The following cases are referred to in this decision:

Elliston v Reacher [1908] 2 Ch 374

Reid v Bickerstaff [1909] 2 Ch 305

Re: Dolphin’s Conveyance [1970] Ch 654

Shepherd v Turner [2006] 2 P & CR 28

Re: Bass Limited’s Application (1973) 26 P & CR 156

Re: Snaith and Dolding’s Application (1995) 71 P & CR 104

Re: GR & AL Developments Ltd’s Application [2009] UKUT 238 (LC) (LC ref: LP/36/2008)

DECISION

Introduction

1. The applicants in this case, Mr Alan Perkins and Mrs Pauline Perkins, seek the modification of a restrictive covenant burdening land (registered under title no. HD 12873) at 87 Peplins Way, Brookmans Park, St Albans, Herts (the application land) so as to permit the construction of a new detached private dwelling house and garage within the grounds of that property in accordance with a planning consent granted by Welwyn Hatfield Borough Council on 17 December 2009 (ref: S6/2009/2081/FP).

2. The restriction is contained within a transfer dated 21 March 1955 (“the 1955 transfer”) between Herbert William Sawyer and Leonard Thorpe (Mr Thorpe being the applicants’ predecessor in title). At the time of the transfer the land formed part of title no. HD 11303 and, by that transfer:

“THE Purchaser for himself and his successors in title (but not so as to bind himself personally after he shall have parted with all interest in the land hereby transferred) hereby covenants with the Vendor and his successors in title for the benefit of the Vendor’s adjoining and neighbouring land in Peplins Way Brookmans Park aforesaid and all and every part thereof being the remainder of the land comprised in the above mentioned title to observe and perform the restrictive covenants set out in the Third Schedule hereto

AND the Purchaser hereby covenants with the Vendor but by way of indemnity only hence forth to observe and perform the restrictive covenants specified or referred to in the charges register of the above mentioned title so far as they affect the land hereby transferred and to keep the Vendor and his estate and effects indemnified against all actions costs claims and demands in respect thereof

…

THE THIRD SCHEDULE above referred to

…

3. The land which formed title number HD11303 had been acquired by Mr Sawyer from a Mrs White and others by a transfer dated 25 May 1954 (“the 1954 transfer”). By that transfer:

“THE PURCHASER for himself and his successors in title (but not so as to bind himself personally after he shall have parted with all interest in the land hereby transferred) hereby covenants with the Vendor and his successors in title for the benefit of the Vendor’s adjoining and neighbouring land in Brookmans Park aforesaid and all and every part thereof (being the remainder of the land comprised in the above mentioned title) to observe and perform the restrictive covenants set out in the Third Schedule hereto

…

THE THIRD SCHEDULE above referred to

…

(3) Not more than fifty-two houses may be constructed on the said property…”

4. The application was made to this Tribunal on 3 March 2010 and the applicants hand delivered the approved publicity notice, a copy of the originating application and its attachments and Notice of Objection forms together with an accompanying letter to 75, 81, 83, 85, 89 and 91 Peplins Way on 4 May 2010. Copies of the publicity notice and letter were hand delivered to all the remaining properties in Peplins Way that it was considered could have the benefit of the restrictive covenant, and further copies of the relevant documentation were all deposited at 35 Bradmore Green, Brookmans Park, where it was available for inspection during normal business hours.

5. There were initially 48 objectors, 47 of whom were admitted, but two of those have since withdrawn. The 47 admitted objectors are listed on the attached Appendix 1.

6. Mr Andrew Bruce of counsel appeared for the applicants and called Mr Alan Perkins as a witness of fact, and Mr Ruaraidh Adams-Cairns BSc FRICS MCI Arb, a director of Savills L&P Ltd of London W1 who gave expert evidence. Mr Robert Andrew McIver BSc MRICS, one of the objectors, represented all of those whose objections were maintained, and produced a witness statement. A further six objectors gave evidence, and a number of others were in attendance but were not called. I carried out an accompanied inspection of the application land and surrounding area immediately after the hearing.

The application land and surroundings

7. Brookmans Park is a village lying about 20 miles north of London, between Potters Bar and Hatfield. Peplins Way is situated to the north-west of Brookmans Park and comprises a broadly U-shaped residential road with access at each end from Bradmore Way, and a spur off it giving on to a small square with central communal gardens. It is a typical 1950s suburban development of mainly semi-detached two-storey houses with attached garages and gardens to the front (many of which have been converted to parking areas), and enclosed private gardens to the rear. The houses are of brick construction, with colour-washed render to first floor elevations and several have been extended over the years to provide additional accommodation.

8. In addition to the residential properties, the Brookmans Park County Primary School, which has its principal frontage and access onto Bradmore Way, is located between the two entrances of Peplins Way, and has a pedestrian access to the rear, where it backs onto Peplins Way.

9. The application land is located in the north-west corner of the square and, being a corner plot, has a relatively narrow street frontage but broadens out substantially to the rear (which backs onto the main East Coast London to Edinburgh railway line) to give it the largest plot of all the Peplins Way properties (1,280 sq m). 87 Peplins Way is an unextended semi-detached 3 bedroom house that faces east/west and formerly had an attached garage that has been demolished since it was acquired by the applicants. The adjoining house, 85 Peplins Way (Mr & Mrs Fagan) is immediately to the south and also backs onto the railway line. 89 Peplins Way (Miss Benton) is adjacent to the north east and, again being in the corner of the square, has a larger than average, but smaller plot than no.87 – 1,002 sq m. That property backs onto Peplins Woods, an area of protected woodland to the north.

10. The applicants, who do not personally reside at 87 Peplins Way, propose to construct a detached two-storey 4 bedroom house with attached single garage on the wide area of the rear garden between nos. 87 and 89. It will have a cross-over drive shared with no. 87 and will have a total plot area of 862 sq m, no. 87 being left with a plot of 418 sq m.

11. The application land is one of the 52 plots originally developed by a Mr Sawyer on the part of Peplins Way that originally formed the land in title number HD 11303. Since they were built, one extra property, a detached house and garage, has been constructed on a plot of land (that was not a part of title no. HD 11303 and formerly belonged to the railway company) that lies between 63 and 65 Peplins Way, pursuant to planning consent obtained in 2006.

Preliminary Issue

12. Approximately one week before the commencement of the hearing, Mr Bruce submitted a skeleton argument to the Tribunal (which was copied to at least some of the objectors) in which he sought, as a preliminary issue, to argue that of the 47 admitted objectors, only 27 had the benefit of the restriction and that, importantly, neither of the two immediately adjacent properties, nos. 85 and 89, had the benefit. Further, any attempt that the objectors might make to assert that a scheme of development (building scheme) exists would be roundly refuted. I consider and determine these issues before turning to the grounds upon which the application was made, and the parties’ arguments on them.

13. It was submitted that, in respect of the 1955 transfer, under which this application had been made, the covenant was given by Mr Thorpe for himself and his successors in title. The applicants are his successors in title and are thus prima facie bound by it. The covenant was expressed to be for the benefit of Mr Sawyer’s adjoining and neighbouring land, being the remainder of that held under title HD 11303. As such, only land owned by Mr Sawyer at the date of the 1955 transfer to Mr Thorpe was capable of benefiting from the covenant. Any plots that had previously formed part of title HD 11303 but which had been sold by Mr Sawyer prior to 21 March 1955 do not, on the covenant’s proper construction, have the benefit. A schedule showing the dates of transfer of all the relevant properties was provided. Mr Bruce said that, as a broad guide, if the title number was less than 12873, the property would have been transferred and registered prior to 87 Peplins Way.

14. The only submission from the objectors (who were not legally represented) on this issue came from Mrs Fagan of 85 Peplins Way. She said that as the transfer of her property was dated the same day as that relating to the applicants’ property, she thought that even if the Tribunal accepted Mr Bruce’s arguments, the benefit must extend to hers. In response to a question from me, she confirmed that she was unable to provide evidence in respect of what time of day completion of her transfer took place, or whether that was before or after the applicants’ transfer.

15. Mr Bruce went on to submit that that the references in the application and the objections to “52 houses” derive from the restrictions entered into pursuant to the 1954 transfer. That was the transfer by which Mr Sawyer acquired from Mrs White and others the land registered under title HD 11303. It was pointed out that the covenants under that transfer were made for the benefit of the Vendor’s (Mrs White’s) adjoining and neighbouring land in Brookmans Park. It was not, therefore, made for the benefit of any of the land comprised within title HD 11303 as the whole of that land had been acquired by Mr Sawyer. None of the objectors claim to be successors in title to any of Mrs White’s land (which adjoined that purchased by Mr Sawyer), and as such none of them can rely on the covenants in the 1954 transfer and, in any event, it is not the 1954 covenants that are the subject of this application.

16. Turning to whether it might be argued that a scheme of development (commonly known as a building scheme) exists, Mr Bruce submitted that clearly it did not. A building scheme is a comprehensive system of covenants which the initial developer (in this case Mr Sawyer) might establish and which would have been designed to be enforceable by and against all the owners from time to time of land within Brookmans Park. Such a scheme would have been a way round the before and after [transfer date] problem referred to above. An example was given (as set out in Francis ‘Restrictive Covenants on Freehold Land’ (3^rd Ed) at 8.61 and at 8.62 it said:

“Schemes of development are designed to avoid these problems and difficulties of enforcement. Where a scheme exists, all owners of plots within the scheme can enforce and be enforced against, irrespective of the order in which the common vendor sold those plots and irrespective of the formalities regarding annexation and assignment of the benefit of covenants.”

17. However, Mr Bruce submitted, such schemes were rare. He referred to Elliston v Reacher [1908] 2 CH 374 where Parker J, at 384, identified four matters that were required to prove that a scheme was established:

“(1) Both the claimant and the defendant derive title from a common vendor.

(2) Prior to selling the land to which the claimant and the defendant are entitled, the common vendor laid out the estate for sale in lots, subject to restrictions intended to be imposed on all the lots. Those restrictions, although they may vary in details as to particular lots, are consistent and consistent only with a scheme of development.

(3) The restrictions are intended by the common vendor to be and are for the benefit of all the lots intended to be sold, whether or not they are also intended to be and are for the benefit of other land retained by the common vendor.

(4) Both the claimant and defendant (or their predecessors in title) purchased their lots from the common vendor on the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme; whether or not they were to enure for the benefit of other lands retained by the vendor.”

The objectors would need to, but cannot, prove (3) and (4) to establish a scheme here.

18. Mr Bruce also referred to Re Dolphin’s Conveyance [1970] Ch 654 where it was stated at 661:

“It is trite law that if you have conveyances of the several parts of an estate all containing the same or similar restrictive covenants with the vendor, that is not enough to impute an intention on the part of that vendor that the restrictions should be for the common benefit of the vendor and of the several purchasers inter se: for it is at least as likely that he imposed them for the benefit of himself and of the unsold part of the estate alone.”

Here, it was submitted that there is no evidence that Mr Sawyer imposed the restrictive covenant in the 1955 transfer for the common benefit of all the purchasers. There is no reference in the transfer to “The Brookmans Park Estate” or similar, no description anywhere of the extent of any such estate and no reference to other purchasers having rights against Mr Thorpe. There could therefore be no imputation that Mr Sawyer intended to create a scheme of development simply because the terms of the 1955 transfer are common to other transfers.

19. Buckley J said in Reid v Bickerstaff [1909] 2 Ch 305 at 323:

“There can be no building scheme unless … the nature and particulars of the scheme shall be sufficiently disclosed for the purchaser to have been informed that his restrictive covenants are imposed upon him for the benefit of other purchasers of plots within that defined estate with the reciprocal advantage that he shall as against such other purchaser be entitled to the benefit of such restrictive covenants as are in turn to be imposed upon them.”

Mr Bruce submitted that the proper analysis is that Mr Sawyer was restricted to building 52 houses on the land he had acquired under the 1954 transfer. In order to ensure that the he alone was able to build the 52 permitted houses, he placed a restriction on each plot to prevent the building of more than one dwelling. As appears from the terms of the 1955 transfer, Mr Sawyer had no intention of creating a building scheme and by the indemnity covenant he merely sought to ensure that once he had sold off all the land, he was personally protected against any claims under the 1954 transfer.

20. The burden of proof, Mr Bruce submitted, was on the objectors to prove that, for all 45 of those remaining to have the benefit of the restrictive covenant, a scheme of development must exist. It was the applicants’ case that they could not, for the legal reasoning he had set out, and thus only those who purchased their plots after the date of the 1955 transfer could claim the benefit. In particular, he said, only 5 of the properties “on the square” in the immediate vicinity of the application land have the benefit.

21. Mr McIver said that the same covenants were placed upon all the properties and in his view, therefore, the Peplins Way development should be taken as a building scheme. In any event, he said, that could apply to the whole of Brookmans Park. He said he had a copy of a leaflet dated 1926 promoting the development of Brookmans Park (as a village) to potential London commuters, and it could be argued that the whole area was a scheme of development.

Conclusions – preliminary issue

22. Relating to the dates of the various transfers, there can be no question, in my judgment, that Mr Bruce is correct, and any properties that were transferred prior to 21 March 1955 do not have the benefit unless a building scheme exists. There is, however, the interesting question of whether Mr & Mrs Fagan’s property, 85 Peplins Way, has the benefit because the transfer date is said to be the same. This could potentially be important as, being immediately adjacent to the property from which the application land is intended to be hived, some of the effects (along with those to no. 89) are likely to be the greatest. Although Mrs Fagan offered no evidence to prove conclusively that her transfer occurred after the Perkins’s, I note that the title number relating to the transfer of no.85 is HD 12884, which is sequentially after the title relating to the applicants’ property (HD 12873). Further, on the official Land Registry Schedule relating to title HD 11303 [applicants’ bundle p.46], the date of registration of the transfer of 85 Peplins Way is given as 14 May 1955, and registration of the applicants’ transfer was 13 May 1955. On the balance of probabilities, therefore, I am satisfied that the transfer of 85 Peplins Way was after that relating to the application land, and thus Mr & Mrs Fagan do have the benefit of the restriction - whether or not a building scheme (to which I now turn) exists.

23. In respect of the arguments relating to whether or not a scheme of development could be deemed to exist, it appears to have gone unnoticed that paragraph 13 of the Third Schedule to the 1954 transfer (applicants’ bundle p52) by which Mr Sawyer purchased the land comprising title no. HD 11303 says:

“13. In this Schedule where the context so admits the expression “the Purchaser” includes the persons deriving title under him and the expression “the Vendor” includes his successors in title the owners for the time being of the Brookmans Park Estate remaining unsold PROVIDED ALWAYS that there is reserved to the Vendors the right to release or vary any restrictions affecting any other parts of the Brookmans Park Estate and a provision that nothing therein contained shall impose any restriction on the manner in which the Vendors shall sell lease or otherwise deal with their remaining portions of the said Estate or be deemed to create a building scheme in relation thereto.” [my emphasis].

That restriction is also recited in title HD 12873 under which this application is made.

24. It is clear, therefore, that, on the sale of the land to the developer, Mr Sawyer, it was the specific intention that a building scheme should NOT be created. He was bound by that restriction, and if he had created a building scheme, he would have been in breach. The four matters to which Mr Bruce referred in Ellison do not therefore need to be considered in this instance, nor the reference to Re Dolphin’s Conveyance, Reid and Bickerstaff or any of the other cases to which he referred. However, if it had not been for paragraph 13 referred to above, I would nevertheless have been persuaded by Mr Bruce’s submissions, and with no opposing arguments from the objectors I conclude that a building scheme did not, and does not, exist.

25. The 28 objectors who I have thus determined are entitled to the benefit of the restriction are set out in Appendix 2 attached.

Applicants’ case

26. The application was made under grounds 84(1)(aa) and (c) which provides:

“84-(1) The Lands Tribunal shall (without prejudice to any concurrent jurisdiction of the court) have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied -

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

Subsection (1A) provides:

“(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of the 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 ad-vantage 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”.

27. Mr Perkins said that he and his wife bought the application land in July 2007 having identified it as having potential for development “in accordance with local and national housing and planning policies.” Planning permission was obtained on 17 December 2009 for a new detached house that would contain 4 bedrooms, 3 reception rooms, and an attached single garage together with off-road parking for at least 8 cars. In Mr Perkins’ view the house would be entirely in keeping with those around it and, with it having a larger than average (for Peplins Way) plot at 862 sq m, there would be ample room for contractors’ vehicles to be housed on site during the construction process and for heavy goods delivery vehicles to enter, make their deliveries and turn on the site to leave in a forwards direction rather than needing to use the roadway. Indeed, he said, the only really large vehicle that was likely to need site access once the shell of the property was up, would be for the delivery of the pre-formed roof trusses if they were not to be individually constructed on site.

28. As to what no. 87 would be left with, Mr Perkins said that the fence that had already been constructed between 87 and the proposed new plot was to be re-aligned next to the existing house to allow parking for an additional vehicle (to make a total of 3 on top of the two that were formed within the front garden) and the erection, if required, of a garage. No. 87 would still have a plot size of 418 sq m which would be larger than the average for the estate which was 360 sq m, and consistent with nos. 89, 99 and 101.

29. In terms of what effect the proposed development might have on what would be the three nearest properties, nos. 85, 87 and 89 Peplins Way, Mr Perkins said firstly that, of course, no. 87 was not an objector, but in his report to committee for its meeting on 26 November 2009 the planning officer had discussed the potential affect, had concluded that although there would be some loss of privacy for no. 87, the proposed development “will not have a significant impact on the residential amenity of nos. 85 and 89”. However, a planning condition to ensure that obscured glass was used in the first floor front facing landing and bathroom windows would be reasonable.

30. As to the objectors concerns over access, traffic generation, the adequacy or otherwise of on-site parking , overdevelopment (site dimensions), or impact on other properties, Mr Perkins quoted from the planning officer’s conclusions which read:

“9.1 The proposed development is considered to be an acceptable form of development which would not harm the existing character and context of the area. The plot size is not dissimilar to others in the area and the development would not result in a cramped site which appears overdeveloped. The design of the proposed materials and design of the dwelling would also draw from the character of the dwellings in Peplins Way.

9.2 No objections have been raised by Highways in regards to the use of the shared cross-over onto Peplins Way and so the proposed access arrangements are considered to be acceptable. The proposed development would meet the council’s requirements for parking.

9.3 It is considered that there would be no detrimental impact to the amenity of the neighbouring properties.

9.4 Although this site is impacted by the close proximity from the adjoining railway line, the applicant has adequately demonstrated the dwelling has been designed to overcome this issue and no objections have been raised by the Council’s Environmental Health Department.”

Mr Perkins said that not only would there be no detriment to the neighbouring properties, but the new house would, if anything, act as a sound barrier, thus reducing the affect of railway noise on no. 89 and would enhance the value of that property. He referred to the report from Premier Measurements, Consulting Acoustic Engineers, which graphically demonstrated the sound deadening effects that the construction of the new property would have on both nos. 85 and 89 (and, by implication, no. 87).

31. Regarding traffic, he produced a report that he had commissioned from Savell Bird & Axon, Transport Planning Specialists, as part of the planning application process. That had concluded that the TRICS database used by Hertfordshire County Council relevant to privately owned houses indicated an average trip rate of 6.5 vehicle movements per day which would not give rise to any measurable impact on neighbouring occupiers. The concerns that had been expressed by many of the objectors over the additional traffic that would be generated, particularly as Peplins Way was already seriously affected by the “school run” in mornings and afternoons, were, Mr Perkins said, unfounded. The proposed property was in the far corner of the square which was off the “informal” one way route around the main part of Peplins Way that was used for dropping off and collecting children from the school.

32. Looking specifically at the two properties (other than no. 87) that could conceivably be affected by the proposed development, Mr Perkins said that the rear of no. 85 (the Fagans’ house) had an easterly aspect to the rear towards the railway line, and was separated from the proposed plot by no. 87. There were mature trees and bushes along the boundary with no. 87, so the new property would not be noticeably visible from the ground floor rooms or the garden. At first floor there is one bedroom window looking towards the rear (the other being a bathroom). He produced a plan that indicated that, at a 45 degree angle of sight (the measure he thought commonly used by planning authorities in determining affect upon amenity) it would just be possible to see the south eastern corner of the new house – which would be some 30 metres away. For the current view of Peplins Woods, the angle was between 57 and 67 degrees which could only be described as peripheral. In his view therefore, there would be no measurable loss of amenity and, as he had said, there would be some shielding from the noise of the trains. It should also be noted, he said, that it appeared this property did not have the benefit of the covenant.

33. Mr Perkins said that, as far as no. 89 (Ms Benton’s property) was concerned, that is at a 90 degree angle to no. 87 and the principal rear rooms have northerly views towards Peplins Wood. There are also mature trees and bushes along the existing boundary with no. 87 (which would become the north-western boundary of the new plot) which would shield any impact on views from the rear garden or the side of the house – where there were no windows serving habitable rooms. The only windows from which the new house could be seen were the landing/staircase window, and the half-glazed side door from the kitchen. The new house would be 25 metres away from no. 89 at its closest point and again, he said, he thought there would be no detrimental affects.

34. There had been concerns expressed about the affect that the additional dwelling could have on the sewerage system. Mr Perkins said that he had checked the drain and it appeared to be of adequate capacity and in good condition. In fact, the proposed plot was the last on the run where it serves the estate, before joining with the main sewer by or beyond the railway line. In any event, he said, the water authority had been consulted about the planning application, and had expressed no concerns. Regarding the comments made by a number of the objectors about “garden grabbing”, and the coalition government’s stance on this issue, Mr Perkins said that through his profession as a chartered surveyor, he was regularly involved in planning matters, and the policy to which they were referring: PPS 3. This was national policy guidance that set out a sequential test and that despite that test seeking a maximum of 30 dwellings per hectare (dph), it was Welwyn Hatfield’s policy to adopt a maximum of 50 dph. It should also be noted that the whole of the area was in the Green Belt, and Welwyn were therefore constrained to permit development only within strong and robust policies.

35. In summary, Mr Perkins said that he thought the proposals were reasonable, there would be no loss of amenity, or value, to any of the objectors’ properties and that no injury would be caused. In his view, therefore, the grounds had been made out and the modification should be allowed.

36. In response to questions about parking posed by Mr McIver for the objectors, he said the amount of on-site parking available to the proposed house far exceeded the planning authority’s requirements, and with the driveway being 3.2 metres wide, there would be sufficient room for vehicles to pass each other without getting blocked in. He was adamant that objectors’ fears about contractors’ vehicles blocking the road and damaging verges during the construction period were unfounded.

37. Mr Adams-Cairns is head of Litigation support for Savills L&P, and has 30 years valuation experience since qualifying as a chartered surveyor. He is a founding member of the Expert Witness Institute and specialises in expert witness work. He said that he had been instructed to give his independent professional opinion as to diminution in value (if any) that might occur to any of the properties that have the benefit of the restrictive covenant if the modification were to be allowed, and the new house was to be built. Having described the application land, its location and surroundings, and set out details of the planning consent that the applicants have obtained, he concluded that (excluding the applicants’ own property at no. 87), the only houses that could conceivably claim diminution in value were nos. 85 and 89 Peplins Way.

38. There was no doubt that the new dwelling would be visible, obliquely, from the rear bedroom of no.85, but this would be at some distance from the property and in Mr Adams-Cairns’ opinion this would be of little if any consequence. Similarly, there would be direct views from the kitchen doorway and the landing/staircase windows of no. 89 into the new plot and towards the house, but again, he said that with the new house being 25 metres away from no. 89, this was a significant distance in the context of residential development. The upstairs windows to the (south facing) front of the new house will overlook, to a limited extent, part of the rear garden of no. 85 but again, this intrusion, he said, needs to be kept in context in terms of the significant distance between the properties and the fact that trees and bushes along the boundary between nos. 85 and 87 will provide some screening. The planning condition in terms of obscured glass also needed to be taken into account. None of the first floor windows of the new house will look directly onto no. 89, but there may be some visual intrusion into the rear garden in that it will be overlooked by the window of bedroom 3. However, use of the bedrooms and gardens, he said, were unlikely to coincide under normal circumstances. Again there are mature trees and bushes that would lessen any impact. In Mr Adams-Cairns’ view, any limited visual intrusion to either of these properties would be more than outweighed by the sound deadening effects from the railway (the line being some 2.5 metres above the properties’ level) that the construction of the new house would provide. The report from Premier Measurements shows this to be the case. The new house would also make the trains less visible especially in the winter when the trees are defoliated.

39. The new access drive would be immediately adjacent to the boundary of no. 89, but as was confirmed in the traffic report that had been commissioned by the applicants, any affect would, he thought, be extremely minimal. Mr Adams-Cairns concluded that the benefits of the shielding effect of the new house more than outweighed any minor negative effect that the visual intrusion might have. He also referred to the offer that the applicants had made to the owner of no.89 to acquire from her a small portion of her rear garden (to slightly extend the available garden area to the new house) in the sum of £10,000. Although Ms Benton had chosen to ignore this offer, which was in his view about £9,000 more than the land was worth, this underlying value to the neighbour (known as a special purchaser) runs with the land and thus further outweighs any negative impact that the new house might be deemed to have.

40. As to disturbance during construction works, Mr Adams-Cairns thought there would be nothing significant in terms of no. 85, but as far as no. 89 was concerned the would, for a period of up to 12 months, be noise dust and disturbance. He said that in his professional opinion, this might diminish the open market rental value of the property by about 15% for that length of time, say £2,000 but this was a de-minimis amount that was, again, outweighed by the value benefits of the development.

41. Mr Adams-Cairns said that, in terms of the written statements of the objectors from nos. 85 and 89, firstly he did not agree with Mrs Fagan that compensation in the region of £3,000 to £5,000 should be paid in respect of her property. As to Ms Benton’s view that her house would be devalued and the development would also set a precedent for other garden-grabbing in the area, he said his evidence showed there was no diminution in value and the layout of the estate was such that there was little if any further opportunity for residential development. Regarding all the other objectors, he said that in his opinion they were all too remote for the values of their properties to be affected in any material way.

42. Mr Bruce submitted that many of the objectors had expressed concerns about the disturbance that would be caused during construction works, but in the light of Shepherd v Turner [2006] 2 P & CR 28, in the absence of special facts the Tribunal should ignore that aspect. Carnwath LJ said, at 58:

“In my view, account must be taken of the policy behind para (aa) in the amended statute. The general purpose is to facilitate the development and use of the land in the public interest, having regard to the development plan and the pattern of permissions in the area. The section seeks to provide a fair balance between the needs of redevelopment in the area, public and private, and the protection of private contractual rights. ‘Reasonable user’ in this context seems to me to refer naturally to a long term use of land, rather than the process of transition to such use. The primary consideration, therefore, is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which is inherent in any short term construction project. There may, however, be something in the form of the particular covenant, or in the facts of the particular case, which justifies giving special weight to this factor.”

43. The usual approach to applications based upon section 84(1)(aa), Mr Bruce said, was to consider the 7 questions referred to in Re Bass’s Application (1973) 26 P & CR 156:

1. Is the proposed user reasonable?

2. Do the covenants impede that user?

3. Does impeding the proposed use secure to the objectors practical benefits?

4. If so, are those benefits of substantial value or advantage?

5. Is impeding the proposed user contrary to the public interest?

6. If the answer to (4) is no, would money be adequate compensation?

7. If the answer to (5) is yes, would money be adequate compensation.

There could be no doubt that the proposed use, as a residential dwelling house, is reasonable. Although it was acknowledged that the application is for the removal of a legal right and is governed by an entirely different jurisdiction to that under which planning applications are determined, it was stated in Re Bass that “planning permissions are very persuasive in this connection.” It was submitted that the opinions of the local authority’s planning director, in recommending the grant of planning permission, should persuade the Tribunal that the objectors’ suggestions that the proposed user was unreasonable could not be substantiated. Further, the references to the recent planning policy changes set out in PPS 3 and “garden-grabbing” were misconceived. There was no evidence that the approved development does not continue to comply both with PPS 3 and with all the other local planning policies.

44. It was accepted that the covenant does impede the proposed user, and that in doing so it arguably secures some practical benefit to the objectors in that it preserves a level of peace and quiet and restricts the growth of traffic by preventing an additional family moving into (the covenanted) part of Peplins Way. However, Mr Bruce said that if, as was argued, neither nos. 85 or 89 have the benefit of the restriction, it was not accepted that impeding the development prevents the gardens of other properties that do have the benefit being overlooked. It was only those two properties that might conceivably suffer. Also, preventing the construction of the proposed new driveway does not create a practical benefit to anyone, even the adjacent no. 89 which is not benefited.

45. It was argued that any benefits that were preserved were not of substantial value or advantage. Substantial means ‘considerable’ or ‘big’ and, as Mr Adams-Cairns had said, not only was there no diminution in value to any of the benefited properties, but, if anything no. 89 (which was not benefited anyway) might indeed be increased in value. There would be no significant impact upon the character of the area, the new house would be in keeping with the locality and its garden, and the reduced garden of no. 87, would still be in line with average plot dimensions on Peplins Way. All the evidence that had been produced by the applicants indicated that there none of the benefits secured by the covenant are of substantial value or advantage, and for these reasons, monetary compensation would be an adequate remedy. However, as Mr Adams-Cairns had shown, none of the properties, whether benefited or not, would suffer any diminution of value. It was accepted that impeding the proposed user is not contrary to the public interest, and in that regard question (7) in Re Bass does not apply..

46. Mr Bruce submitted that, in the alternative, the applicants rely on section 84(1)(c) which requires them to establish that “the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction.” All of the evidence relating to ground (aa) proved conclusively that no injury would be caused.

Objectors’ case

47. Of the 47 objectors whose notices of intention to object were admitted, all but 14 provided written representations or reasons. Many of the submissions were in similar format and raised the same issues. It would be apposite, in my view, to summarise the principal points of concern and then to consider the particular points raised by those who appeared.

48. There was general concern about an increase in density (Julier and others), overdevelopment (Hibberd), the effect upon the aesthetic quality of the existing development (Cooke), ambience (Julier), the need for protection of amenity and value (Ball) and to preserve the style and character of the area (Clifton-Everest). The roads were very narrow (Williams/Kenneally and Bennett) and there were already considerable problems during the school run with additional traffic and general parking chaos at those times (Partington and others). This would be exacerbated by the creation of an additional family house, and there could be increased problems over access for emergency vehicles (Rubra and others). Mr Jacobs said that the photographs presented with Mr Perkins’ witness statement showing no traffic and very few parked vehicles were extremely misleading and unrepresentative.

49. Modification of the restriction would create a precedent (thin end of the wedge) and would open the door to further applications (virtually all objectors). The applicants already owned land to the rear of no. 46 but so far had failed to obtain planning consent. If and when they do, allowing this modification would make it difficult to resist the application that the Perkins would be required to make (McIver and others). Mr Pavlou was particularly concerned about this aspect as he lived next door at no. 48. There were also opportunities for infill plots between nos. 99/101 and at no. 111 (Mc Iver), and the potential for garden-grabbing was a general concern (Boscott and many others).

50. The proposed development on the application land would be visually intrusive (Sherlock) and there was concern over whether the infrastructure (drainage) could cope (Jacobs). Mrs Cottle (no. 83) said that the proposed property did not follow the building line, and its positioning would overlook her back garden along with those to nos. 87, 85 and 81. Mr & Mrs Bennett referred to Re Snaith and Dolding’s Application (1995) 71 P & CR 104 where it was held that the opening of a breach in a carefully maintained and successful scheme of development could deprive the other house owners of a substantial practical benefit, namely the assurance of the integrity of the building scheme [although in this case, as has been determined, there is not a building scheme].

51. Many of the objectors were particularly concerned about the disturbance and noise that would occur whilst the property was being built, and access for large vehicles would be difficult, if not impossible bearing in mind the number of cars that were usually parked in the street. Although most of the houses had on-site parking for owners’ own vehicles, in addition to the school run problems, Peplins Way was regularly used for parking by commuters using the nearby Brookmans Park station. Ms Templey said that any reliance that the applicants may place on the fact that one new property had already been built between nos. 63 and 65 should be ignored as that was built on a vacant plot, conforms with the building line, and was not subject to the restriction that applies to the objectors’ properties. The history there, she said, was entirely different.

52. Mr McIver, who appeared, confirmed that he had been asked to speak on behalf of all the objectors, and said in his witness statement that none of the grounds under which the application had been made were made out in this case. He said that the applicants have relied heavily upon the opinions of the planning officer, and they are not relevant to the restriction. The said modification would clearly be contrary to the public interest in that it could well lead to the devaluation of a number, if not all, the affected properties. The covenant, he said, is in place for the benefit of all the original 52 properties that enjoy its benefit, and is an effective tool for protecting the amenity and character of the estate. The existence of the covenant adds value to the objectors’ properties and provides them with reassurance against future development. Any modification would adversely affect beneficiaries’ quality of life.

53. He said that the application was also made under ground (c), and there was no question that all of the benefited properties would be injured, especially those immediately adjacent, and would be entitled to compensation if the modification was allowed. Mr McIver then set out in some detail the concerns that had been expressed by the objectors (and summarised above) and concluded that the case had been made out to prevent the modification from being granted.

54. In cross-examination, he said he accepted Mr Adams-Cairns’ professional opinion that the restriction does not add monetary value to the benefited properties. Asked about the concerns over increased density, he said that the original developer would have erected another house on the application land if he had thought it possible to do so. As to the thin end of the wedge argument, he said that there was an opportunity to put another property in the corner between nos. 99 and 101, but accepted that those properties had been substantially extended, and that without demolishing those extensions, it would be impossible to gain access, and that the plots of those two houses were very much smaller.

55. Mr Gubbins of no. 91, who was called, had said that the proposed backland development would stand out like a sore thumb. The restriction was, he said, now more relevant than ever to prevent overdevelopment. He also referred to concerns about precedent, garden-grabbing, additional traffic and potential parking problems at no. 87 by having to share a “cross-over” drive with the new property (although accepted that did not affect his property). Additional parking in the street was also likely despite what the applicants had said about extensive on-site parking at the proposed new house, and that, as it was, refuse lorries already have considerable difficulty negotiating their way past parked cars along the narrow street.

56. Mr Gubbins said that he and his wife had owned their property since new in 1955, and enjoyed the open aspect over the green to the front, over farmland and towards Peplins Wood to the rear. They had been made aware of the restriction when they purchased the house, their solicitor stressing that it would help to maintain the value of the property by preventing additional development. However, he acknowledged in cross-examination that it was not the restriction in his own transfer that was in question, but that which related to no. 87, and that his solicitor had not said that his neighbours could also not build extra properties on their land. Mr Gubbins said that he thought he would be able to see the new house from one of his rear bedroom windows, but accepted that there were many trees and shrubs between his house and the application land. However, he said he could see the trains on the line behind the application site in the winter time.

57. Mr Cooke of no. 38 Peplins Way was called. He said that the fact that 95% of those who were originally considered to have the right to object had done so showed the strength of feeling in the area. He had always been of the view the covenant extended to all 52 properties. He said that his house was directly opposite the new one that had been built at 63a, and whilst it was accepted that that was built on an infill plot, on land that did not form part of the original land sale to Mr Sawyer, he said it had created additional parking problems. These would be further exacerbated by the applicants’ proposals.

58. Mr Lowden of no. 83 was called. He said that his particular concerns were over parking in what is an extremely narrow road. This was not just during the school run, but with commuter parking as well, the problems occurred throughout the day. Any potential for additional traffic and, possibly, on street parking (by visitors) was therefore to be avoided. Access to the site for contractors’ vehicles would be extremely difficult. In answer to a question from Mr Bruce, Mr Lowden said that although he could not see Peplins Wood from his house, he would be able to see the new house from his kitchen and bathroom.

59. Mrs Fagan (no. 85) was called, and said that she had already suffered some disturbance when the applicants’ garage at no. 87 was demolished. The contractors had encroached upon her land, and she said she had obtained an apology from them. The situation, it was anticipated, would be very much worse when the new house was being built. She was also concerned that the current outlook that her family enjoyed from the back bedroom and particularly the rear garden to the side towards Peplins Wood would be completely obliterated. Also, one of the bedrooms of the new house would directly overlook their garden. She did not accept the argument that was put to her that the fact that the house would be 30 metres from her boundary would diminish the problem. She said it would be nearer than the wood that was clearly visible and a very pleasant outlook, and disagreed with the planning officer’s comment about separation distances.

60. Ms Benton (no. 89) appeared and, in response to Mr Adams-Cairns suggestion that the new house would shield noise from the passing trains, said that she had lived there for 56 years, and did not notice them. She said she would clearly be able to see the new house from her kitchen door, and from the landing/staircase window. She also said that she had been harassed by the applicants in respect of their offer to replace part of her fence, and to purchase a proportion of her land. She said she had not responded as, to do so, might imply that she acquiesced with the proposals, which she did not.

61. Dr Julier, who had bought no. 54 in 2010 appeared and re-iterated her concerns that a precedent would be set.

Conclusions

62. In terms of the siting of the proposed new dwelling, and the question of effects upon visual amenity and overlooking, the issues in this case bear remarkable similarities to those that were considered by me in Re GR & AL Developments Ltd’s Application [2009] UKUT 238 (LC) (LC ref: LP/36/2008), although in that instance there was a building scheme in existence. In that case the applicant wished to erect two additional houses, but the concerns relating to overlooking and visual intrusion only manifested themselves in respect of the proposed siting of one of them. The decision to refuse the application turned on the issue of overlooking and what was deemed to be a considerable invasion of privacy. In respect of all the other arguments that had been advanced, I concluded that the proposals would have no material effect. The same, to some extent, goes for this application. It is the question of visual intrusion and loss of privacy that appear to me to be powerful objections, although, as will be seen, I have even greater concerns regarding the difficulties that will undoubtedly occur during the construction period.

63. Following the sequence of questions in Re Bass, despite the well marshalled arguments of the objectors (those of whose representations I can take into account in the light of my earlier conclusions), I am satisfied that the proposed development is a reasonable use of the application land, being a new residential unit in an already developed residential area, and the fact that planning permission has been obtained is persuasive in that regard. The existence of the covenant clearly impedes that user.

64. Turning to the practical benefits, in considering firstly the concerns about increased density and overdevelopment, I take into account the fact that the application land has, by some margin, the largest plot of any of the 52 originally developed by Mr Sawyer on Peplins Way, and accept the applicants’ arguments that, if and when the new house is built, neither it nor no. 87’s remaining plot will be out of line with average plot sizes as they currently exist. As to fears that the floodgates will be opened for further development in the vicinity, I think the objectors’ need not be too worried. Whilst it is correct that if the applicants’ do eventually succeed in obtaining planning permission for a unit on the land behind no. 46 that they also own, an application to this Tribunal may have to be made (dependent, of course upon the particular circumstances that apply there, and about which I heard no evidence), it seems to me that that is the only other plot that might realistically hold potential for additional development. Although it is arguable that it may just be physically possible to squeeze one additional plot in behind no. 101, the fact that substantial extensions have been constructed to the side of both nos. 101 and 99 means access would be impossible without removing them. The need to do that would bring into serious question the economic viability of such a proposal. I do not think that there is any opportunity for a unit to be built behind no. 111 unless a portion of the rear garden of no. 109 is also included. Regarding the one other new property that has been built, at no. 63a, it is accepted that the circumstances there were very different, in that the land upon which it was built (and which did not form part of the original title HD 11303), was a vacant plot with direct road frontage.

65. I also do not think that, by the provision of one additional residential unit, there will be any detrimental affect upon the aesthetic quality, ambience or amenity of the area in general or that the overall style and character will be adversely affected. Once constructed, I am satisfied that the limited amount of additional vehicular traffic that will be created by the occupation of the new house will not cause any material increase in the difficulties that the residents currently experience, and accept the applicants’ evidence in this regard. No highways concerns were expressed in the planning officer’s report to committee, and in my view another 6.5 vehicle movements per day would be likely to pass unnoticed by all but, perhaps, Ms Benton who, as it transpires, does not have the benefit of the restriction.

66. Considerable apprehension was expressed by Mr Rubra (no. 81), Mr Lowdon & Mrs Cottle (no. 83) and Mr & Mrs Fagan (no. 85) regarding potential visual intrusion and overlooking from the new property as it will directly face their rear gardens. Mrs Fagan said that she thought her property might be devalued by £3,000 to £5,000, but Mr Adams-Cairns did not agree. The applicants argued that there was only one first floor window in the proposed house (bedroom 4) that would overlook those gardens, the other two being bathroom and landing windows which would both have obscured glazing; that they were far enough away to be of little concern, and, in any event, occupation or use of bedrooms would not normally coincide with garden use. They also said that the location of the new house would be at an extremely obscure angle from Mrs Fagan’s 1^st floor rear bedroom window. Whilst I agree with that latter point, and one does need to be very close to the window to be able to currently see Peplins Woods (at an angle of 57 to 67 degrees according to Mr Perkins’s plan), the new house will be very much closer. Mr Perkins said that, at 30 metres away from no. 85, that was a significant distance. I do not concur. That is, in my view, close enough to give the impression of being somewhat overpowering, even with the garden of no. 87 in between. It would, as Mr Sherlock said, be visually intrusive. I also do not agree that the owners of the three affected properties should not be concerned that it is a bedroom that overlooks their gardens. First floor bedrooms are frequently used for other purposes, for instance as a study or an office, and the argument, therefore, that use of them is not likely to coincide with use of gardens is subjective and, in my judgment, misses the point. It is acknowledged that there are mature trees and shrubs along part of the boundary between nos. 85 and 87, but in the wintertime, the whole area will appear much more open.

67. Whilst it is, of course, the case that the occupiers of nos. 81 to 85 (and 87) are, and always have been, able to see into each others’ gardens from first floor windows, it is the overall presence of this quite large and imposing new house, facing directly along those gardens, that leads me to conclude that impeding that use secures to those objectors distinct practical benefits. I do not accept Mr Adams-Cairns’s opinion that it would only be no. 85 that might conceivably be affected, although the affects upon that one are clearly the worst. There were also arguments that the occupation of a new property would create additional noise, although bearing in mind the close proximity of the extremely busy and very noisy main railway line, I would not think that would realistically be a matter of any import.

68. I conclude, therefore, that question (3) in Re Bass is answered in the affirmative as far as nos. 81, 83 and, particularly, 85 are concerned, in that the ability to impede the proposed use secures to them practical benefits. The next question is whether those benefits are of substantial value or advantage. Although the impact of the new property reduces the further away an objector’s property is, I believe that certainly as far as no. 85 is concerned, the ability to impede the overbearing influence of the new house, and the overlooking that will occur especially into the rear garden, is a substantial advantage.

69. I turn now to the argument, expressed by the majority of the objectors, regarding the impact during the construction period. Delivery vehicles and contractors’ traffic will, in my view, create major problems and are likely to cause damage to roadways, verges and the square. There is also the potential for considerable acrimony between the developer and residents, especially those that live nearest to the entrance of the site., and there will be a resultant temporary loss of amenity Mr Perkins was adamant that large vehicles (which I take to be brick lorries, concrete mixers, deliveries of timber, plasterboard and other materials) will be able to drive directly onto the site, turn around and leave in a forwards direction without difficulty before the house was actually erected. Contractors and workmen’s own vehicles could also park on the site. He said that the only potential difficulty he foresaw was delivery of pre-formed roof trusses once the shell of the house had been built (if indeed it was decided to use pre-formed materials). The objectors pointed out just how narrow the roads are, and the fact that cars park half on and half off the pavement especially during the school run. I agree that the photographs produced by the applicants were not representative, and certainly when I carried out the site inspection, there were a large number of cars dotted all along Peplins Way, and there were some around the square. The photographs (including some from Google Streetview) produced by some of the objectors, showing cars parked all along Peplins Way and around the square, appear to me to confirm that their concerns are far from unfounded.

70. The main problem, it seems to me, is just how narrow the road is, especially around the square and, even more importantly in terms of large delivery lorries, the very sharp (90 degree) corners on each side of the square. Large vehicles approaching the site from the main part of Peplins Way will have to negotiate their way around two sides of the square, for a distance of approximately 80 metres, along a roadway which narrows in places to between four and five metres. There is the potential for damage to be occasioned to parked cars, verges and planting on the square. It will not be possible, I think, for large vehicles to pass parked cars on the square without encroaching onto the central part of the square itself, where there is no pavement around three sides, and the ornamental bushes and shrubs are located right up to the road edge. Even with the best will in the world, however carefully the site foreman or manager tries to control contractors and visitors, there is in my judgment the potential for utter chaos to reign over a period of many months. I do not accept the argument that large vehicles will be able to turn on the site (especially if there are contractors’ vehicles already there) and it will be necessary for them to carry out a reversing manoeuvre from the point in the corner of the square where there is a 90 degree turn. If there were to be a second vehicle parked on the front forecourt of no.87, that would also have to be moved. Furthermore, I do not accept as realistic the statement that contractors and workmen’s vehicles will all be able to park on site.

71. Mr Bruce urged me to take into account the judgment of Carnwath LJ in Shepherd v Turner, and that, in the absence of special facts, I should ignore problems during the construction period. In my view, the facts of this case are exceptional in terms of potential disturbance, and do justify giving special weight to this factor. Whilst the primary consideration is clearly the value of the covenant in providing protection from the effects of the ultimate use, the impact of the short-term disturbance in this case is, I conclude, material. Weighed alongside the impact that I have described above upon no. 85 in particular, and nos. 83 and 81 to a lessening degree, I am satisfied that the benefits preserved by the covenant are of substantial value or advantage, and money will not be adequate compensation either for no. 85, or for any of the other properties benefited by the restriction.

72. The application fails, therefore, under ground (aa). The applicants’ case was also predicated under ground (c), but for the reasons I have given above, I am satisfied that modification so as to permit the construction of an additional dwelling house on the application land would injure all of those who had the benefit, especially those whose houses are around the square (nos 81, 83, 85, 91, 107 and 109).

73. This determines the substantive issues in this application, and the decision will become final when the question of costs is decided. The parties are now invited to make costs submissions in writing.

DATED 16 June 2011

P R Francis FRICS

LP/11/2010

APPENDIX 1

Admitted objectors

1. 36 Peplins Way

2. 38 Peplins Way

3. 40 Peplins Way

4. 42 Peplins Way

5. 44 Peplins Way

6. 46 Peplins Way

7. 48 Peplins Way

8. 50 Peplins Way

9. 52 Peplins Way

10. 54 Peplins Way

11. 56 Peplins Way

12. 58 Peplins Way

13. 60 Peplins Way

14. 61 Peplins Way

15. 62 Peplins Way

16. 63 Peplins Way

17. 64 Peplins Way

18. 65 Peplins Way

19. 67 Peplins Way

20. 69 Peplins Way

21. 71 Peplins Way

22. 73 Peplins Way

23. 75 Peplins Way

24. 77 Peplins Way

25. 79 Peplins Way

26. 81 Peplins Way

27. 83 Peplins Way

28. 85 Peplins Way

29. 89 Peplins Way

30. 91 Peplins Way

31. 93 Peplins Way

32. 95 Peplins Way

33. 97 Peplins Way

34. 99 Peplins Way

35. 101 Peplins Way

36. 103 Peplins Way

37. 105 Peplins Way

38. 107 Peplins Way

39. 109 Peplins Way

40. 111 Peplins Way

41. 113 Peplins Way

42. 115 Peplins Way

43. 117 Peplins Way

44. 121 Peplins Way

45. 123 Peplins Way

46. 125 Peplins Way

47. 127 Peplins Way