selly Park because it was a pleasant area, convenient for the city centre, the Queen Elizabeth Medical Centre, a number of hospitals and the University of Birmingham. These facilities were of far more importance than the fact that the houses were subject to a restrictive covenant.
15. In the course of closing submissions, Mr Jones indicated that the applicant was prepared to accept the following conditions, should the Tribunal consider them to be appropriate. Firstly, that no nursing home shall be operated on the application land. Secondly, that in the event of a residential home for the elderly being erected on the application land, no additional residential home shall be erected on it. Thirdly, in order to allow a small amount of flexibility, that no more than 32 elderly persons shall be accommodated in any residential home for the elderly on the land. Mr Jones added that, in giving this indication, the applicant was not rejecting any other proposed condition that the Tribunal might consider appropriate.
16. Mr Anthony Radevsky of counsel appeared for all the objectors who were represented at the hearing. He called as his principal expert witness Mr D H Dunger FRICS, principal of Dunger and Co., chartered surveyors, of 39 George Road, Edgbaston, Birmingham. His second expert witness was Mr L T Sparks, MRTPI, MRIBA, DipTP, DipArch, who had been Director of Planning and Architecture at Birmingham City Council between 1991 and 1999. He had, however, had no involvement in the handling of the planning applications for the application land, since he lived, and still lives, within the area in which that property is situated. He joined the Association after leaving his job with the Council.
17. Mr Radevsky also called Ms Judith Millington, a tenancy support administrator with Family, the owner of "Pinetrees", 36 Kensington Road, which is a registered care home and houses four autistic adults; Mr P J Rigby, owner and occupier of No.18; Mr A L Jones, owner and occupier of No.32 and Professor R A Batley, owner and occupier of No.38.
18. Mr Dunger said that Kensington Road contained a wide variety of predominantly residential properties which were generally constructed between 1870 and the 1940s. It was a popular and high quality residential location, in which houses and bungalows realised fairly substantial prices. The street scene was pleasant and the thoroughfare, as well as the area generally, was well wooded.
19. He considered that the development proposed on the application land would set an extremely undesirable precedent and would inhibit the Association's policy of seeking to maintain the quality and environmental balance of the Estate. He also thought that the amenity and quiet enjoyment of properties fronting Kensington Road – apart from the convent, to which there was no vehicular access at this point – would be adversely affected by the increase in traffic, namely staff and visitors' vehicles, catering deliveries and public service vehicles such as refuse lorries and ambulances.
20. There would be two vehicular access points to the proposed residential home, both close to the boundaries of the adjoining properties. The access drive and pavement cross-over to No.32 were directly adjacent to the existing vehicular access to the application property and the proposed parking space No.10. The latter was too narrow to be used for most vehicles delivering goods. Any vehicles occupying that space would be forced to reverse out into the road, causing a potential safety hazard. Only space 10 was located in a suitable position for delivering food to the proposed kitchen. If a food delivery vehicle was too wide to use that space, or if the space was occupied by another vehicle, the food lorry would park in the road.
21. The second vehicular access, at the western end of the site, gave on to a driveway leading to the principal parking area, consisting of five spaces in the basement and four spaces plus ambulance bay at ground level. This driveway was 143 feet long, starting at the back of the pavement. It extended 116 feet beyond the rear of the adjoining property, No.36. Traffic using the parking spaces would therefore have an adverse effect on the quiet amenity of the rear garden of No.36. Moreover, whilst the number of parking spaces proposed was sufficient to comply with the local planning authority's guidelines, problems would occur in practice. Firstly, there was potential for a traffic jam if the ambulance bay was occupied. Secondly, if a vehicle driver discovered that all the spaces were full, he would have to reverse back along a driveway, 143 feet long and 10 feet 6 inches wide. Finally, the only parking space visible from the road was No.10. Most people were lazy. They would be likely to park in the road if No.10 was occupied.
22. Kensington Road itself, at 5.5 metres wide, was narrower than most roads in the area. If vehicles were parked on either side, even tightly against the kerb, it would become a single lane thoroughfare.
23. Mr Dunger considered that the construction of an extension of over 9,000 square feet on land currently used as a back garden would constitute an obtrusive and visually unacceptable structure, prejudicing the privacy, amenity and quiet enjoyment of the rear gardens of neighbouring properties. There was also a danger that, if the proposed residential care use proved in the future not to be financially viable, the application land might then be used for an even less acceptable purpose, such as a remand home or bail hostel.
24. The kitchen of the proposed home would be located within 3.4 metres of the common boundary with No.32. It would serve 30 residents and about 6 staff and would thus provide more than 100 meals every day. Even if a sophisticated air extraction scheme were provided and the kitchen windows remained closed, some smells would be bound to escape to the adjoining property. The proposed bin store would also be close to No.32. It would similarly be the source of escaping smells, through ventilation bricks and when its door was opened.
25. Turning to the non-conforming uses to which Mr Gough had referred, Mr Dunger questioned whether some were, in fact, in breach of covenant; the appearance and fundamental character of others, whilst technically in breach, had remained unaltered; some were outside the covenanted area or were occupied by the local authority or statutory undertakers, who had the power to override existing covenants; several were situated directly adjacent to Pershore Road, a busy main road where the Association had accepted that enforcement of restrictive covenants should be less rigorous than in the inner areas of the Estate.
26. Mr Sparks said that the submission of the original planning application for the enlargement and change of use of the application land had resulted in wide ranging objections being expressed by members of the public. He explained that planning decisions must be taken in accordance with the development plan and other material planning considerations. Where a proposal complied with the development plan, there was a presumption in favour of permission. If a local planning authority took a decision that conflicted with a development plan and other planning considerations, it may be held to have acted unreasonably and could incur an award of costs in the event of an appeal. Therefore, the weight of public opinion (in terms of the number of objectors rather than the strength of their case) and matters dealt with under other legislation, such as restrictive covenants, should not influence the council's judgment. In this case, the lack of detailed control (in the form of a designated conservation area, listing or tree preservation order) and the general compliance of the proposal with criteria in the policy for care homes, left the council with no grounds for refusal which could be confidently defended on appeal.
27. The only grey area related to the cumulative effect of another institutional use on the residential character of Selly Park. Since the council had not designated Selly Park as an area of restraint, in which there would be a presumption against further institutional uses, it did not have a strong policy background for refusing permission on that basis alone, when other planning criteria and UDP policy had not been breached. By comparison, the restrictive covenants were far clearer and more precise, with a clear proscription against business use in the area. Only a strict enforcement of those covenants could prevent the gradual build up of institutional uses in the area to the point where its residential character had been so undermined that the council accepted the need to declare an area of restraint and withhold planning permission. That may be akin to "locking the stable door after the horse had bolted".
28. Notwithstanding the decisions of the planning committee (in which he had not been involved) it was Mr Rigby's own personal opinion that the proposals for the application land were damaging to the very special character of Selly Park. This was an area of exceptional character, well located in relation to the hospitals, Birmingham University and the city centre, for whose employees it provided an attractive area in which to live. This reduced the extent of commuting that would take place if those families lived further out of the city and aided recruitment to many important city institutions. The spacious layout of the estate, with its large gardens and well-wooded surroundings, also accommodated an unusual range of wild life for an urban area. Those important qualities were undermined whenever development was allowed to erode the spaces between buildings. Unchecked, it would result in Selly Park coming to resemble any other suburb.
29. The house and garden on the application land were exceptional, even for Selly Park, as an outstanding example of pre-war architecture and landscape design. The garden, in particular, with its lake and mature planting, was one of the finest in the area. Its extra-ordinary beauty and serenity would be destroyed by the development of a large residential block behind the house.
30. Ms Millington explained that the four autistic residents of Pinetrees lived together as a family unit, assisted by two carers in the day, with one carer sleeping in during the night. Autistic people required space and preferred a quiet environment. Most accommodation provided for autistic people was located in rural areas, but Pinetrees was not far from the centre of Birmingham and close to two main roads, which made it easier for members of staff to travel to and from work. It was in a quiet area with a spacious garden, a feature shared with adjoining properties. When in the garden it was easy to believe that one was in a rural area as it was very peaceful. Kensington Road had very little traffic, so noise was minimal in the garden.
31. The extension and development of the application land would take up about half of the well-established garden. The building of the proposed extension, together with the redevelopment of the existing house, would disturb the occupiers of Pinetrees to such an extent that they may have to leave before the development was completed. If they stayed, the increase in traffic in Kensington Road, the noise coming from the nearby car park from visitors and commercial vehicles, as well as the noise from the 30 person residential home would destroy the tranquillity of Pinetrees and disturb the residents. Pinetrees was worth far more to Family than simply its value on the open market. It provided a quality of life for four people that would be hard to provide anywhere else.
32. Mr Rigby and his wife purchased No.18 about four years ago. At the time he had been taken with the fact that the area gave a feeling of serenity and space, which was protected by the restrictive covenant. He believed that any modification of the covenant may be used to justify further modification in due course and this process was likely to lead to a gradual erosion of the protection from which the area currently benefited.
33. Mr Jones has lived in No.32 with his family for seven years. He was attracted by the nature of the area, being green and quiet although close to the centre of Birmingham. He and his wife liked the large garden which they, together with their children, used a lot and whose charm and quiet enjoyment would be lost if development went ahead. Not only would they be able to see the extension, but the kitchen would be next to their house and would lead to smells being carried into their garden and their home. They also feared noise from air extraction and air conditioning units. In addition, he was concerned at the adverse impact and danger from increased traffic and congestion caused by visitors parking on the road and/or the pavement, and at the visual offence which would be caused by refuse and signage for the care home. He was worried that the area would become too institutionalised and lose its character as a residential area.
34. Professor Batley and his wife have lived at No.38 for 23 years. He works at Birmingham University, which is close to Selly Park. The location of his property; the fact that it is in a quiet residential area, fairly close to the city centre and the existence of the restrictive covenants were key reasons for choosing it. He also appreciated the large garden, which gave a feeling of space and tranquillity, despite being in a suburb. The proposed development would overlook the garden and block the light and view that he and his wife currently enjoyed.
35. The surrounding area contained a number of rented houses and apartments, let to students of Birmingham University. There had, however, been little change to the Selly Hall Estate and no fundamental change in Kensington Road. He was also concerned that the proposed development would lead to an increase in street parking and traffic generally. This would bring an increase in noise as well as risk to local residents, many of whom were elderly or were families with young children.

Decision

36. The application as amended is made under paragraphs (a) and (aa) of section 84(1) of the Act and I shall consider each in turn. Under paragraph (a) the issue is whether

"by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete."

37. Mr Gough considered that the covenant was obsolete to the extent that it prevented the introduction of residential institutional uses to the area, but only in that respect.
38. In the course of his closing submissions Mr Jones indicated that it would be appropriate at this level to follow previous decisions of the Tribunal, including Re Lloyd's and Lloyd's Application (1993) 66 P & CR 112, which held that ground (a) cannot be used to declare part of a covenant obsolete. When I queried the correctness of that approach, Mr Radevsky referred to the following sentence in Preston and Newsom's "Restrictive Covenants", Ninth Edition:

"It is also sometimes contended that a restriction is obsolete in so far as it happens to prohibit activity which has become acceptable, but the Tribunal is not willing to find that a restriction is partly obsolete."

39. In fact, there have been other cases where the Tribunal has adopted a different approach. After referring to Re Towner's and Goddard's Application (1989) 58 P & CR 316 and Re Fisher & Gimson (Builders) Ltd's Application (1992) 65 P & CR 312, Scamell's "Land Covenants", 1996 comments on the matter as follows:

"Further, in the very recent case of Re Lloyd's and Lloyd's Application, the Tribunal expressed the view that it was not possible to deem a covenant against carrying on any trade or business (except specified ones) as obsolete in so far as it prevented use as a communal care home, since if the covenant 'cannot be deemed obsolete as a whole, it cannot be deemed obsolete at all.' However, the decisions in Re Associated Property Owners Ltd's Application, and Re Hackney Borough Council's Application, referred to above, where such a power was exercised were not cited in any of the three previously cited cases and it is submitted that since the language of section 84(1) clearly contemplates that there may be either a discharge or a modification of a restriction which is deemed to be obsolete, the approach adopted by the last two cited cases is correct and that a restriction may be deemed to be obsolete as to such one (or more) of its objects so as to enable a particular modification to be ordered."

40. In his recent decision on Re Marcello Developments Ltd's Application (LP/18/1999 and LP/31/2000, unreported) the President said:

"In considering whether each or any of the restrictions is obsolete, I bear in mind in particular two matters which were urged on me by Miss Shea and which I accept. The first is that the question of obsoleteness falls to be considered in relation to the development that is proposed. Miss Shea made it clear on behalf of the applicant that modification was sought only to the extent necessary to enable the development that had received the planning permission to proceed."

41. I respectfully adopt that passage as embodying the correct approach; that where modification on ground (a) is sought, the question of obsoleteness falls to be considered in relation to the particular object or objects of the restriction that is or are in issue. It is therefore necessary to consider whether Mr Gough's view as to the partial obsoleteness of the covenant is well-founded. In this connection, there was a difference between the parties as to the extent of the neighbourhood whose character falls to be considered. Mr Gough's schedule of "institutional type" properties included a number which were outside the boundaries of the Selly Hall Estate. Mr Radevsky submitted that it is only the area covered by the particular covenant in question which should be considered. I am not sure that that approach is correct, but the distinction is not material for the purposes of determining this application. The original object of the covenant was to ensure that the Estate was developed as a residential estate with low-density dwellinghouses. Whether one approaches the matter by reference to the area of the Selly Hall Estate, or the rather larger area suggested by Mr Gough's schedule, it is plain that the overriding use of properties in the neighbourhood is still low-density housing. The fact that there are also a limited number of other uses – several of them fronting Pershore Road, which is fundamentally different in character from the remainder of the area – does not mean that the original object of the covenant is not still capable of fulfilment, by affording a real protection to those who are entitled to enforce it. Indeed, as Mr Radevsky pointed out the objectors, by objecting, have already secured from the applicant an offer to accept various conditions on the use of the application land, which would not have been made in the absence of the restriction. I conclude, therefore, that the covenant is not obsolete. Accordingly, the applicant is not entitled to succeed on ground (a).
42. The applicant also relies on para (aa). Here the issue is whether the Tribunal is satisfied

"(aa) that (in a case falling within subsection (1A) below) the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user…

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either –

(i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification …

(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Lands Tribunal is satisfied that the restriction, in impeding that user, either –

(a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b) is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.

(1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Lands Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances."

43. Both valuation experts, Mr Shepherd and Mr Dunger, gave evidence as to the value of Nos. 32, 36 and 38 at the present time and also on the assumption that the proposed development were to take place. None of the expert reports lodged prior to the hearing referred to the possibility that the use of the application land would change from that of the existing single dwellinghouse if the application for modification failed. In the course of the hearing it was suggested that planning permission might be granted for the complete redevelopment of the application land with a number of new houses, or for the erection of an additional house or houses on it. There was, however, no evidence as to the likelihood of such alternative development taking place, nor as to the financial viability of such a project. In those circumstances, I propose to consider the matter on the assumption that the choice is between the implementation of the applicant's current proposals and the retention of the existing house.
44. Mr Radevsky submitted that the proposal to build a very large residential home for the elderly was not a reasonable user of the application land. I do not agree. It is clear from the evidence that there is a need for such homes in the Birmingham area and the proposed development would help to meet that need. The fact that planning permission has been granted for that development, although not conclusive, suggests that the local planning authority considered it would be a reasonable use and I see no reason to disagree with that view.
45. Mr Jones suggested that it would be contrary to the public interest to impede the proposed user. He said that the public interest of establishing a residential care home, where the need for such homes was growing and both public-sector and private-sector homes were closing, was obvious. There was also a public interest in spreading such homes across Birmingham rather than confining them to particular areas, to the disadvantage of the elderly concerned and their relations.
46. Mr Radevsky, on the other hand, submitted that there was no evidence that impeding the proposed user was contrary to the public interest. There was no evidence that the public interest required having an old people's home on the site. The only evidence on this aspect was given by Mr Gough. His evidence was based solely on his general knowledge, such as that obtained from newspapers. He had carried out no research into the demand for residential homes in this particular area. Mr Radevsky submitted that the position was, therefore, similar to that in Re Milbury Care Services Ltd's Application (LP/78/1995, unreported) where the President (distinguishing Lloyd) said:

"That conclusion points to a fundamental difference between that and the present case. It is evident that there is a need to accommodate these old ladies in the community, that these premises are suitable and that the Applicants provide the necessary service. But it formed no part of the Applicants' case that accommodation fulfilling the necessary requirements could not be found elsewhere in Sandwell, and there was no evidence to suggest that alternative accommodation would be impossible or difficult to find. That seems to me to be unsurprising in view of the locational requirements, which are not particularly demanding in terms of proximity to community facilities, the type of accommodation required and the essence of the Applicants' case – that the use was a residential use which was entirely appropriate in a residential area. The Applicants' case on public interest is not made out."

47. I accept Mr Radevsky's submissions on this aspect. Accordingly, the current application fails to satisfy the requirements of sub-section 1A(b).
48. As far as subsection 1A(a) is concerned, Mr Jones submitted that it was possible for there to be a "loss or disadvantage", but still a finding that the restriction did not secure practical benefits of substantial value or advantage. Furthermore, in determining whether the application fell within the sub-section, it was necessary to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permission in the relevant areas. In that respect a clear pattern of homes being permitted in the relevant areas had been established.
49. Mr Jones suggested that many would find it astonishing that anybody could consider a residential home for the elderly to be an undesirable neighbour. It was not the sort of development that was labelled "nuisance neighbour". The objectors' concerns about nuisance from traffic and parking, noise and visual impact were all overstated. The only stage at which a relevant expert had considered the issues raised by the objectors was when the planning applications were being considered by the local planning authority. Appropriate conditions had been imposed in the consents wherever those concerns were considered to be justified. Moreover, as Ms Millington had accepted, neighbours' fears about institutional uses had often proved to be unfounded. It was also important to bear in mind the extensive controls that would exist over the proposed home: development control; residential home legislation which involved a substantial continuing supervision; the right of neighbours to bring proceedings for common-law nuisance; and the duty of the local authority (and the right of neighbours) to bring proceedings for statutory nuisance. In assessing the likelihood of those powers being invoked it was clearly relevant to bear in mind the considerable strength and activity of the Association and the resources of the objectors. Mr Jones suggested that guidance could be obtained from the Tribunal's previous decisions in Re Lloyd's and Lloyd's Application (1993) 66 P&CR 112 and Re Shah and Shah's Application (1991) 62 P&CR 450.
50. In response Mr Radevsky argued that, even in an ordinary case, the fact that planning permission had been granted for a particular form of development was far from conclusive; the existence of restrictive covenants was a wholly different matter. The present case, however, was not an ordinary one, since the application land formed part of an estate which was subject to a general building scheme. There was therefore a greater presumption that restrictive covenants would be upheld. He referred to Re Bromor Properties Ltd's Application (1995) 70 P & CR 569.
51. Mr Radevsky submitted that the various matters referred to by Mr Dunger meant that the fears of nearby residents were real, not fanciful and the effect on them if the application were successful would be marked. Although other premises on the Selly Hall Estate contravened the restrictive covenant, the quiet residential nature of the roads and properties had been preserved where possible. This tranquil quality and spacious feel would be lost if this development, or others like it were allowed to proceed. The objectors were particularly concerned with the effect of the proposal on Kensington Road itself. He concluded that, whether the matter were considered in terms of the objectors' right to retain the existing character of the estate, or in terms of the effect of the proposed development on the value of neighbouring properties the restriction, in impeding the proposed user of the application land, secured to persons entitled to the benefit of it practical benefits of substantial value or advantage. He referred to Gilbert v Spoor [1983] Ch 27; Re Clement's Application (LP/06/1997, unreported); Re Milbury Care Services Ltd's Application (LP/78/1995, unreported) and Re Cartner's Application (LP/19/1998, unreported).
52. In company with representatives of the applicant and the objectors I inspected the application land and viewed it from 32, 36 and 38 Kensington Road. I also inspected externally various properties in the area which are used for purposes which do not comply with the restrictive covenant. Having done so, I am in no doubt that the application under subsection (1A)(a) must fail.
53. The applicant's proposal involves the construction of a very large addition, extending approximately 80 feet beyond the rear of both the existing house and the neighbouring houses on either side. From a single private house, the property is intended to be transformed into a 30 bedroom nursing home, with 10 car parking spaces. The accommodation will include, in addition, bathrooms and WCs, three lounges, a kitchen and dining room, a library and ancillary accommodation, including staff room, laundry, two offices and stores. There will, in addition to the residents, be up to 6 staff on site at any one time, with more at busy periods such as the morning. Some mature trees will be removed.
54. I am satisfied that the proposed development would have a substantial adverse impact on those living in Kensington Road. Notwithstanding the grant of planning permission, implying the provision of a technically adequate number of spaces on the site, I consider that people visiting the premises will inevitably park in the road. I agree with Mr Dunger that human nature is such that many visitors will not drive down a long single track driveway to a car park which they cannot see from the road, when there is a kerb or verge on which to park. There will be visits to the residents from family and friends, staff coming and going, ambulances, trades-people, catering vehicles, doctors' cars and refuse lorries.
55. The effect on nearby residents will be marked. They can expect noise from traffic, cooking smells, refuse smells, parking problems and interference with access to their properties. Moreover, it is clear from my inspection that the very large extension will be unsightly for the immediate neighbours. I have not overlooked the fact that planning permission has been granted for the proposed development. There is no reason to suppose that the local planning authority failed to give careful consideration to the impact of the scheme on the neighbourhood and imposed what it considered to be adequate conditions to minimise that impact. The question that I must answer is, however, different from that which faced the local authority.
56. The planning application fell to be considered against the background of the UDP. This recognised that new housing in any area would need to reflect, among other matters, the special housing needs of the elderly. In his report to the planning committee which approved the home for 25 residents on 19 November 1998, the planning officer concluded, among other matters, that:

"Parking to meet the standard is provided. Space remains around proposed residential homes (sic) to protect neighbouring properties from undue (my italics) noise, disturbance, overlooking or loss of privacy."

57. What is undue disturbance, etc. for the purpose of forming such a planning judgment – which is a matter of balance – cannot be conclusive for the purposes of sub-section (1A)(a). Under that provision, the need for special housing for the elderly is not relevant. In my opinion, by impeding the construction of a residential home for the elderly on the application land, the restriction secures to neighbouring residents in Kensington Road practical benefits of substantial advantage to them. That would be my conclusion even if the land did not form part of a general building scheme; the fact that it does reinforces it.
58. The benefits secured by the restriction are also on the evidence of substantial value. Mr Dunger and Mr Shepherd agreed that Nos.32, 36 and 38 are currently worth £325,000, £200,000 and £275,000 respectively. Mr Dunger considered that the proposed development would reduce these values by £45,000 (13.8%), £40,000 (20%) and £10,000 (3.6%) respectively. In answer to a question from me Mr Shepherd said that, if he took into account the risk that the proposed care home would fail and a less attractive use were then permitted, his equivalent figures would be £40,000 (12.3%), £40,000 (20%) and £7,500 (2.7%) respectively. (Assuming such risk had to be ignored, his figures were £30,000, £30,000 and £5,000.)
59. Mr Jones submitted that if one reflected in the diminution in value exercise the risk of a future planning permission, this would lead to double compensation being paid if that risk should materialise. I do not agree. If, as both valuers accept, the fear of a future change of use would affect the present value of neighbours' houses, it is not contrary to principle to take that into account when considering whether the right to resist the development currently proposed is of substantial value to the neighbouring householders. It is not double counting. If there is, in fact, no future change of use, then the present value of the property is still affected adversely. If money were an adequate compensation for the loss suffered as a result of the modification currently proposed, and there were a further change of use and a further application made to the Tribunal, the applicant could then ask for the original award of compensation to be taken into account when calculating the compensation to be paid on the later occasion.
60. Mr Jones also submitted that the lower compensation figures put forward by Mr Shepherd – on a basis which excluded the risk of a future application – were adequate. Mr Radevsky disagreed. He argued that it was not appropriate to find that money will be an adequate compensation if the benefit is of substantial value or advantage. I agree with Mr Radevsky on this point. It is clear that, if the application succeeds, the present value of the two immediately adjoining houses will each be reduced by at least £40,000, representing 12.3% and 20% of their current value. The right to prevent such development is clearly of substantial value to those householders. It is therefore unnecessary for me to decide whether the payment of money will constitute adequate compensation for them, but if it were necessary my conclusion would be that it will not.
61. As for subsection 1B, the residential homes permitted in the area, or which might be permitted under present planning policy, do not have the effect of removing the benefits of substantial value and advantage that are derived from the restriction.
62. As the applicant has not succeeded in establishing either of the grounds relied upon, I have no jurisdiction to modify the restriction. The application is therefore dismissed.
63. A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is decided.

Dated: 14 June 2001

(Signed): N J Rose

ADDENDUM

64. I have received written submissions on costs from the parties
65. The objectors apply to have their costs paid by the applicant, since they were wholly successful in defeating the application.
66. The applicant accepts that the objectors acted reasonably in resisting the application that formed the basis of the case and that the normal consequence of an applicant losing is that he must expect to pay the objectors' costs. He suggests, however, that the normal rule should not apply and the objectors should pay a proportion of their own costs, because they acted unreasonably in the following respects:

(1) Failing to agree a plan at an early enough stage.

(2) Failing to supply Lands Tribunal decisions requested by the applicant.

(3) Failing to meet the applicant in order to discuss a compromise.

(4) Their expert, Mr Dunger, relied in his report on the penultimate planning permission instead of the final one and this led to additional time being spent on issues at the hearing.

(5) Their witness, Mr Sparks, was unable to attend on the first two days and, had be been able to attend, the hearing may well have concluded in two days.

67. So far as points (1) and (2) are concerned, on the basis of copy correspondence and plans provided by the parties, I am not persuaded that the applicant's criticisms are justified. Nor can the objectors properly be criticised for failing to compromise in a case where their position has been vindicated. Moreover, I do not consider that either the length of the hearing or the costs incurred by the parties were materially increased by Mr Dunger's decision not to refer to the final planning permission in his report. Finally, in my view the length of the hearing was not increased by Mr Sparks' non-availability until the third day. There being no justification for a departure from the normal rule, I order that the objectors shall recover their costs of the application from the applicant. Such costs are to be agreed or, in default of agreement, assessed on the standard basis by the Registrar of the Lands Tribunal in accordance with the Civil Procedure Rules.

Dated: 30 July 2001

(Signed): N J Rose