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You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Boulton & Anor, Re Law Of Property Act 1925 [2004] EWLands LP_31_2003 (4 August 2004) URL: http://www.bailii.org/ew/cases/EWLands/2004/LP_31_2003.html Cite as: [2004] EWLands LP_31_2003

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[2004] EWLands LP_31_2003 (4 August 2004)

LP/31/2003

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – discharge or modification – application to permit operation of substantial house as a children's' day care nursery – effect on neighbouring properties and on character of area from increased traffic and noise – grounds (1)(a), (c) and (aa) - application refused

IN THE MATTER of an APPLICATION UNDER

SECTION 84 of the LAW OF PROPERTY ACT 1925

BY

Mr MAURICE BOULTON

AND

Mrs PATRICIA BOULTON

Applicants

Re: The Gate House, Barmpton Lane,

Darlington, Co Durham, DL1 3HA

Before: P R Francis FRICS

Sitting at: Darlington County Court, Coniscliife Road, Darlington, Co Durham

on

6 July 2004

The following cases are referred to in this decision:

Re: Bass Ltd's Application (1973) 26 P&CR 156

Re: Fairclough Homes Ltd (2004) LT ref: LP/30/2001

Ian Dawson, instructed by Hewitts Solicitors of Bishop Auckland, appeared for the applicants

Stuart McDougall and Mark Wilkinson appeared as representatives of the objectors


 


DECISION

Introduction

1. The applicants in this case seek the discharge or modification of a restrictive covenant to enable them to use The Gate House, Barmpton Lane, Darlington, DL1 3HA ("the application land") as a children's' nursery/day care centre in accordance with the terms of a planning permission obtained from Darlington Borough Council on 13 September 2001. The application land comprises a large and imposing detached house constructed in about 1900 of brick under slated roofs, with accommodation on 3 floors. The ground floor has a number of single-storey extensions and there are several large reception rooms, 8 bedrooms and the usual domestic offices including kitchen, utility room, and bathrooms. The house is located centrally within its own well-maintained gardens and occupies a corner plot, understood to extend to approximately 1,700 sq m, at the junction of Barmpton Lane and Whinfield Road, immediately adjacent to a large, busy roundabout serving those two roads, and Stockton Road. The Barmpton Lane spur from which the land has vehicular access has been stopped-off at its former junction with Whinfield Road and is, therefore, a predominantly residential cul-de-sac .
2. The south and east boundaries of the application land are onto the main Barmpton Lane that connects with the roundabout and Whinfield Road. The western boundary, with the driveway to a parking area for up to 7 cars is onto the Barmpton Lane Spur, and the northern boundary is onto 3 modern detached houses – 1 and 2 Gatehouse Close and 6 Barmpton Lane.
3. Restrictions were imposed upon The Gatehouse in a transfer dated 13 October 1977 made between (1) Leslie and Company (Northern) Limited and (2) Gordon Richard MacDonald and Shirley MacDonald. The material covenants provided:

"….that the transferees and their successors in title will not:

(a) Do or cause or permit to be done on the property hereby transferred or any part or parts thereof or on any buildings erected thereon anything which may be or grow to be a nuisance damage or annoyance to the transferor or his successors in title owners or occupiers for the time being of any of the retained land or any part or parts thereof

(b) Use or permit to be used any buildings for the time being erected on the property hereby transferred or any part thereof other than for private residential purposes."

4. By an order of the Lands Tribunal dated 14 July 1987, the covenant was modified (by agreement between the then parties) as follows:

"The relevant restriction…is hereby modified so as to permit the use of the premises as a private residential and nursing home in addition to their use for private residential purposes."

5. The outstanding objectors to this application (one objection having been withdrawn) are Stewart McDougall, 3 Gatehouse Close (and representative of all the objectors); Martin and Tracy Thompson, 1 Gatehouse Close; Mark and Sarah Wilkinson, 6 Barmpton Lane; A and J Rumney, 8 Barmpton Lane; Edward and Patricia Forbes, 12 Barmpton Lane; and William and Margaret Upton, 14 Barmpton Lane. The applicants accept that all the objectors are entitled to the benefit of the restrictions.
6. The applicants seek discharge of the restrictions on the following grounds under section 84(1) of the Law of Property Act 1925:

(a) That by reason of the changed character of the neighbourhood (the application land now fronts a noisy and busy road junction) the covenant ought to be deemed obsolete and

(c) The level of traffic noise is now such that any additional noise or disturbance caused as a result of the proposed discharge will not injure those with the benefit of the covenant.

Alternatively, insofar as the application is for the modification of the covenant:

(aa) The covenant does not secure to the objectors practical benefits of substantial value or advantage, and it impedes the reasonable user of the application land as a children's day nursery (Class D1).

The applicants consider that money would be adequate compensation for any loss or disadvantage, which any person entitled to the benefit, may suffer from discharge or modification of the restriction.

7. The parties produced an agreed statement of facts and issues from which, together with the evidence contained within a joint statement from the valuation experts, witness statements and the evidence before me at the hearing, together with my inspection of the application land, surrounding area, and the applicants' other Darlington nursery on the day before the hearing, I derive the facts set out in this decision.

Planning

8. Planning permission for the use of the application land as a children's' day nursery was granted by Darlington Borough Council, subject to conditions, on 13 September 2001. Those conditions included:

(3) Play areas within the curtilage of the premises shall be situated towards the Whinfield Road frontage of the site and enclosed with close boarded fencing or similar treatment….REASON – In order to safeguard the amenities of adjoining residential properties.

(4) The use hereby permitted shall not be carried on outside the hours of 7.30am to 6.00pm Monday to Saturday, and not at all on Sundays….REASON – In order to safeguard the amenities of adjoining and neighbouring residential properties.

(5) A new, separate pedestrian access on the southern frontage of the site adjacent to Barmpton Lane shall be provided, together with a footpath link to the main entrance of the building…..REASON – In order to provide safe pedestrian access to the building in the interests of highway safety.

(6) The existing pedestrian access on the Whinfield Road frontage of the site shall be kept permanently closed….REASONS – In the interests of highway safety.

9. The council stated that, in arriving at its decision, the following policies of the Darlington Local Plan were taken into account: H15 The Amenity of Residential Areas, R25 Provision of Community Facilities and Services and T13 New Development Standards. It was recorded in the minutes of the Planning committee meeting held on 12 September 2001, at which the application was considered, that the committee had taken into account 12 letters of objection, a petition containing 54 signatures, the representations of Mr McDougall and the views of Mr Boulton, the applicant.
10. The planning permission for use of the application land as a residential care home, in 1987, restricted the number of occupants to 8, subsequently amended to 11. In 1995, permission, which has not been implemented, was obtained on appeal for an additional 7 bedrooms. In 1998 further permission was obtained for the installation of a lift, the provision of ground floor lounge and laundry extensions, and more bedrooms in a first and second floor extension. That permission has also not been implemented.

Case for the applicants

11. For the applicants, Mr Dawson submitted that the principal issues to be considered were (1) whether the character of the application land had changed materially since 1977, (2) whether the proposed use was reasonable and (3) whether impeding that use was contrary to the public interest or secured to the objectors practical benefits of substantial value or advantage. As to (2), there was no dispute between the parties as the objectors accepted that the proposed use was reasonable.
12. In the applicants' view, the character of the application land and the neighbourhood has changed. The location of the property abutting a very busy road junction meant that, with significant increases in traffic and the resultant noise levels over the years, any increase in such levels caused by children playing in gardens, or from parents dropping off and collecting them, would be all but unnoticeable. As to the property, when the covenant was imposed the Gate House was a private residential dwelling. It is now commercial premises, planning permission having been obtained for such use in 1987, and it has been substantially extended as a result. The area is no longer, therefore, exclusively residential and is not, as submitted by the objectors, a quiet and peaceful place to live.
13. In response to the principal objections to the proposed use – increased traffic flow, with resultant noise and congestion and inadequate parking within the curtilage of the application land, Mr Dawson said that these concerns had been raised when the planning application had been made. The Highways Engineer had responded by saying :

"It would normally be a requirement for there to be sufficient area for manoeuvring within the site to allow parents to pick up/drop off children and though there is enough space within the site to accommodate this, it is likely that this will occur on the highway adjacent to the premises. The section of highway fronting the site is at the head of a cul de sac and the carriageway is wide enough for vehicles to turn around with ease. It is possible that vehicles may park in front of adjacent residential properties, however, start and finish times for nursery schools tend not to be fixed and any additional traffic would not be arriving at the site all at one time, so it is, therefore, unlikely that this will occur to any great extent.

The existing hardstanding/parking area within the site is large enough to provide for at least 5 vehicles which is considered an acceptable provision for such a use and the number of staff in this instance (a total of 15 staff would be employed at the premises)."

14. The Highways Engineer had estimated that there would be 220 additional vehicle movements per day as a result of the proposed use, and that figure was not in dispute. However, whilst it was acknowledged that there would be less traffic generated if the use was as a residential care home, it was submitted that the true comparator should be related to the maximum level of vehicle trips that could emanate from the Gate House with however many residents the site could fairly be extended to accommodate. There was nothing in the restriction that prevented the use of the property as bedsits, or, subject to planning, conversion to flats. That could well create significant increased traffic movements, at all times of the day and night, 365 days per year.
15. Whilst the Highways Engineer considered 5 on-site parking spaces to be sufficient, there was, Mr Dawson said, ample room for the provision of further parking if it became necessary. Regarding additional noise, Mr McDougall and Mr Wilkinson accepted during the hearing that noise from children playing in the grounds, on the side of the site furthest from their properties, would be unlikely to be a problem. Their main concern was traffic noise from the additional movements, and doors slamming. The report commissioned from Noise and Vibration Associates ("NVA"), admittedly commissioned be the applicants, and presented in evidence, should allay any such fears. It should also be remembered, Mr Dawson said, that the Planning Authority had concluded "that noise associated with the proposed use is unlikely to cause any significant harm to the amenity of nearby residents."
16. It was submitted that the applicants have substantial experience in running children's' day care facilities – they own and operate Williams House elsewhere in Darlington. That caters for 80 children and it can be expected, therefore, that from the outset proper standards will prevail.
17. As to any alleged potential devaluation of the objectors' properties, the experts had agreed that the noise of children playing with the garden of the Gate House would be unlikely to have any effect on values, and that it would be difficult to provide concrete evidence that properties with the benefit of the covenant would attract a higher or lower price than a nearby property that did not have such benefit. Also, they had agreed that, in a strong market, the values would be less likely to be affected.
18. In summary Mr Dawson said, in adopting the approach used in Re: Bass Ltd's Application (1973) 26 P&CR 156, that the proposed use was reasonable and the covenant impeded that user. No practical benefits are secured to the objectors but, if the Tribunal finds otherwise, it was submitted that they are neither of substantial value or advantage. Impeding the use would be contrary to the public interest, as there was a demonstrable demand and need for childcare facilities within the area. Money would be adequate compensation for any minor loss that it might be found that the objectors would suffer.
19. Finally, Mr Dawson said, any 'thin end of the wedge' argument that was advanced should not be given any weight. This was the only property affected by the covenant, and there was no chance, therefore, that any precedent would be set.
20. Mr Dawson called two expert witnesses, R T Morrow MSc MIOA of Noise and Vibration Associates who spoke to his company's report on noise issues, and James Carver MRICS FNAEA who gave evidence as to potential effect on values of the objectors' properties. He also called Mrs Boulton as a witness of fact. NVA had carried out noise measurements both at the application land, in order to assess existing noise levels and at the William Street nursery to determine noise levels from representative groups of nursery children in February 2003. The background noise level within the gardens of the application land was measured at 54 dB(A) whereas the expected equivalent continuous noise levels due to external play of typical groups of children was in the range 34 – 39 dB(A). The conclusion was, therefore, that any noise from the children was likely to be drowned out by the background noise of the traffic and it was not considered that noise due to vehicles bringing and collecting children would be significant. This was because the majority of dropping off/collection would take place in the early mornings and evenings when rush hour traffic on the adjacent roads was at its loudest.
21. Mr Carver is a chartered surveyor, and a director of Nick and Gordon Carter Residential, estate agents of Darlington. He had been asked to comment upon the objectors' valuer's opinion that their properties could see a reduction in value of up to 15% if a children's' day care nursery were to open on the application land. He said that, recalling his experience over 19 years of the valuation and sale of residential property in the Darlington area, he did not believe, and had no evidence, to support such a conclusion. In his view, values of residential property could be adversely affected by certain types of adjacent commercial use, such as public houses or shops with extended opening hours. However, the presence of a day nursery could not be considered an anti-social user and, if anything, such a use may well enhance rather than reduce values of neighbouring properties. In response to a question from me, Mr Carver said that, in a weak market, the proximity of such a facility might be used as a bargaining tool to talk down the price. Similarly, where there were two identical properties, one with an adjacent nursery, and one without, the latter might be marginally more attractive to the market. Any such difference was, however, considered to be immaterial.
22. Mrs Boulton produced a comprehensive witness statement setting the background to the purchase of the application land, detailing the proposals and giving information relating to their existing William House facility for 84 children. She said they purchased the Gate House speculatively with the intention of opening their second children's' day care nursery when the property was marketed following the closure of the residential care home. That use was, it appeared, no longer viable and the building was ideal for their proposals. Following their application for planning permission, a full planning committee site visit was undertaken, and many of the members' questions were answered. It was only when Mr McDougall raised the issue at the council's planning committee meeting, held in public at the Town Hall, that she and her husband became aware of the existence of the restrictive covenant. Their solicitor had not advised them of it when they purchased the property, and, having already carried out extensive refurbishment, the news came, she said, as a considerable shock.
23. The need to make an application to the Lands Tribunal for the discharge or modification of the covenant, and the delays caused by this, meant that the property has had to remain unoccupied and unused. As a result of vandalism it had been necessary to board up the ground floor windows but even so, unauthorised entry had been made and an arsonist had recently caused considerable damage to the first floor. Mrs Boulton said that she and her husband had done their best to maintain the external appearance of the property, and the gardens have been regularly tended. Everything was in place for the nursery and she said that she had the full support of the Darlington Early Years Development and Childcare Partnership.
24. In the applicants' view, the proposed facility for which market research indicates there to be a good demand, will do nothing to devalue the objectors' properties. Conversely, it will provide a safe and stimulating environment for under eights in what will be a focal point for the community. It will provide employment in a building that, Mrs Boulton said, cries out to be given a new lease of life.
25. Finally, Mrs Boulton said that whereas the residential home had operated 365 days a year, the proposed facility would be operating Monday to Saturday only, with no bank holidays.

Case for the objectors

26. For the objectors, Mr Stuart McDougall submitted that, whilst it was not being contended that the proposed use of the application land was not a reasonable use of it, in impeding that use the restriction secured to the objectors practical benefits of substantial value and advantage. The covenant is not contrary to the public interest, he said, and money would not be adequate compensation for the substantial interference there would be to the quiet enjoyment of their homes. Discharge or modification of the covenant would cause injury to the objectors in that:

a) The objector's homes were purchased in the knowledge that they were located in a small, quiet cul-de-sac with little traffic and noise.

b) The opening of a children's' day care nursery at the head of the cul-de-sac from Monday to Saturday would increase the number of car journeys along it by approximately 900 a week.

c) There is no parking in the road.

d) The resultant traffic noise and congestion will create a substantial interference with the daily lives of the residents of the cul-de-sac and adjacent properties, causing a diminution in value of those properties by, as Mr Frietag had said, up to 15%.

e) There have been no changes to the character of the application land or the neighbourhood, and there are no other circumstances that could render the restriction obsolete. The proposed use would, on the other hand, transform the character of the area to the detriment of the beneficiaries of the restriction.

27. Mr McDougall stressed that the key concern of the objectors was the increased level of traffic in the cul-de-sac, particularly early in the morning and in the late afternoon. The potential for congestion, the noise of cars turning and doors slamming together with safety implications meant the impact of the proposed use would be contrary to the reasons for which the covenant had been applied. In that regard, he referred to a letter that had been received from Mr Norman Bainbridge confirming that the covenant had been imposed by his company, Leslie & Co (Northern) Ltd, for the purposes of preventing future commercial development that could cause detriment to the residents of Gate House Close.
28. There was no comparison between the proposed use and that which was permitted under the earlier modification, Mr McDougall said, although, whilst accepting that the enlargement permitted by the 1998 planning permission would not have breached the restriction, the more intensified use would, in his view, have changed the character of the neighbourhood. In the objectors' view, the application land was also in some ways unsuitable for the proposed use as there would be inadequate on-site parking for the anticipated staffing levels, and there was therefore a risk of people having to park in the street. Finally, Mr McDougall reiterated that the objections to the application were not motivated by the prospect of financial gain – all the residents wanted was to continue to enjoy their quiet location which the covenant had served to protect over the past 27 years.
29. Mr Peter Frietag BSc Dip BA FNAEA, a local estate agent and valuer, had been asked by the objectors group to provide his opinion as to the likely effect the proposed use of the application land would have on values of 5 of the 6 properties in Gate House close and the Barmpton Lane spur that had the benefit of the restriction. In his letters to the individual objectors, he advised them that, in his opinion, value would be diminished by between 10 and 15 per cent (the houses in Gate House Close being less affected, as they did not have a direct frontage onto the cul-de-sac). He attended a meeting with Mr Carver, the applicants' expert valuer, and produced a joint statement of agreed facts. However, whilst he attended my inspection of the application land as the objectors' representative, he did not attend the hearing, and was not called.
30. The joint statement acknowledged that any potential noise from children playing within the grounds of the application land, or that caused by parents dropping off or collecting their children would not have any detrimental affect on values. However, Mr McDougall said that the objectors did not agree the latter aspect. The joint statement also acknowledged that unless an in/out driveway was constructed, it was likely that the majority of parents would drop their children off in the street.

Conclusions

31. I deal firstly with the application for discharge of the covenant under grounds (a) and (c). There is no evidence that suggests to me that the character of the neighbourhood has changed sufficiently to render the restriction obsolete. Whilst undoubtedly traffic noise in the vicinity will have increased significantly in the 27 years since the covenant was imposed, this is a fact of life which applies to virtually every residential property in the land that is close to a public highway. The Land Registry plan attached to the 1977 conveyance shows the road layout to be as it is now, and therefore the Barmpton Lane spur to which the application land, and the Barmpton Lane objectors' properties front, was a cul-de-sac when the covenant was applied. It still is, and whilst background traffic noise from the through section of Barmpton Lane and Whinfield Road is very noticeable, the Barmpton Lane spur has no through traffic and little pedestrian activity.
32. It was accepted by the objectors that the use of the application land as a residential care home for the elderly, as permitted by the modification granted in 1987, had not changed the nature or character of the area in terms of increased traffic flows or noise, but it was submitted by Mr Dawson for the applicants that the change of use from residential to commercial had. I do not subscribe to this view. There must, it seems to me, be many situations where a commercial or quasi-commercial use operating in an otherwise predominantly residential area does not inherently change its character. Each case must be looked at on its own merits, and in this instance, I agree with the objectors.
33. I note that the objectors think that the intensified use as a residential care home, permitted in 1998, would probably have resulted in the character of the area being changed as traffic levels would be significantly increased if the number of elderly residents (and thus also the staff numbers) rose. I return to this point, and the question of the impact of other uses that may be permitted under the covenant, when considering ground (aa) below.
34. As to ground (c), and the applicants' suggestion that current ambient levels of traffic noise are now such that any additional disturbance from the proposed use will not cause injury to the objectors, I do not agree. Whilst I note the objectors' acknowledgement that any increased noise caused by children playing on the application land would not be sufficient to devalue their properties, and that, according to Mr Morrow, such noise would be substantially less, in terms of dB(A) than that generated by traffic, I find the objectors concerns over increased traffic levels persuasive. In my judgment, whilst the residents of Gate House Close would not be affected (it being unlikely in my view that parents would park there to drop off or collect children), those whose properties front the cul-de-sac most certainly would.
35. I am surprised that, bearing in mind there will be an estimated additional 900 to 1,000 vehicle movements per week, and the cul-de-sac does not have a hammerhead or turning circle in front of the Gate House, the planning authority did not insist upon an in/out driveway facility within the application land. Although, as the Highways Engineer said when the application was being considered, the head of the cul-de-sac is quite wide and vehicles can "turn around with ease", I suspect that the situation could become somewhat chaotic when 3 or 4 vehicles arrive at the same time. The likely result, in my view, is that when the area directly in front of the application land is congested, parents would park further up the cul-de-sac (particularly in front of numbers 6, 8 and 10 Barmpton Lane), and then turn at the junction of Harley Grove.
36. Even if an in/out arrangement were provided (which the applicants confirmed they were prepared to do), I do foresee parking and turning problems on the highway at the busiest times and, in any event, the additional traffic movements (parking and turning aside) will make a significant difference to the quiet enjoyment of the Barmpton Lane objectors properties. For the above reasons, the application for discharge on grounds (a) and (c) fail.
37. I now turn to the application for modification on ground (aa). The first question to be answered is: does the restriction secure to the objectors practical benefits of substantial value or advantage, and if so, would those benefits be lost if the restriction were modified? Mr Dawson submitted that, in considering the question, it was necessary to have in mind what the situation would be, particularly in terms of extra traffic generation, if either the 1998 planning permission had been implemented, or more intensive residential use (allowed under the restriction) occurred.
38. This very point recently arose in Re: Fairclough Homes Ltd (2004) LT ref: LP/30/2001 (unreported). That was an application by a developer to construct 20 flats on the site of a single residential property, in an area that predominated with detached houses on large plots. The President, George Bartlett QC, said, at para 29:

"29. In assessing whether in preventing these adverse effects [quiet enjoyment of objectors' property] from arising, the restriction secures practical benefits of substantial value or advantage it is clearly necessary to carry out some sort of comparison with the situation as it would exist in the absence of the modifications that are sought….. How the character of the area and the amenities would be affected by the modification of the restriction is not in my view to be judged by envisaging the worst that could be done without breaching the restriction and comparing it with what the proposed modification is intended to permit…

30. In such a case as this, the provision, it seems to me, operates in this way. By preventing development that would have an adverse effect on the persons entitled to its benefit the restriction may be said to secure practical benefits to them. But if other development having adverse effects could be carried out without breaching the covenant, these practical benefits may not be of substantial value or advantage. Whether they are of substantial value or advantage is likely to depend upon the degree probability of such other development being carried out and how bad, in comparison to the applicant's scheme, the effects of that development would be."

39. In this case, there is a probability that, if the residential care home for the elderly had continued to be viable, it could have increased in size, and there might have been 17 or more full-time residents and associated staff and visitors. Alternatively, although no evidence was produced in respect of what else might be done with the Gate House without breaching the restriction, I suspect that conversion of the existing house to multi-occupation, or its replacement with a development of flats would be feasible, and could well occur (subject to planning) if this application fails. However, I think the proposed children's day nursery use would be much worse in terms of disturbance to the quiet enjoyment that the majority of those with the benefit of the restriction currently enjoy. In my view, even if there were to be a development of 20 flats on the application land, with associated traffic generation and general disturbance, that would never result in the intensive traffic problems which will undoubtedly occur under the applicants proposals, those problems being particularly focused early in the morning. The practical benefits in preventing the use are, therefore, of substantial advantage to the objectors. As I have already said, I do think that the character of the area would be adversely affected by the proposed use and for the reasons given, despite the fact that it is agreed the use is reasonable, and I accept the applicants' evidence that there is a need for such facilities, I conclude that the applicants have not made out their case, and the application is therefore refused.
40. As it transpires, I do not need to deal with the question of whether the value of the objectors' properties would be adversely affected if the application for discharge or modification had succeeded. However, I would say that I found neither the evidence of Mr Carver nor the contribution made by Mr Frietag prior to the hearing, of much assistance. In my judgment, however, in terms of the reality of the marketplace, I think that there would be no effect upon 1 and 3 Gate House Close as they would not suffer from the traffic problems, and it has been agreed that the noise of children playing in the grounds of the Gate House would be of little consequence. As to the Barmpton Lane houses, I think any diminution in value would be marginal, but I do accept the suggestion that, in a weak market, houses in close proximity to a children's nursery would be seen as less attractive than similar ones not so affected.
41. A letter detailing the procedure for submissions on costs accompanies this decision. The decision will become final when, and not before, the issue of costs has been determined..

(Dated) 4 August 2004

Signed P R Francis FRICS

ADDENDUM

42. I have received submissions on costs from the parties. The applicants consider it appropriate to make no order as to costs. Whilst they acknowledged that the objectors were justified in pursuing their case, they pointed out that a number of their allegations were not accepted by the Tribunal. The additional costs incurred by the applicants in responding to them, it was suggested, made it reasonable in all the circumstances to make no award.
43. The objectors said that the application had been dismissed by the Tribunal and that all the applicants' arguments had been rejected. The applicants had sought the modification or discharge in order to further their business interests, and it would not be appropriate, the objectors said, for them to suffer financially, particularly as their objections had been upheld.
44. It is a fact that not all of the objectors grounds were substantiated, and whilst their objection ultimately proved successful, I acknowledge that the applicants were possibly put to additional expense in fighting particular aspects of the case. In all the circumstances, I consider that that an award of a specific sum towards the objectors costs would be fair and equitable. I order that the applicants shall pay the sum of £1,500 towards the objectors' costs, any additional costs incurred by the objectors to be their responsibility.

DATED 20 October 2004

(Signed) P R Francis FRICS