Marcello Developments Ltd, Re [2001] EWLands LP_31

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[2001] EWLands LP_31_2000 (30 March 2001)

LP/18/1999

LP/31/2000

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – restrictions in 7 conveyances including restrictions of frontage, building line and use – site developed with flats in breach of restriction - discharge and modification sought to enable redevelopment with flats and houses – effect of High Court declaration on enforceability – grounds (a), (aa), (b) and (c) – discharge and modification – sums of £2,500 to be paid to owners of each of 8 houses with benefit of restrictions

IN THE MATTER of an APPLICATION under SECTION 84 of the

LAW OF PROPERTY ACT 1925

by

MARCELLO DEVELOPMENTS LIMITED

Re: Land at Surrey Court

Broughton Avenue

Finchley

London N3

Before: The President

Sitting at 48/49 Chancery Lane, London WC2A 1JR

on 12, 13 and 14 March 2001

The following cases are referred to in this decision:

Western v MacDermott (1866) LR 2 Ch App 72

Re Diggens (Lands Tribunal, LP/27/1999, 20 November 2000),

Re Peacock (Lands Tribunal, LP/37/1999, 8 May 2000)

Re Martin's Application (1988) 57 P & CR 119

Re Mezmetals Ltd (Lands Tribunal, LP/66/1987, 31 July 1989)

Re Tarhale Ltd (Lands Tribunal, LP/40/1989, 4 May 1990),

Re Fletcher Sheltered Homes Ltd (Lands Tribunal, LP/56/1987)

Re Williams' Application (1987) 55 P & CR 400

McMorris v Brown [1999] 1 AC 142

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

Gilbert v Spoor [1983] Ch 27

Lord Manners v Johnson (1875) 1 Ch D 673

Kemp v Sober (1851) 1 Sim NS 517

Daniells v Medonca (1999) 78 P & CR 401

Chatsworth Estate Co v Fewell [1931] 1 Ch 224

Re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261

Luton Trade Unionist Club and Institute Ltd's Application (1969) 20 P & CR 1131

In re Beechwood Homes Ltd's Application [1994] 28 EG 178

Re Ellis and Ruislip-Northwood Urban District Council [1920] 1 KB 343

Caroline Shea instructed by Max Bitel, Greene for the applicant.

Matthew Brunning instructed by the solicitor to Barnet London Borough Council for the objecting council.

Mr J M Fassbender for himself and with the permission of the Tribunal for the following other objectors:

Mrs Zelda Fassbender;

Mrs Michelle Queenie Kauffman;

Miss Razia Currimbhoy;

Ms Salimah Currimbhoy;

Mr Zafar Currimbhoy;

Mrs Carole Harding;

Mrs Hifnun Nahar Islam;

Mr Raymond Beckman;

Mrs Carole Beckman;

Mrs Alison Jodieri; and

Mr Sadegh Jodieri.

DECISION

Introduction

In these consolidated applications the applicants seek the discharge or modification of a number of restrictive covenants on land that they wish to develop at Surrey Court, Broughton Avenue, Finchley, N3. The site, which is 1.4 acres (0.57 hectares) in area, at present contains a 2-storey block of 16 flats. Planning permission was granted by the local planning authority on 10 June 1998 for a redevelopment comprising seven detached houses with garages, one 3-storey block of 5 flats and one 3-storey block of 10 flats incorporating basement parking for 21 cars, and a surface car park.

The site is subject to a number of restrictive covenants that would, or are said to, inhibit the development that has been permitted. These are contained in some 7 conveyances and affect different parts of the site. The applications to discharge or modify these covenants gave rise to a substantial number of objections, but the majority of these have been withdrawn. Objections are sustained by the owners of 8 houses in Broughton Avenue near to the application land and by Barnet London Borough Council, which owns an adjacent area of open space. The objections relate to covenants contained in a single conveyance affecting the largest, central, part of the site, referred to as the land edged red. The restrictions in this conveyance (dated 3 March 1925 and referred to as conveyance "H") are as follows:

"… Any houses to be erected on the land should front towards Broughton Avenue and the Purchaser should not without the consent of the Company erect any building on any part of the land nearer to Broughton Avenue than 20 feet or such other building line as might be fixed by the Local Authority and the Purchaser should not erect any buildings on the land of a less prime cost than £750 for a single house or £1,200 for two semi detached houses. No buildings shall be used for any purpose other than as private dwellinghouses or professional residences. Before any building should be commenced the Purchaser should submit to the Surveyor of the Company drawings showing the intended elevations and plans thereof for reasonable approval by the said Surveyor and copies should be deposited with him and his fee of 10/6d paid in respect of each distinctive elevation or plan. The Purchaser should not without the consent in writing of the Company alter the external elevations of any such premises erected as above nor without such consent erect or suffer to be erected on the land any temporary buildings other than sheds and workshops to be used only for work incidental to the erection of permanent buildings thereon. The Purchaser should not remove any sand and gravel from the land except as might be required for the erection of buildings thereon nor commit or permit or suffer anything which might be a nuisance or annoyance to the adjoining or neighbouring property. Roofs of houses or outbuildings are to be tiled. Buildings are not to remain unfinished more than one year after commencement."

The restrictions in another conveyance, conveyance G of 3 May 1923, are in the same terms and affect the same part of the application land. The other conveyances, and the restrictive covenants in them in respect of which application is now made, are set out in an appendix to this decision.

The applicant's first originating application was made on 20 April 1999. It did not seek in that application the discharge or modification of the restriction that prevents the use of any buildings for any purposes other than as private dwellinghouses or professional residences. However, following an indication by solicitors, Dawson & Co, acting for some of the objectors that they would pursue the argument that the proposed flats would be in breach of this restriction, the applicant decided to seek its discharge or modification. I granted permission on 23 May 2000 to amend the application by adding the additional relief sought. The applicant, however, had asserted in correspondence with the objectors' solicitors that the restriction did not have the effect of preventing the erection and use of flats, and certain of the objectors therefore decided to apply to the High Court for a declaration to determine the question. As I was obliged to by rule 16 of the Lands Tribunal Rules 1996, on 26 May 2000 I ordered that the proceedings be suspended to enable application to the High Court to be made. The application in the Chancery Division was made on 28 June 2000, and on 14 September 2000, with the agreement of the defendants (the applicants in the present case) Deputy Master Bartlett made declarations to the effect that the use of purpose-built blocks of flats to be erected on land affected by the restriction and not built upon would be in breach of the restriction and that the restriction was enforceable by each of the claimants and the owners of 6 of the other houses in Broughton Avenue.

The applicants had on 24 August 2000 made a fresh originating application in respect of this use restriction, since in a decision on an interlocutory matter in another case I had held that it was not possible under the Lands Tribunal Rules to amend an application under section 84 by adding a further restriction to be discharged or modified. On 2 November 2000 I lifted the suspension on the first originating application and ordered that the two applications be consolidated.

Application land and surroundings

The application land lies in a residential area that was substantially developed in the 1920s and 1930s. Much of the development is on land that was in the ownership of a company called the White Hall Estate Company Limited. The company sold off the land for development and was wound up, it appears, in 1929. Ordnance survey plans of 1913/14 and 1935 /36 show the development of the area.

Broughton Avenue extends northwards from Hendon Lane (which runs north-east/south-west), to the east of Dollis Brook, and on the 1913/14 ordnance plan it was shown, wholly undeveloped, extending northwards to a point beyond Windsor Road, a road that runs westwards from Hendon Lane. At that time Windsor Road was almost completely developed with semi-detached houses. To the south of Windsor Road and also running westwards from Hendon Lane are Wickliffe Avenue, to the north of the application land, and Waverley Grove. The latter crosses Broughton Avenue south of the application land and continues westwards across Dollis Brook. In 1913/14 there were half a dozen semi-detached houses in Wickliffe Avenue and Waverley Grove was wholly undeveloped.

By the time of the 1935/36 ordnance plan, development had been carried out on both sides of Broughton Avenue and, north of Waverley Grove, it consisted of 14 semi-detached houses on the west side and four semi-detached and three detached houses on the east side. Waverley Grove and Hendon Lane had also been developed, mainly with semi-detached houses, and the south side of Wickliffe Avenue was almost completely developed. The north side of Wickliffe Avenue contained the Kensit Memorial College and a church, but was otherwise undeveloped. Broughton Avenue was now shown as terminating at Wickliffe Avenue. To the north of the houses on the west side a rectangular area was shown on the ordnance plan, of a length apparently sufficient to accommodate 8 or so semi-detached houses. This land, 0.67 acre in area and 230 ft long by 125 ft deep, was bought by the former Finchley Urban District Council from White Hall Estates Limited in 1937 for use as public open space. It forms part of a wider area known as Windsor Open Space, which extends northwards and southwards on either side of Dollis Brook.

The application land is 313 feet long and a 180 feet deep. It is on the east side of Broughton Avenue immediately to the north of number 38 and opposite numbers 69 to 77 and the southern half of the council's rectangle. There is a fall across the site from east to west, and the land continues to fall on the far side of Broughton Avenue down to Dollis Brook. The houses opposite are thus at a lower level. The application land remained undeveloped until 1947 when the existing Surrey Court flats were constructed. There are 16 flats in a single flat-roofed, two-storey building that extends for most of the length of the site and is set back by 110 feet from Broughton Avenue behind a drive and areas of grass. There is a low brick wall fronting the land. The flats appear to have been built to a typical early post-war standard and have a rather utilitarian appearance.

The section of Broughton Avenue north of Waverley Grove is a cul-de-sac. It is made up to the northern boundary of number 77 (a detached house, two storeys in front and three storeys on the lower side, which was built about 5 years ago on what was part of the curtilage of number 75). Beyond this point the Surrey Court drive curves into the application land, and the land that would have been used for the northwards extension of Broughton Avenue is physically part of the Windsor Open Space. Since 1935/36 it appears that no new buildings apart from Surrey Court and number 77 have been built in Broughton Avenue. Apart from this, the north side of Wickliffe Avenue has been developed, mainly with 3-storey houses, and with a 6-storey block of flats, Cranmer Court, constructed in 1970 on the land adjoining Windsor Open Space. There have recently been a number of flat developments in Hendon Lane.

The proposed development

The proposal is to demolish the Surrey Court flats and to construct, at the back of the site, a 3-storey block of 10 flats flanked by 3 houses to the north and 4 to the south. All these buildings would be set into the slope that runs down to Broughton Avenue, the flats by as much as 5.3 metres because they would contain a basement car park. This central block of flats would be about 4 feet higher than the existing development and they and the houses would project forward, to a maximum of 35 feet, in front of the existing Surrey Court development. There would be a second block of 5 flats ("the SF flats") on what is now open land at the north-west corner of the site, in front of the three houses that would flank the principal block of flats on its north side. The western wall of the SF flats would be about 3 feet from the low brick wall that separates the site from the open space land to the west. The proposal is to move into this smaller block those residents of Surrey Court that would have to be rehoused in order to enable Surrey Court to be demolished.

The proposed redevelopment is one of a number of schemes that the applicants have put forward in recent years. Three of these have been the subject of appeals, in 1997 (19 houses and 6 flats), 1998 (7 houses and 15 flats) and 1999 (30 flats). All the appeals were dismissed, but the inspector in 1998 appeal decision judged the proposal to be acceptable, subject to certain alterations. The alterations were made and the council granted permission later that year. It is a full permission, subject to 13 conditions. The proposals have met strong opposition from residents in the surrounding area. They have objected to the loss of openness, the amount of road traffic that the development would generate, the dominating appearance of the central block and the amount of excavation associated with it, and the effects of construction traffic.

The applicant's and objectors' cases

In its application the applicant advanced all four grounds in section 84(1) in relation to each of the restrictions that it asked to be discharged or modified. It made clear, however, that it only sought such discharge or modification as would permit the erection and use of the houses and flats shown on the site layout plans (Drawing number 001/E, March 1997) which accompanied the application for the planning permission granted on 10 June 1998. No attempt was made to distinguish between restrictions that were considered suitable for discharge and those in respect of which modification was sought.

Objections were maintained in relation to the restrictions in the covenant in conveyance H. The applications identify 5 restrictions in respect of which discharge or modification is sought. They are:

(i) Any houses should front towards Broughton Avenue ("the frontage restriction");

(ii) Not without the consent of the company to build nearer to Broughton Avenue than 20 feet or such other building line as the Local Authority might fix ("the building line restriction");

(iii) Not to use buildings for any purpose other than as private dwellinghouses or professional residences ("the use restriction");

(iv) Drawings of buildings to be approved by the company's surveyor; and

(v) Not to alter external elevations without the consent of the company.

The case for the Barnet London Borough Council was related to the building line restriction only. The cases for the other objectors related to the frontage, building line and use restrictions.

For the applicant Miss Caroline Shea called Eric Frank Shapiro BSc (Est Man), FRICS, IRRV, FCIArb, a partner in Moss Kaye and Roy Frank of Finchley Road, Swiss Cottage; Drummond Robson BSc, Dip TP, MRTPI, principal in the firm of Robson Planning Consultancy; and Robert Brian Dixon Dip Arch, RIBA, an independent design consultant in Dixon Sharman Associates Ltd. For Barnet London Borough Council Mr Matthew Brunning called David Langley Stephens ARICS, Chief Valuer to the council. Mr J M Fassbender of 36 Broughton Avenue appeared on behalf of himself and the objecting owners of numbers 38, 65, 67, 73 and 75. He tendered written statements from each of these and also from Mr Dennis Pepper, Chairman of the Friends of Windsor Open Space. Mr Keith Wise of number 65 and Mr Sadegh Jodieri of number 75 gave evidence, and Mr Ali-Reza Darougar of number 77 submitted a written statement.

The objectors described Broughton Avenue as a quiet cul-de-sac, with no flats in it other than Surrey Court. They expressed concern principally about the loss of a green, open and spacious environment and of the impact of SF flats on the Windsor Open Space and the views along Broughton Avenue; the overbearing impact of the central block of flats and overlooking from it; the number cars that would use Broughton Avenue and park in it; and disturbance, danger and possible damage from the building operations themselves, particularly from heavy lorries. There were suggestions that the excavations might cause structural damage to nearby property and interfere with ground water. A number of objectors said that they had no objection to the development of the land, provided that it was developed with houses and not flats and the building line was observed.

Mr Fassbender called Barrington C Sworn FRICS, sole principal of the firm of Sworn and Company, chartered surveyors of Chiswick; Rusi K Dalal, BE(Civil), DCT(BATT), CEng, FI Struct E, MICE, MconE, a consulting civil and structural engineer; and Paul Harris, who described himself as a fourth generation building formerly employed in managerial capacities by Richard Costain, Cubitts, John Laing, etc. Mr Sworn's evidence was directed to the visual impact of the SF flats, the interference during construction of the works of excavation, and the compensation that he considered the objectors would be due in the event of the discharge or modification of the restrictions. Mr Dalal calculated the volume of material that would require to be excavated for the development. Mr Harris expressed views on the number of vehicles that would be required for the construction work, the problems of construction, including drainage problems and existing retaining walls, the possibility of subsidence and disturbance during construction.

Mr Fassbender referred to a number of authorities: to Western v MacDermott (1866) LR 2 Ch App 72 at 74 for the proposition that passive acquiescence in one breach of covenant is not to be considered a waiver for all future time of the right to complain of other breaches; Re Diggens (Lands Tribunal, LP/27/1999, 20 November 2000), Re Peacock (Lands Tribunal, LP/37/1999, 8 May 2000) and Re Martin's Application (1988) 57 P & CR 119 on the different consideration applying to the grant of planning permission and the modification of restrictive covenants; to Re Mezmetals Ltd (Lands Tribunal, LP/66/1987, 31 July 1989) where the development would have involved "an extraordinary excavation", Re Tarhale Ltd (Lands Tribunal, LP/40/1989, 4 May 1990), Re Fletcher Sheltered Homes Ltd (Lands Tribunal, LP/56/1987) and Re Williams' Application (1987) 55 P & CR 400, in all of which Mr V G Wellings QC refused to discharge or modify restrictions because of the disturbance that construction would cause; to McMorris v Brown [1999] 1 AC 142 and Re Bromor Properties Ltd's Application (1995) 70 P & CR 569 on the "thin end of the wedge" argument; to Gilbert v Spoor [1983] Ch 27 (practical benefits not confined to views from the covenantee's land); to Lord Manners v Johnson (1875) 1 Ch D 673 (injunction for breach of covenant without the need to show damage); to Kemp v Sober (1851) 1 Sim NS 517 (anxiety about the effects of a breach of covenant is damage); and to Daniells v Medonca (1999) 78 P & CR 401 for the proposition that the fact that an injury – in that case for trespass – is capable of being estimated in money does not mean that such amount of money would be adequate compensation.

Having heard the evidence and submissions, I carried out an inspection of the application land and the surrounding area.

The declarations

In the Chancery Division proceedings two declarations were granted, as follows:

"1. that upon the true construction of a Conveyance dated 3^rd March 1925 ('the Conveyance') and made between White Hall Estates Limited and John Edward Key affecting land at Surrey Court Broughton Avenue Finchley London N3 (Title No.AGL 66162) the nature and extent of the restriction of buildings to use as private dwellinghouses or professional residences ('the Restrictions') contained within the Conveyance is such that use of purpose-built blocks of flats to be erected upon land affected by the Restriction and not currently built upon would be in breach of the Restriction

2. that the Restriction is enforceable by each of the Claimants and the owners of 28 30 34 69 71 and 75 Broughton Avenue Finchley London N3 and (as owner of the nearby part of the Windsor Open Space) the London Borough of Barnet."

A third declaration that was sought, that the court would, in the absence of discharge or modification, restrain by injunction the erection of a purpose-built block of flats on land not currently built upon, was not granted, this element of the claim being adjourned generally.

The question arises whether the declaration that the restriction is enforceable effectively concludes the questions of obsoleteness and express or implied agreement so as to prevent the applicant relying on grounds (a) and (b) in relation to the user restriction. Miss Shea argues that it does not, for the reason that the declarations were granted in the knowledge that these two grounds were relied on in the Lands Tribunal reference and that they were simply directed at establishing firstly that the wording of the use restriction was such as to preclude use as flats and, secondly, who it was that had the benefit of the covenants.

Acquiescence may be a bar to all relief or, in lesser measure, it may provide a ground for the court to refuse an injunction and to award damages under Lord Cairns' Act instead: see Sayers v Collier (1884) 28 Ch D 103. Acquiescence of the first sort would render the covenant unenforceable, but acquiescence of the second sort would not. There is, it seems to me, no reason why the express or implied agreement that is necessary to establish ground (b) should always constitute acquiescence of the first sort. Thus a declaration that a covenant is enforceable does not carry the implication that the acquiescence of the second sort cannot be relied on, or that ground (b) incapable of being established.

It also appears to be the case that changes in the character of the neighbourhood may in themselves render a restriction unenforceable: see Chatsworth Estate Co v Fewell [1931] 1 Ch 224. In order to succeed on this ground, however, it is necessary to show so complete a change in the character of the neighbourhood as to render the covenants valueless to the claimant, so that an action to enforce them would be unmeritorious, not bona fide, and merely brought for some ulterior purpose: ibid. In Re Truman, Hanbury Buxton & Co Ltd's Application [1956] 1 QB 261 the Court of Appeal were invited by counsel for the appellant to say that this test also applied to applications on ground (a), "obsolete" meaning, therefore, "absolutely valueless". In his judgment, Romer LJ at 272 conspicuously avoided deciding the case on this basis, as this Tribunal concluded in Re Luton Trade Unionist Club and Institute Ltd's Application (1969) 20 P & CR 1131 at 1139. As Scamell, Land Covenants p386, puts it, paragraph (a) is directing attention not to the question whether the covenant now serve any useful purpose but whether the covenant serves the purpose originally intended.

In my judgment, therefore, the effect of the declaration is not to preclude the applicant from relying on grounds (a) and (b) in relation to the use restriction. I turn then to consider in relation to each of the grounds each of the three restrictions that were in issue between the parties at the hearing – the frontage, building line and use restrictions.

Ground (a): obsoleteness

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 clear on behalf of the applicant that modification was sought only to the extent necessary to enable the development that had received planning permission to proceed. Secondly (see above), the test of obsoleteness is whether the original purpose of the restriction is still capable of being fulfilled. The question is not whether the covenant serves a useful purpose now, but whether it serves the purpose for which it was imposed. The fact (if it is the case) that objectors would suffer injury as the result of modification of the restriction would not mean that the covenant was not obsolete, unless the injury that would be suffered was one that the restriction was intended to prevent: see Luton Trade Unionist Club and Institute Ltd's Application.

The first restriction to be considered is the one that requires that any houses to be erected on the land should front towards Broughton Avenue, the frontage restriction. There was a difference between the parties as to whether Broughton Avenue, for the purposes of the application of this restriction, should be treated as ending at the point, outside number 77, at which it ceased to be adopted and made up or as extending northwards to Wickliffe Avenue (and possibly beyond) as shown on the ordnance survey plans of 1913/14 and 1935/36. The SF flats would be built 3 feet in from the western boundary of the subject land where the land shown as Broughton Avenue on the ordnance survey plans now physically forms part of the Windsor Open Space and is indistinguishable from it. If, as the applicant contends (and Mr Stephens of the Barnet London Borough Council asserted in his witness statement before, at the hearing, this was amended) that land is not properly to be regarded as Broughton Avenue for the purposes of the restriction, the SF flats would be in breach of it. So also would the three houses to be built behind it on the north side of the central block of flats. On the other hand if, as the objectors contend, Broughton Avenue should be treated as extending across the whole of the frontage of the application site, the SF flats would comply with the restriction but the three houses at the rear would not.

In my judgment the reference to Broughton Avenue in the restriction must be construed as it would have been understood at the time of the conveyances in 1923 and 1925. The ordnance survey plans of 1913/14 and 1935/36 both show Broughton Avenue as extending northwards, the earlier one to some distance beyond Windsor Road, the later one only as far as Wickliffe Avenue. I have no doubt that in 1923 and 1925 the references to Broughton Avenue in the conveyances of that date would have been understood to mean Broughton Avenue as extended across the boundary of the application land.

It is quite clear in my view that the restriction was imposed on the assumption that Broughton Avenue would be made up across the whole of the frontage of the land conveyed, and the purpose was to ensure that development was suitably laid out with houses facing the road. In the event development proceeded on the west side no further than the curtilage of number 75, and there is no realistic possibility of its continuing further than that. To the north of number 77 is the council-owned land, which is held by them for open space purposes, forms part of an open space and is shown as Metropolitan Open Land in the development plan. There is no realistic possibility of this land being developed or of Broughton Avenue being extended in order to serve such a development. As far as the present proposal is concerned, it is for a development that does not require Broughton Avenue to be extended. Thus not only is there at present no road – no Broughton Avenue – beyond the boundary the curtilage of number 77 but, given the present proposals, there will not be such road in future. In these circumstances, it is clear in my view that the frontage restriction no longer has any function to perform, in relation to the development for the purpose of which modification is sought, on that part of the application land that lies beyond the end of Broughton Avenue as it now exists. To that extent the restriction is obsolete and should be modified so as to permit the development proposed.

The second restriction that falls to be considered is the provision that "the Purchaser should not without the consent of the company erect any building on any part of the land nearer to Broughton Avenue than 20 feet or such other building line as might be fixed by the Local Authority," the building line restriction. Miss Shea suggested in closing that this provision did not impose an absolute prohibition on building within 20 feet of the road. It simply required the purchaser to obtain the consent of the company, and, since "the Company" (White Hall Estates Ltd) no longer existed, having been wound up in 1929, building could take place within the 20 feet without breaching the restriction. I do not think that this is right. The proper construction is that there is a prohibition on building within the 20 feet (or other prescribed building line) without the consent of the company. If the company no longer exists, its consent cannot be obtained, and thus building can only take place outside the 20 feet or other prescribed building line. The demise of the company, and with it the loss of the dispensing power, means that the restriction has to be applied without the possibility of dispensation (see In re Beechwood Homes Ltd's Application [1994] 28 EG 178 per Dillon LJ at 179M-180B).

In my judgment this restriction is obsolete in relation to the proposed development for the same reason as the frontage requirement. It was imposed on the assumption that Broughton Avenue would be extended across the whole of the frontage of the land conveyed and that the land would be developed with houses facing the road. Now that this objective is no longer achievable, the restriction is obsolete to the extent it prevents the construction of the SF flats, a small corner of which lies within the land edged red.

There is also a second reason why, in my judgment, the building line restriction should be deemed obsolete. It was expressed in the alternative – 20 feet or such other building line as the Local Authority might prescribe – and was subject to a dispensing power. The objective was to ensure that any houses were not constructed nearer the road than the company or, through prescription of a building line, the local authority, might deem acceptable. The company's dispensing power, as has been noted, has gone with the winding up of the company. That element of the restriction is clearly outdated and incapable of application. And the reference to the prescription of a building line is also outmoded. In 1923 and 1925 such a reference would not have related to the sort of building line that a highway authority can now prescribe under section 74 of the Highways Act 1980. This power was first created by section 5 of the Roads Improvement Act 1925, which came into force on 7 August 1925, later than either of the conveyances; and it is to be noted in any event that the reference in the restriction is to "Local Authority" rather than highway authority. The power to prescribe a building line that would have been in contemplation, in my view, was the power to do so as part of a town planning scheme prepared and approved under the Housing, Town Planning etc Act 1909: see, for an example of such a provision, in Re Ellis and Ruislip-Northwood Urban District Council [1920] 1 KB 343. It was a planning power that was in contemplation. Planning schemes have long since ceased to exist, and, under the present day planning regime, the objective of ensuring that houses are properly sited in relation to the roads that serve them is achieved not by the prescription of a building line in the development plan but through development control; and in the present case, of course, the siting of the buildings has been approved by Barnet London Borough Council in granting planning permission. The objective of the building line restriction – to ensure that any houses were not constructed nearer the road than the company or, through prescription of a building line, the local authority, might deem acceptable – is thus no longer capable of achievement, and must be deemed obsolete. The effect of this second reason for finding obsoleteness is to make discharge of the restriction appropriate.

The third restriction that falls to be considered is the prohibition on buildings being used for any purpose other than as private dwellinghouses or professional residences, the use restriction. The first declaration in the Chancery Division proceedings states that the nature and extent of this restriction "is such that use of purpose-built blocks of flats to be erected upon land affected by the Restriction and not currently built upon would be in breach of that Restriction." The proposed central block of flats would be constructed partly on the site of Surrey Court and partly on land that is not built upon. The SF flats would be on land that is not currently built upon. The question is whether, to the extent that the restriction would prevent the use as flats of parts of the central block and the whole of the SF flats, it should be deemed obsolete.

Since the restriction was imposed the only buildings that have been erected on the land edged red have been used as flats. They have been used as flats only, and they have used as flats for over 50 years. In the neighbourhood – which, in my view, should be treated as being the triangle formed by Broughton Avenue, Wickliffe Avenue and Waverley Grove/Hendon Lane and the frontage development on the outside of this triangle of roads – there have, in recent years, been substantial flat developments. Cranmer Court, at the west end of Wickliffe Avenue, is a 6-storey block built in 1970, and there are a further five developments in Hendon Lane, which have been carried out between 1980 and the present day (two are still under construction).

The purpose of restricting the use of buildings to use as private dwellinghouses or professional residences was evidently to create and preserve a particular character of occupancy on an estate developed with detached or semi-detached houses. No restrictions were imposed in relation to density, height, bulk or design of the buildings. The objective of the restriction was to control the use, but not the construction, of buildings on the land. The only use of the only buildings to have been constructed on the land has been, for over 50 years, as flats. Because of this and other flat developments the character of occupancy both in Broughton Avenue and in the neighbourhood is a mixture of houses and flats, in contrast to the evident expectation at the time the covenant was imposed, that the neighbourhood would be one of houses only. The proposal is to replace 16 flats (14 of them on the land edged red) with 15 flats and 7 houses. The 10-flat central block, the smaller part of the 5-flat SF block, and 5 of the houses (less a small corner of one) would be on the land edged red. Such a development in my judgment is in accordance with the character of occupancy in Broughton Road and the neighbourhood as a whole as it has become since the use restriction was imposed. To the extent that the use restriction impedes this development it must, therefore, in my judgment be deemed obsolete.

I should make clear that, in concluding as I do that the use restrictions is obsolete in relation to the proposed development, I do not do so on the basis that it is completely valueless in the sense in which those words were used in Chatsworth Estates Co v Fewell but for the reasons that I have explained. I deal later with the question of consideration to make up for any loss or disadvantage suffered by the covenantees.

Ground (aa)

Although my conclusions on ground (a) are sufficient to determine the application in relation to conveyance H, I will for completeness consider all the grounds in section 84(1) that were advanced on behalf of the applicant. The evidence that I heard was substantially directed to ground (aa). On this it was not suggested that the proposed development was not a reasonable user of the burdened land. Since planning permission has been granted for the development, I have no doubt that it would be a reasonable user. There is no suggestion on the part of the applicant that in impeding this user the restriction is contrary to the public interest. The disagreement between the parties is as to whether I should be satisfied in relation to each of the restrictions that in impeding the development the restriction does not secure to those entitled to the benefit of it any practical benefits of substantial value or advantage to them.

The case for the objectors is that they would be adversely affected by what is proposed, essentially in five respects. Firstly they say that there would be a loss of openness and in particular that the erection of the SF flats on land that is present open would be a serious intrusion on the open and leafy views that are enjoyed by them form their houses, from Broughton Avenue and from Windsor Open Space. Secondly they say that the central block of flats would be overbearing and, for those living opposite, would give rise to overlooking. Thirdly they say that the development would increase the amount of traffic on Broughton Avenue. Fourthly they say that the excavations required for the development could have an effect on the ground water regime, causing or exacerbating subsidence problems in nearby houses. Fifthly they say that the construction works would cause disturbance and would give rise to large volumes of construction traffic. The adverse effects that are claimed are not, it seems to me, ones which the restrictions were designed to prevent. For the purpose of applying ground (aa), however, this does not matter. The practical benefits on which reliance can be placed are any that in fact exist, whether or not it was a purpose of the restriction to confer them. It does not matter that they are incidental to such purposes. Thus, although the restriction does not prevent the construction of flats, the fact is that if a building could not be used as flats it would not be built. If, therefore, as the objectors claim, the construction of flats would adversely affect them the use restriction may secure to them a practical benefit in enabling this adverse effect to be avoided.

As far as the frontage restriction is concerned, this bites on the three houses to the north of the central block of flats and behind the SF flats. Although objections are raised to the SF flats and the prominence it is said that they would have in views northwards along Broughton Avenue, no such objection applies to the houses. They would be obscured to a significant extent by the two blocks of flats, and lying as they would at the back of the site would have very little impact. I do not think that they would have any adverse effect at all on any of those entitled to enforce the restriction, and the power to prevent their construction accordingly does not confer any practical benefit of substantial value or advantage on them.

The SF flats would stand on the wide area of open land that lies to the front of the Surrey Court flats. If the user restriction were not modified the flats would not be built. As approved they would to a small extent breach the building line restriction in that the south-west corner would be on the land edged red and less than 20 feet from the western boundary. The flats would be close to the Windsor Open Space and, because of the slight curve in Broughton Avenue, would appear from some viewpoints as a terminal feature.

In his decision letter on the 1998 planning appeal the inspector said this about the flats:

"Turning to the 3 storey block of SF flats, I consider that the building would not be a conspicuous feature of the site since from open land to the west it would be seen against the taller buildings towards the rear of the site, and in views from the south along Broughton Avenue it would be seen against the houses and 6 storey block of flats in Wickliffe Avenue. In addition, the apparent bulk of the building would be minimised by setting it into the slope of the site, and by the set back of the second floor from the front with sloping sides to the flank and rear."

I do not disagree with that assessment, although it is clear to me that the objectors would be very conscious of the change in outlook that the flats would produce and would find them intrusive. The difference between the views they now enjoy and those that they would have would be, in this respect, substantial. For the purpose of the present proceedings, however, it is not this comparison that matters. The relevant comparison is between what is proposed and the development that might reasonably be expected to be carried out if the restrictions were not modified. If the building were redesigned so as to remove the small part of it that breaches the building line restriction, the impact of the building would not be discernibly different. Even if the whole of it was moved so that it was all 20 feet back from the front of the site, it would still be 90 feet further forward from the front of Surrey Court, and its impact would be only slightly reduced. The height and depth of the building are not significantly different from some of the houses that have been approved in the planning permission, so that it does not appear that, if houses only were to be erected, the bulk of the development would be much reduced.

As with the SF flats, the central block of flats would not be built if the user restriction were not modified. The inspector said this about it:

"The main walls of the central block of flats would rise to 2 storeys which would provide a visual link with the eaves of the neighbouring houses. Although the full height of the block would be apparent, it seems to me that the set back of the second floor from all sides of the building and the shallow pitch to the roof would minimise the visual impact of the upper part of the building, so that the two storey element would be the dominant feature.

The roof of the central flats and the tops of the roofs of 5 of the houses would be higher than the parapet of the existing block. Nonetheless, I consider that this increase of about 1 m in height would not be significant, bearing in mind the open setting to the front of the buildings and the visual separation between the roofs provided by the hipped ends. Furthermore, the eaves of the houses and the main front wall of the central flats would be lower than the existing block of flats as a result of a reduction in the ground level, which to my mind would reduce the impact of the bulk of the buildings."

I do not disagree with this assessment, although I accept that those living opposite would be aware of the change in outlook and would find it regrettable. As with the SF flats the relevant comparison, however, is not with what exists at present but with the development that could be carried out without the restrictions being breached. The central flats would be set back from the frontage by about 85 feet. Houses built up to the 20 feet building line (65 feet further forward), which a number of objectors said that they would find acceptable, would be likely to have a greater apparent height, a greater impact and to give rise to a greater degree of overlooking.

Moreover it is in my view unlikely that a development of houses only would be significantly less bulky or give rise to significantly less traffic than the development proposed. Planning Policy Guidance Note No 3 (Housing) at paras 57 and 58 requires planning authorities to encourage housing development which makes more efficient use of land, and the inspector noted that the density of the proposal, at 176.8 habitable rooms per hectare, would only be marginally above the maximum figure for family sized accommodation contained in policy H.4.1 of the London Borough of Barnet Unitary Development Plan. In the 1997 appeal the density of the proposed development (19 houses and 6 flats) was 195.6 hrh, and the inspector concluded that this was not excessive. Thus there would be pressure, based on policy, to maximise the density of any development comprising houses only. As is evident from the appeal decisions the constraints would be the bulk of any such development and its impact on nearby houses. The 1998 planning permission, based as it was on an appeal decision, would undoubtedly in my view be treated as establishing what was acceptable. There is no reason to suppose that a house-only development would be more limited in terms of bulk and the effect on adjacent houses than the permitted scheme. It is to be noted that the 1997 scheme, which was refused, was for houses arranged in terraced blocks that were higher than the central block of flats in the current proposal. A developer could be expected, therefore, in my view, to propose a house-only development of comparable bulk and with comparable impact to the consented scheme and permission for it could be expected.

Objectors expressed concern that the development proposed would involve substantial excavation of the London clay beneath the surface of the site, and that this would give rise to disturbance during construction and to the risk of subsidence problems for neighbouring houses. Mr Dixon estimated that the total amount of spoil to be disposed of would be 5619 cubic metres, which would require 140 truck loads of 40 cubic metres to remove it. Mr Dalal's estimates, which excluded the SF flats and the type H1a house, totalled 7833 cubic metres, and he said that 1500 lorry loads, using 10 tonne lorries, would be needed to remove it. Mr Dalal's calculations, which derive from measurements of the basement and other excavated areas shown on the drawings, are, I find, more nearly correct than those of Mr Dixon, who had based his calculations on the areas of the building at roof level rather than on the actual areas to be excavated. It is clear, however, that in the region of half the volume of spoil to be excavated would come from the house sites, and in the case of one house type, the H2a, Mr Dalal's calculations showed excavations totalling 1728 cubic metres, compared with 3997 cubic metres for the 10-flat central block. It was suggested on behalf of the applicant that a straight replacement of the 10-flat block with three H2a houses would be possible, and this is clearly the case. It does not appear to me that the volume of excavated material would be likely to be significantly less if the site were to be developed with houses alone rather than with a mix of houses and flats.

In view of this conclusion, it does not seem to me that the amount of disturbance during construction would be materially greater if the use restriction applied than if it were modified so as to enable the permitted development to proceed. For the same reason, I see no reason for thinking that the effect of ground water would be materially different. In any event the evidence before me on ground conditions in the area is anecdotal and inexpert. Mr Harris, who has not been actively involved in building for 20 years and professes no qualifications, is not an expert, and he treated as evidence of subsidence the cracking of paving stones on drive areas. I think there may be some anxiety on the part of some objectors that the development of flats may give a greater risk of subsidence in their houses, and this is a material matter to be borne in mind when considering ground (aa), but the evidence does not suggest that such fears are justified.

Mr Sworn said that any modification would set a precedent that created "a continuing risk of permission being granted for flats encroaching directly over the building line." Other objectors also referred to what is known as the "thin end of the wedge" argument, and Mr Fassbender cited cases that deal with it. The argument is that if a decision to modify a restriction might constitute a precedent for the modification of similar covenants elsewhere on the estate, the avoidance of such a precedent is a practical benefit which may be of substantial value or advantage to the covenantees. I am satisfied that there is no force in the point in the present case. The northern part of the application land, fronting as it does not a made-up road but open space, means that my decision in respect of the building line restriction on ground (aa) creates no sort of a precedent for any land that fronts Broughton Avenue. Similarly my conclusions on the use restriction, applying as they do to land that has only ever contained flats, creates no precedent that might be applied to other land.

My conclusion is that none of the three restrictions in conveyance H that fall to be considered under ground (aa), either individually or in combination, confer practical benefits of substantial value or advantage to the objectors. Mr Sworn expressed the opinion that each of the objectors' houses would be reduced in value by 3% as a result of the development, and the value of the houses in the area was, he said, in the range £300,000 - £400,000. Mr Shapiro said that, on the contrary, house prices would be increased because of the uplift in quality that the development would bring. On this, I prefer Mr Shapiro's view. However, once again the relevant comparison is not with the existing development, but with the development that could be expected to take place if the restrictions remained unmodified. I have no evidence on this, and I have no reason to conclude that the objectors' houses would be worth any more in such circumstances than if the proposed development were carried out.

The highest, in my judgment, that it can be put in the objector's favour is that the use restriction confers a practical benefit upon them in that it enables their present personal preference, which is for houses rather than flats, to be realised to a greater extent than if the restriction were not modified, and reduces the anxiety which some of them feel, but for which there is no justifying evidence, about subsidence. I conclude that a small payment of £2,500 per house to those who have maintained their objections would be adequate compensation for these personal disadvantages. I can draw no conclusion in the case of those who have not maintained their objections that they share the same personal preferences and anxieties as the objectors, and my conclusions in this paragraph do not apply to them.

The position of the Barnet London Borough Council is different from that of the other objectors. The rectangular area of land owned by the council is separated from the application land by a strip of land 40 feet or so wide that would have become part of Broughton Avenue if it had been extended but now physically forms part of Windsor Open Space. As I have said, it is evident that it could have been developed with 8 or so semi-detached houses with plot widths similar to those to the south of it had it not been bought by the former Finchley Urban District Council. The council objected to the application on the ground that the development would have an adverse effect on the open space. It sought compensation of £3,200 in the event that the application should be granted.

In his witness statement Mr Stephens, the Chief Valuer to the council, asserted that the proposal was contrary to two of the restrictions. The first restriction was that requiring that any houses to be erected on the land should front towards Broughton Avenue. He said that the block of SF flats would not front onto Broughton Avenue but onto the land between Surrey Court and Windsor Open Space. The second restriction was that requiring elevations and plans of any building to be submitted for approval to the Surveyor of the Company. He said that the council as landowner was the successor to the company and its approval – as landowner, not as local planning authority – was required. Mr Stephens said that none of the grounds for modification or discharge of either of these restrictions was made out.

When he came to give evidence Mr Stephens expressly abandoned reliance on either of these restrictions. Instead, he said that the development was contrary to the restriction forbidding building within 20 feet of Broughton Avenue or such other building line as the local authority might fix. The objection was to the SF block, which would be built 105 feet nearer to the Windsor Open Space than Surrey Court. In sunshine the flats would cause a shadow to be cast over the open space and this would detract from its open nature and could detrimentally affect its use by the public. He estimated the value as open space of the council's rectangular piece of land to be £16,500. and he thought that this would be reduced in value by 20%

I do not think that the council's right under the covenant to prevent development within 20 feet of Broughton Avenue affords it any practical benefit of substantial value or advantage. The open space is surrounded by residential development. 77 Broughton Avenue, recently constructed, abuts the rectangular area itself. A short distance to the north of the application land is Cranmer Court, a 6-storey block of flats. This is prominent in views from the open space. The comparison made by Mr Stephens for the purpose of his valuation – between the impact of Surrey Court and that of the SF block, 105 feet nearer to the open space – is clearly the wrong one. The right comparison is between the impact of the SF block, 3 feet from the boundary (and about 40 feet away from the council's land) – which the council is able under the covenant to prevent – and development 20 feet back (about 60 feet from the council's land), which the council could not prevent. There would in my judgment be no significant difference between them. In fact, however, it is only a very small part of the SF block that is on the land edged red in front of the 20 feet line. The rest is on the land edged green or behind the 20 feet line. There is no doubt that the block could be so designed as to exclude the small part that infringes the covenant, and the difference in terms of the impact on the open space would be imperceptible.

I should add that I see no basis for Mr Stephens's assessment of the compensation that the council claim. I do not think that the council's land would be diminished in value at all, and I can see no justification for the award of any compensation.

Ground (b)

No question arises on ground (b) in relation to the objectors who have sustained their objections to the discharge or modification of the frontage and the building line restrictions. These restrictions have not been breached, and there is nothing from which it could possibly be inferred that the objectors have agreed to the restrictions being discharged or modified. As far as the use restriction is concerned, on the other hand, the use of the application land as flats for a period of over 50 years implies, in my view, an acceptance, on the part of those entitled to enforce the restriction, of any use as flats that would have an effect no different from that of the present development upon the residential character of the area. For reasons that I have set out in relation to ground (a), I do not think that the effect of the proposed development would be materially different in this respect, and the application in respect of the use restriction is accordingly made out on ground (b). As with ground (a) I should make clear that this is a conclusion that does not imply that the restriction is unenforceable. The nature of the acquiescence is not of the sort, applying Sayers v Collier, that would constitute a bar to all relief.

Ground (c)

The conclusions I have come to in relation to ground (aa) mean that the discharge or modification of the frontage and building line restrictions so as to permit the proposed development would not in my judgment injure the persons entitled to rely upon them. Ground (c) is accordingly made out in relation to those restrictions. I have concluded that the user restriction confers a practical benefit in enabling objectors to realise their present personal preference for houses and reducing their anxiety about subsidence. It follows that it cannot be said that they would not be injured by discharge or modification.

The other restrictions

Restrictions (iv) and (v) in conveyance H, which require drawings of proposed buildings to be submitted to and approved by the company's surveyor and not to alter elevations without the consent of the company are plainly obsolete in view of the fact that the company no longer exists. No contentions to the contrary were advanced by the objectors. None of the parties addressed me on the restrictions in the other conveyances. I am satisfied that with certain exceptions all the restrictions in conveyances A, I, J, K and L can be discharged. They are obsolete, and I can infer from the absence of objection both that there is agreement to their discharge and also that discharge would cause no injury. The exceptions are the covenants in conveyances A, K and L not to use any building other than as a private or professional residence (conveyance A) or a private dwelling house or professional residence (conveyances K and L). These restrictions must be modified on grounds (a), (b) and (c), rather than discharged, and this should be in the same terms as for the equivalent restriction in conveyance H.

Discretion

There is only one matter that appears to me to require particular consideration on the question whether, having found grounds for discharge and modification made out, I should nevertheless refuse relief as a matter of discretion. (Apart from this I can see no possible reason for refusing relief.) The matter arises in relation to the building line restriction. The proposed SF flats would be built only partly on the land edged red. The greater part of the block would be on the green edged land to the north. That land, title number AGL66163, is subject to restrictive covenants. Those in conveyance A are included in the present application. There are also restrictive covenants in a conveyance dated 7 January 1925, one of which is not to erect any building nearer than 40 feet to Broughton Avenue. The charges register states that these covenants affect the land "tinted blue on the filed plan", which is shown as a narrow segment at the northern end of the land edged green. The proposed SF flats would be to the south of this segment. Mr Fassbender produced, without comment upon it, a letter dated 16 March 2000 from Dawson & Co in which it was suggested that the filed plan was not correct because the conveyance of 7 January 1925 related to the major part of title number AGL 66163, and not the small part tinted blue. The letter asked that the filed plan be properly coloured. Mr Fassbender also produced a copy of the conveyance of 7 January 1925. It relates to land with a frontage of 50 feet to Broughton Avenue, apparently immediately abutting the red edged land.

These documents were, as I say, produced without comment. The applicant's first application as originally made sought the discharge or modification of restrictions in the conveyance of 7 January 1925, but the application was later amended so as to delete this part of it – no doubt when the applicant noticed that the register showed only the land tinted blue as being affected. Miss Shea says that no point arises on the documents that were produced by Mr Fassbender, and none was raised. If the register is wrong, there is a procedure by which rectification may be sought, but Dawson & Co have not begun to take the necessary steps.

The point, if there is one, must relate to the exercise of my discretion. It might be argued that if the SF flats would be in breach of a restriction on the land edged green which is not the subject of the current application, modification of the restrictions on the land edged red should be refused so as not to prejudice a future application to modify the restriction on the land edged green. I do not think, however, it would be right to refuse the modification on this ground. The SF flats would not be in breach of the restriction in the conveyance of 7 January 1925 as it is recorded in the charges register, and it is right that I should approach the matter on this basis.

Compensation and terms of the order

I have concluded in relation to ground (aa) that a sum of £2,500 for the owners of each house in respect of which objection was maintained would be adequate compensation for the disadvantage suffered by them for the modification of the use restriction. Had I determined the application on ground (a) or ground (b) alone I should equally have thought it just to make awards of that amount. The terms of the modifications also need to be considered. The applicant says that where a restriction is to be discharged or modified it agrees that a further restriction should be imposed in the following terms: "That no further dwelling houses and/or flats shall be erected on the land described in this Application than those depicted on Drawing No 001/E dated March 1997, as annexed to this Application, and the same shall be used for residential purposes only." I can see no need to add a further restriction in the case of those restrictions that I have said should be discharged. In the case of those restrictions that I have said should be modified, that is to say the frontage restriction in conveyances G and H and the use restriction in conveyances A, G, H, K and L, the modification can in my view be achieved by the insertion in each case of an appropriate proviso. I do not think that it is enough, however, to express the proviso simply in terms of the layout plan that was incorporated in the 1998 permission. The case for the applicant was based not just on this drawing but on the permission in its entirety, including in particular the elevations showing the heights of the buildings. Each proviso should thus be related to the planning permission.

The following order will accordingly be made:

In conveyance H –

Restriction (i) is modified on grounds (a), (aa) and (c) by the insertion of the following: "Provided that houses and flats may be constructed in accordance with planning permission C00188F issued on 10 June 1998."

Restriction (ii) is discharged on grounds (a), (aa) and (c).

Restriction (iii) is modified on grounds (a), (aa) and (b) by the insertion of the following: "Provided that flats constructed in accordance with planning permission C00188F issued on 10 June 1998 may be used as such."

Restrictions (iv) and (v) are discharged on ground (a).

The restrictions in conveyance G are discharged or modified in the same way as those in conveyance H.

All the restrictions in conveyances A, I, J, K and L in respect of which application is made are discharged on grounds (a), (b) and (c) except the restriction in conveyance A which limits the use of any building to use as a private or professional residence and the restrictions in conveyances K and L which limit the use of any building to use as a private dwellinghouse or professional residence. In each case the restriction is modified on grounds (a), (b) and (c) by the insertion of the following: "Provided that flats constructed in accordance with planning permission C00188F issued on 10 June 1998 may be used as such."

The applicants will pay the following sums:

To Mr J M Fassbender, Mrs Zelda Fassbender and Mrs Michelle Queenie Kauffman, all of 36 Broughton Avenue, £2,500;

To Miss Razia Currimbhoy, Ms Salimah Currimbhoy and Mr Zafar Currimbhoy, all of 38 Broughton Avenue, £2,500;

To Mr Keith Wise and Mrs Carole Harding, both of 65 Broughton Avenue, £2,500;

To Mr Mujibul Islam and Mrs Hifnun Nahar Islam, both of 67 Broughton Avenue, £2,500;

To Mr Michael-Chris Michael of 69 Broughton Avenue £2,500;

To Mr Raymond Beckman and Mrs Carole Beckman, both of 73 Broughton Avenue, £2,500;

To Mrs Alison Jodieri and Mr Sadegh Jodieri, both of 75 Broughton Avenue, £2,500; and

To Mr Ali-Rezar Darougar of 77 Broughton Avenue £2,500.

A letter on costs accompanies this decision, which will take effect when, but not until, the issue of costs is decided.

DATED 30 March 2001

George Bartlett QC, President

Addendum on Costs

The applicant seeks costs against each of the objectors. Apart from its success in achieving the discharge and modification of the restrictions, it relies on a Calderbank offer made to each objector by letter dated 15 February 2001, copies of which it produces. (The sealed offer procedure was not followed.) The offer was to pay £2,500 per property for which an objection was lodged and it was conditional on the offeree and all other objectors withdrawing from the proceedings and consenting to the development. The applicant says that, in view of the fact that the council were awarded no compensation and the award per house was £2,500, the same amount as offered, costs should be awarded on an indemnity basis after the date of the offer.

The council, surprisingly, ask for their costs. Alternatively they say that if costs are awarded against them, the order should only be for such costs as were specifically caused by their own particular objection. The other objectors say that there should be no order as to costs. The house owner objectors say that it was reasonable for them not to abandon their rights without a judicial consideration of the issues. The applicant initiated the proceedings for its own benefit and should pay its own costs. A section 84 application is not ordinary litigation but a means of achieving the compulsory acquisition of a house owner's rights. As far as the offer is concerned, the objectors say that it was not within the power of any of them to ensure that all objections were withdrawn, so that it was incapable of acceptance by the owners of any individual house.

The objectors are correct in pointing to the difference between section 84 proceedings in the Lands Tribunal and ordinary litigation. A successful applicant will not necessarily be awarded costs against an objector as though he were a successful claimant enforcing a right by action in a court. In the present case, although the use restriction in conveyances G and H was modified, the applicant was ordered to pay £2,500 in relation to each house of the objectors. In the absence of any offer on his part, an applicant in such circumstances could expect to have to pay the objectors' costs to the extent that they were incurred in resisting the modification of the particular restriction. Here no offer of any compensation had been made by the applicant until the letter of 15 February 2001, and no other attempt to settle the case was made. The offer (of precisely the same sum as was awarded) counts for little, in my view. An objector who had accepted the offer and withdrawn his objection would have received nothing unless all the other objectors had also withdrawn. In these circumstances it was reasonable for the house owner objections to be sustained in relation to the use restriction. On the other hand, the frontage restriction was modified and the building line restriction was discharged on grounds that included ground (c) – that no injury would be caused by the discharge or modification. In the light of these considerations I accede to the objectors' contention that there should be no order for costs as between the applicant and the house owner objectors.

The council's position is different. I found their objection to be wholly lacking in foundation. Moreover the basis of the objection changed between the service of the expert's report and the hearing, and the valuation put forward in support of the claim for compensation was misconceived. Taking account of the extent to which the council's involvement impinged on the hearing, the appropriate order in my judgment is that they should pay one fifth of the applicant's costs. Such costs in default of agreement will be subject to a detailed assessment by the Registrar of the Lands Tribunal on the standard basis.

DATED 16 May 2001

George Bartlett QC, President

APPENDIX

Conveyance A dated 3 September 1878 affects Title Numbers AGL66163, AGL66162, MX3556, AGL66158, and NGL751978 and contains the following restrictions:

"Not to erect or build on the said hereditaments houses of any other description than detached or semi-detached villas or houses with the appurtenances thereto of not less than the minimum rack rent value per annum of £80 for each detached villa or house and £60 for each semi-detached villa or house and will not erect any house nearer Adelaide Road or Finchley Lane than the building line shown on the said plan and will not erect or build or suffer to be erected or built any building other than the boundary fences in front of such building line and that such house so built should face the road nearest to the building line. Not to use any building other than as a private or professional residence and necessary stables and offices connected therewith."

Conveyance I dated 30 September 1903 affects Title Number MX3556 and contains the following restriction:

"No house or part of a house shall be erected nearer the road to which it fronts than the building line shown on plan drawn thereon and no building other than boundary fences shall be erected in front of such line or lines."

Conveyance J dated 23 June 1926 affects Title Number MX3556 and contains the following restriction:

"To erect the houses so as to front towards Broughton Avenue and not without the consent of the Vendors to erect any building fronting towards any other direction or to erect any building on any part of the premises near to Broughton Avenue than twenty feet … before any building shall commence the Purchaser shall submit to the Vendor's surveyor drawings showing the intended elevations and plans thereof for reasonable approval by the Vendor's surveyor … and not without the consent in writing of the Vendor his heirs or assigns to alter the external elevations of any such premises erected as above … roofs of houses or outbuildings to be tiled."

Conveyance K dated 31 May 1923 affects Title Numbers AGL66158 and NGL751978 and contains the following restrictions:

"To erect houses so as to front towards Waverley Grove and not without the consent of the Vendors to erect any building fronting towards any other direction or to erect any building on any part of the premises nearer to Waverley Grove than 40 feet and not to erect any buildings on the property of a less prime cost in labour and materials than £1,000 for a single house or £1,500 for two semi-detached houses. Such buildings not to be used for any purpose other than a private dwelling house or professional residence. Before any building operations shall commence the Purchaser shall submit to the Vendors' surveyor drawings showing the intended elevation and plans thereof for reasonable approval by the Vendor's surveyor … and not without the consent in writing of the Vendors their successors or assigns to alter the external elevations of any such premises erected as above … roofs of houses or outbuildings to be tiled, buildings not to remain unfinished more than one year after the commencement of building."

Conveyance L dated 5 December 1923 affects Title Number AGL66158 and contains the same restrictions as conveyance K.

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You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Marcello Developments Ltd, Re [2001] EWLands LP_31_2000 (30 March 2001) URL: http://www.bailii.org/ew/cases/EWLands/2001/LP_31_2000.html Cite as: [2001] EWLands LP_31_2000