UPPER TRIBUNAL (LANDS CHAMBER)	
	
UT Neutral citation number: [2010] UKUT 206 (LC)
LT Case Number: LP/25/2009

	TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – modification – proposed development of a detached house adjoining boundary of objector’s property – whether practical benefits of substantial value or advantage – application granted on ground (aa) – compensation awarded of £6,875 – Law of Property Act 1925 s84(1)(aa) and (c)

	IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE 
	LAW OF PROPERTY ACT 1925

	B Y	
		
	KIRSTIE JAYNE POTTIER

	and

	NICOLE ELEANOR POTTIER

	Re:	Land adjacent to 70 High Street
	Winterbourne
	South Gloucestershire
	BS36 1JQ

	Before: A J Trott FRICS

	Sitting at the Bristol Employment Tribunal, 
	The Crescent Centre, Temple Back, Bristol, BS1 6EZ
	on 10-11 June 2010

Malcolm Warner, instructed by Gregg Latchams LLP, for the applicants
John Virgo, instructed by Henriques Griffiths, solicitors, for the objector

The following cases are referred to in this decision:

Shephard v Turner (2006) 2 P&CR 28
Winter v Traditional & Contemporary Contracts Limited [2007] EWCA Civ 1088

The following cases were referred to in argument:

Re Bass’s Application (1973) 26 P&CR 156
Re Chapman’s Application (1980) 42 P&CR 114
Stockport MBC v Alwayah Developments (1983) 52 P&CR 278
Bennett’s and Tamarlin’s Application (1987) 54 P&CR 378

	DECISION
Introduction
1.	The applicants, Ms Kirstie Pottier and Miss Nicole Pottier, want to build a detached house on land that they own immediately south west of 70 High Street, Winterbourne, South Gloucestershire, BS36 1JQ.  Detailed planning permission for the proposed development was granted, subject to conditions, on 20 March 2009.  They are prevented from implementing the planning permission by a restrictive covenant contained in a conveyance of the application land (and other land) dated 9 September 1959 which states:
“2.	The Purchaser so as to bind his successor in title hereby covenants with the Vendor in the manner following:-
(i)	that he will not erect or cause to be erected on the said property more than one bungalow or dwellinghouse such bungalow or dwellinghouse to be in conformity with the plans and specifications which have already been approved by the Vendor and that such bungalow or dwellinghouse when erected shall be used only as a private dwellinghouse and shall not construct or open any other window which would overlook the garden of the Vendor’s adjoining property.
(ii)	…”
2.	The applicants made an application under section 84 of the Law of Property Act 1925 on 2 September 2009 for the modification of this restriction to allow the construction of the house for which planning permission has been obtained.  They rely upon grounds 84(1)(aa) and (c).  The person entitled to the benefit of the restriction is Mrs Norma Chandler Paterson who is the owner occupier of the Old Coach House, High Street, Winterbourne, the property that adjoins the application land to the south west.  Mrs Chandler Paterson objected to the application on the grounds that the restriction secures to her practical benefits of substantial value and advantage.
3.	Mr Malcolm Warner of counsel appeared for the applicants and called Nicole Eleanor Pottier as a witness of fact and Timothy John Maggs MRICS, of Maggs & Allen, Chartered Surveyors of Bristol, and Ronald William Shirley RIBA, of Ronald Shirley Chartered Architects, of Wotton under Edge, Gloucestershire, as expert valuation and planning witnesses respectively.  Mr John Virgo of counsel appeared for the objector and called Norma Chandler Paterson as a witness of fact and Stewart Waters MRICS FAAV, of David James & Partners LLP, Chartered Surveyors, as an expert valuation witness.
4.	I made an accompanied inspection of the application land on 11 June 2010.  I also viewed the application land from the garden of the Old Coach House.
Facts
5.	The application land is located on the west side of Winterbourne High Street some 10 km to the north east of Bristol and approximately 2½ km from junction 19 of the M4 motorway.  It is situated opposite the Taj Brasserie Indian restaurant which was formerly a public house.  There is a local shopping centre approximately ½ km to the south and the Winterbourne International Academy is within walking distance.  The application land is rectangular in shape measuring approximately 250 m2.  To the north east is 70 High Street, a detached house, while to the south west is the Old Coach House.  To the west of the application land are pastoral meadows.  It is enclosed by a stone wall along its eastern boundary with 1.8m close boarded timber fences to the north and south.
6.	The Old Coach House building lies approximately 25m from the boundary of the application land measured along the High Street frontage of its garden and approximately 22m measured along the western (meadow) frontage.  The Old Coach House is located at right angles to the High Street with its gable end fronting the road and the main habitable rooms facing the application land to the north.  Between the two is the garden of the Old Coach House which is currently unkempt and overgrown.  Along the boundary between the two properties are a number of mature cypress trees, approximately 8-10 metres tall.  These would be within two metres of the south western elevation of the proposed dwelling.
7.	The proposed dwelling is a two storey detached house comprising a lounge, kitchen-diner, hall and WC at ground floor level with two double bedrooms (one en suite) and a separate bathroom at first floor level.  The exterior of the building would be colour rendered with stone banding and interlocking concrete roof tiles.  There would be no windows or doors in the south western elevation of the dwelling that faces the Old Coach House.  There would be no garage but instead there would be a parking area for two cars in front of the house facing the Old Coach House.  There would also be a small rear garden. 
8.	The land subject to the restrictive covenant was originally developed by a single detached house known as 70 High Street Winterbourne (Orchard House).  In 1998 the applicants’ parents, David and Jane Pottier, purchased No.70.  In November 2004 they obtained planning permission to develop another house, now known as 72 High Street, at the northern end of the plot.  In July 2005 they applied to the Tribunal to modify the restrictive covenant to enable this planning permission to be implemented.  Mrs Norma Chandler Paterson failed to object to this application within the time period set out in the publicity notice and on 1 February 2006 the Registrar refused her application to extend the time for lodging an objection.  This meant that the application was determined without a hearing and on 11 May 2006 the President signed an order that the restriction be modified under ground (aa) so as to permit the erection of a detached dwelling in accordance with the planning permission granted in November 2004.  Mr and Mrs Pottier then transferred the plot of No.72 to the applicants who developed it and sold it when they moved to London in 2007.
9.	Although Mrs Chandler Paterson did not object to the July 2005 section 84 application, the parties nevertheless negotiated a settlement regarding the modification of the restrictive covenant which resulted in a payment to her of £11,000 by Mr and Mrs Pottier.  A further term of the negotiated settlement, involving an overage payment to Mrs Chandler Paterson in the event that the (2009) application land were to be developed in future, was apparently not completed.
10.	Having obtained planning permission for the development of the application land in March 2009, Mr Pottier transferred it to the applicants in May 2009.  He and Mrs Pottier then sold No.70 and moved away from Winterbourne.
The case for the applicants
11.	Miss Pottier said that there would be no windows in the proposed dwelling that would overlook the Old Coach House.  The two properties would be separated by a close boarded timber fence and the new development would be masked from the Old Coach House by the existing tree screen.  The land between those trees and the objector’s house was untended scrub land which, she said, had been described by planning officers as being of no amenity value.  The restriction therefore served no useful purpose in protecting the objector’s amenity but impeded the reasonable user of the application land, namely its residential development for which planning permission had been obtained. 
12.	Mr Shirley considered the impact of the proposed development upon the amenities of, and outlook from, the Old Coach House.  He also considered the effect of the construction of the proposed dwelling upon the existing trees along the boundary.  He said that the views from the Old Coach House were limited by the existing tree barrier and that there would be no windows in the proposed dwelling facing the objector’s property.  The distance from the Old Coach House to the nearest part of the new dwelling would be approximately 25-28 metres which Mr Shirley considered would still provide an adequate barrier.  He thought that there would be little or no nuisance from cars entering and leaving the site.  Vehicular access to the proposed dwelling was at the north of the site, away from the Old Coach House, and the High Street was already a busy thoroughfare.
13.	Mr Shirley said that the trees along the boundary between the Old Coach House and the application land were straggly specimens, one of which was dead, and were precisely the sort of trees that should not be protected.  There was already a close boarded fence between the properties which acted as a screen and this could be supplemented by new foliage such as a hedge with specimen trees.  He said that the Monterey Cypress located at the north of the garden of the Old Coach House overhung the application land by up to 2.5m at high level.  He was concerned at the extent of this overhang which meant that the tree would conflict with the roof line of the proposed dwelling and could cause problems with gutters and the structural fabric of the new building.  There would need to be modest and controlled pruning to avoid this.  In his expert report Mr Shirley referred to the need to cut back a number of trees and subject them to “significant tree surgery”, but during cross-examination he restricted such comments to the Monterey Cypress.  
14.	His main concern was with the root protection area (RPA) of the trees which would extend under the proposed house and potentially conflict with its foundations.  To avoid this it would be necessary to use piled foundations located away from the major roots, although he said that it was not possible to guarantee that this could be done successfully.  He considered that special foundations would still be required even if all the trees were to be removed.  If the trees were felled then the outlook from the Old Coach House would be changed for the better since this would let in more light to Mrs Chandler Paterson’s garden. 
15.	Mr Maggs was instructed to advise about the potential diminution in the value of the Old Coach House if the application was successful and the new house was built.  He had not inspected the Old Coach House internally but relied upon the description provided in Mr Waters’ report which said that:
“The Old Coach House is in a poor condition with little evidence of maintenance works being carried out in recent years.  The garden is overgrown.”
Mr Maggs said that the property “presented externally in tired condition”.  He agreed with Mr Waters that the open market value of the Old Coach House was £275,000 in its unimproved state.
16.	Mr Maggs did not consider that the removal of the restriction and the construction of the new dwelling would diminish the value of the Old Coach House.  This was because the new house would not overlook it and would not reduce the amount of sunlight or daylight that it received; the Old Coach House would continue to enjoy views over open fields to the west; the existing tree screen in the objector’s garden would virtually hide the new property; and the new house would be some 26 metres from the rear elevation of the Old Coach House.  A prospective purchaser of the Old Coach House would consider the impact of the new house to be minimal and would not feel it necessary to reduce the price.  Mr Maggs therefore concluded that there would not be any detrimental impact upon its value.
17.	In cross-examination it was pointed out to Mr Maggs that he had described his instructions as being to prepare advice concerning the potential diminution in the value of the Old Coach House following the removal of the restrictive covenant.  He accepted that the application was for modification of the restriction but he said that this made no difference to his conclusions.
18.	He thought that Mr Waters’ figure of 15% for the diminution in the value of the Old Coach House if the application were allowed was excessive, and he could not think of any way in which Mr Waters could have arrived at such a high percentage based upon the evidence that he had seen.  Mr Maggs did not take into account the suggestion that Mrs Chandler Paterson had paid “over the odds” for the Old Coach House when she and her husband bought it in 1967 to reflect the value of the benefits of the restriction to the objector.  Nor had he considered the agreement reached in respect of the earlier (2005) application to modify the restriction in respect of land to the north of Orchard House under which the applicant agreed to pay £11,000 to the objector.  He said that this agreement did not affect the basis of his valuation.
19.	Mr Maggs referred to, and relied upon, a report dated 11 December 2008 written by Mr Chris Wright, a principal consultant of Silverback Arboricultural Consultancy.  This report was apparently produced in response to the refusal of a previous planning application to develop the application land.  One of the grounds of refusal was that:
“The proposed development lies within the Root Protection Area of those trees adjacent to the application site and fails to provide any details regarding the protection of those trees.”
20.	  Mr Wright’s instructions were “to provide an arboricultural constraints plan and method statements (sic) in relation to a proposed development in the proximity of trees situated at Orchard House [No.70], High Street, Winterbourne.”  The report included details of tree protection measures within the RPA.  The planning permission granted on 20 March 2009 was subject to a condition that the development should be constructed in accordance with Mr Wright’s constraints plan and method statement.  The planning officer’s report on the 2009 planning application said that:
“5.14	  To overcome any adverse impact to the tree adjacent to the application site, the applicant has submitted an Arboricultural Impact Assessment.  The Council’s Tree Officer has assessed this document and concluded that the proposed construction is possible and the longevity of the trees would be maintained.  In view of this it is considered that the previous refusal reason has been adequately addressed.”
The case for the objector
21.	Mrs Chandler Paterson explained that she and her husband had bought the Old Coach House in 1967 because of its location, privacy and open feel.  They were aware of the restriction at the time of purchase and had paid a higher price as a result.  She considered that the current application to modify the restriction would have a greater effect upon the value of the Old Coach House than the previous application to the north (the site of what is now 72 High Street).  She thought that the conifers adjoining the application land would probably be killed by the construction of the new house given their proximity to the boundary.  The proposed development would devalue her property and would adversely affect her privacy, peace and quiet and the open character of the Old Coach House.  The new house would probably be occupied by a young family with more than one car and there would inevitably be an increase in noise.  She explained that although she was not a gardener, she spent a lot of time in her garden (in the area that she described as the “glade in the middle of the forest”).  She felt that her quiet enjoyment of this facility would be lost if the application were allowed. 
22.	Mr Waters described the Old Coach House as a five bedroom detached period property in poor condition with off street parking to the south and an unkempt private garden to the north.  The main outlook from the property was to the north, towards the application land.  Mr Waters said that the distance of the Old Coach House from the application land was 22 metres.  If the garden was well maintained and the conifers along the boundary were removed then the outlook from the Old Coach House would be significantly affected by the proposed development.  He valued the Old Coach House in its existing condition at £275,000 and said that if it was improved and modernised it would be worth £350,000.
23.	Mr Waters considered that the construction of the new dwelling would adversely affect the value of the Old Coach House due to its proximity and the significant potential impact upon the privacy of the objector’s garden.  He quantified the diminution in the value of the Old Coach House at 15% which equated to £41,250 in terms of its existing value or £52,500 in terms of its value when improved and modernised. 
24.	In cross-examination Mr Waters said that it was reasonable to assume that the trees along the boundary of the Old Coach House and the application land were nearing the end of their life which he estimated to be between 40-60 years.  In a subsequent answer he amended this estimate to 60-80 years.  In giving such estimates he was relying upon his experience as a rural surveyor.  He had not read Mr Wright’s arboricultural report at the time he prepared his expert report although he was aware of condition 4 of the 2009 planning permission which referred to it.  He assumed that the tree report had satisfied the previous planning concerns.  In his expert report Mr Waters said:
“It is possible that the construction of the new dwelling will damage the root structure of these trees and ultimately cause these trees to die.”
When asked about this statement in the context of the planning officer’s report in which the council’s tree officer was recorded as concluding that the longevity of the trees would be maintained, Mr Waters said that he had only said it was possible that the trees might ultimately die and denied that it was necessarily his view that they would.  He also denied putting himself forward as an arboricultural expert.
25.	 Mr Waters went on to say that he could not be sure when he had first seen the planning officer’s report, although he thought that he might have seen it before writing his expert report.  When asked why, if he had not seen it before submitting his report, he had not updated that report subsequently, Mr Waters said that he had not been asked to and had not chosen to do so.  He said that “I broke my duty to the court…not through malice or trying to mislead.  [I] failed to update [my report]”.
26.	Mr Waters said that he had included a valuation of the Old Coach House when improved and modernised to demonstrate its potential and what it might be worth.
27.	In reaching a figure of 15% for the diminution in the value of the Old Coach House if the restriction were modified, Mr Waters said that he had relied upon negotiations that he had had with National Grid plc about the permanent depreciation in the value of residential properties caused by the grant of easements for electricity pylons.  He had dealt with several such claims in the last few years.  These were in respect of pylons (not poles) carrying 133kv cables.  At a property in Wick he had agreed a settlement of 10% as the diminution in the value of a house where a pylon was constructed within 15m of its back door.  Elsewhere he had agreed a 2% reduction in value where the pylon was 180m from the property.  He had no comparables as high as 15%, but said, in answer to questions from the Tribunal, that the construction of a house some 25m from the Old Coach House would have “a much greater impact upon the property than a pylon”.
28.	He estimated that the margin of error on his figure of 15% was 10%, giving a range of 13.5% to 16.5%, but he accepted in cross-examination that a reasonably competent surveyor could come to the view, as Mr Maggs had done, that the figure should be 0%.  Mr Waters said that were he to be asked to sell the Old Coach House in the event that the restriction was modified, he would hope to get £275,000 but would expect to see a reduction, although he could not say by how much.  In cross-examination it was put to him that Mr Maggs was right to distinguish between what the perception of the new house would be before construction and what its effect would actually be once it was built.  He was asked about the actual effect of the development and Mr Waters confirmed that in his opinion this would lead to a diminution in value of 15%.  Mr Warner pointed out that this meant, when applied to the existing value of £275,000, a reduction of £41,250.  Asked whether he would advise the vendor of the Old Coach House to accept such a reduction if the restriction were modified Mr Waters replied that he would not.    
Conclusions
29.	It is not disputed that the proposed user of the application land is reasonable nor that the restriction would, unless modified, impede that user.
30.	The practical benefits of the restriction to Mrs Chandler Paterson are her ability to protect the amenity, privacy and tranquillity of the Old Coach House by preventing the development of a detached dwelling immediately to the rear of her garden.  Specifically, as argued by Mrs Chandler Paterson, the restriction will protect the outlook from her property, prevent overlooking from the new house and avoid noise and disturbance from its occupiers.
31.	In my opinion none of these practical benefits are of substantial advantage to the objector.  The outlook from the Old Coach House is dominated by dense foliage (shrubs and trees) close to the dwelling.  The northern elevation of the Old Coach House has a total of eight windows and three glazed doors.  Only one of the four upstairs windows and two of the downstairs windows (as well as a door) have views down the length of the garden.  The windows and doors at the eastern end of this elevation are totally obscured by the adjoining vegetation which is so close as to touch the house.
32.	The view from within the garden of the Old Coach House towards the application land is screened by the existing trees, including the mature Monterey Cypress at the far northern tip of the garden.  Much of the hearing was concerned with whether the proposed development would damage the root system of those trees or would require that they undergo significant lopping.
33.	  The applicants rely upon the arboriculturalist report prepared by Mr Wright in December 2008, although he was not called as an expert witness.  Mr Maggs, when considering this report, said that it stated that the construction of the new house could be completed without damage to the objector’s trees.  The report does not say this and I accept Mr Virgo’s observation that Mr Maggs has overstated the position.  Mr Virgo submitted that the thrust of the report was that the trees, especially their roots, were vulnerable to the proposed development and that trench foundations would be unsuitable.  Piled foundations would be necessary to minimise any root damage.  This was a mitigation strategy but there could be no guarantee of success.  Mr Maggs said that this was not a fair summary and that it presented a biased view.  I do not consider that an expert, acting independently, objectively and knowledgeably could reasonably make such a statement in the light of the contents of Mr Wright’s report.  Mr Maggs does not appear to have read the report carefully; indeed when challenged by Mr Virgo to show where in the report it said that the development would damage the trees, Mr Maggs replied “I’d have to read it all”.
34.	Mr Shirley gave a more balanced opinion and said that, provided the piled foundations avoided the major roots, the development should not affect the trees, but there was no guarantee that this could be done successfully.
35.	Mr Waters is not an arboricultural expert and admitted as much and yet he opined freely about the likely lifespan of the trees in the objector’s garden.  Such evidence was contradictory in terms of the estimated life of the trees, ranging from 40-60 years at one point to 60-80 years at another.  Mr Waters acknowledged that he had not updated his report in the light of the planning officer’s report and had thereby broken his duty to the Tribunal.  
36.	I have had regard to Mr Shirley’s evidence, the arboricultural report of Mr Wright, the planning officer’s report and my own site inspection when considering this issue but, for the reasons I give in paragraph 43 below, I place no weight upon the opinions of either Mr Maggs or Mr Waters.  I conclude that, although the plan and method statement proposed by Mr Wright (and which is now out of date) will, if implemented, minimise the chances that the proposed development will injure the objector’s trees, there remains a risk that they may be damaged.  Mr Virgo also submitted that given the size of the trees, their proximity to the boundary and their location to the south of the application land, there was likely to be pressure from the new occupiers for the objector to remove the trees, if necessary by means of a complaint under Part 8 of the Anti-social Behaviour Act 2003.  If the tree screen survives then the new house would, to all intents and purposes, be hidden behind it.  (Mrs Chandler Paterson said that she would “see it a bit” under these circumstances.)  If the trees were to die, either because of damage to the roots or through old age, or were to be removed as a result of a complaint made under the 2003 Act, then the new house would be visible from the garden of the Old Coach House, although not from the majority of windows within the house itself. 
37.	The proposed dwelling would extend along approximately half of the boundary between the two properties.  It would not overlook the Old Coach House since there are to be no windows in the elevation that faces it.  Its appearance in this respect would be similar to the current view of Orchard House located some 14m further north.  I am not persuaded that there would be any perceptible increase in vehicular noise due to the use of the two proposed car parking spaces.  The High Street is already a busy road any additional noise from these spaces is unlikely to be noticed.  The new building will not overshadow the Old Coach House or reduce its sunlight since it is located to the north.  Mrs Chandler Paterson also expressed concern about the noise and disturbance that would be caused by the occupiers of the proposed development and the possibility of nuisance caused by external lights.  I do not consider that the former would be a significant problem since the majority of the new dwelling’s garden would be located to the north, away from the Old Coach House and screened from it by the new building.  The effect of the latter, even if such lights were installed, would be negligible.
38.	The ability of the objector to prevent the temporary disturbance caused by building works does not, in my opinion, constitute a practical benefit of substantial advantage.  In Shephard v Turner (2006) 2 P&CR 28  Carnwath LJ said at 629 [58] that:
“The primary consideration, therefore, is the value of the covenant in providing protection from the effects of the ultimate use, rather than from the short-term disturbance which is inherent in any ordinary construction project.  There may, however, be something in the form of the particular covenant, or in the facts of the particular case, which justifies giving special weight to this factor.”
There is nothing in the subject restriction, nor in the facts of the case, that would justify any special weight being given to this factor in this application.
39.	I do not consider that the objector’s enjoyment of her property would be substantially affected by the construction of the proposed dwelling, even if some or all of the present tree screen along the boundary was eventually to be removed.  By impeding the proposed user the objector does not, in my opinion, secure practical benefits which are of substantial advantage.
40.	It is also necessary to consider whether those practical benefits are of substantial value.  The valuation experts agree that the current value of the Old Coach House is £275,000.  Mr Maggs says that this value would not be affected if the restriction is modified whereas Mr Waters says it would be diminished by 15%.  Mr Waters also refers to the negotiations between the objector and Mr David Pottier regarding the previous application to modify the restriction in 2005.  This resulted in a payment of £11,000 to Mrs Chandler Paterson.  It was also agreed at that time, although apparently not in a contract, that Mr Pottier would pay Mrs Chandler Paterson 70% of the increased value of the application land in the event that planning permission was implemented for its development within a 30 year period.  Mr Waters calculates that were such an agreement to be honoured the sum of £49,000 would be payable as overage were the application to be allowed.  In his report he goes on to say:
“Alternatively consideration has been given to the impact of the proposed development upon the amenity of the Old Coach House.” (My emphasis)
It would appear that Mr Waters’ approach was firstly to consider the previous agreement and then to verify its outcome by reference to the requirements of section 84.  This suggests to me that Mr Waters was influenced in his valuation by the knowledge of the agreement previously reached between the objector and the applicants’ predecessor in title.  Mr Waters said that he did not believe this to be the case but, in my opinion, this is the only reasonable explanation of why Mr Waters adopted a figure of 15% for the diminution in value of the objector’s property.  The derivation of this percentage from evidence of easements negotiated in respect of pylons was described by Mr Warner as verging on the bizarre.  I agree.  Mr Waters, when asked by the Tribunal whether he believed that weight should be placed upon this evidence, insisted that it should and he said that he was comfortable with the outcome of his analysis. That analysis  showed that a 133kv pylon located less than 15m from the back of a house had diminished the value of that property by only two thirds of the amount (10%) by which he said that the value of the Old Coach House would be diminished were the application to be granted (15%) on land that is more than 50% further away (approximately 25m).  I think that is an unrealistic conclusion which has been reached to favour his client’s position and I reject it.
41.	  It appears from her objection that Mrs Chandler Paterson is aggrieved that the overage agreement that she negotiated with Mr David Pottier was not complied with.  In cross-examination she acknowledged that if the overage was paid she would have to accept the new building but she said that she would rather that it was not built.  In Winter v Traditional & Contemporary Contracts Limited [2007] EWCA Civ 1088 the Court of Appeal considered, in the light of binding authorities, the extent to which a developer’s profit may in some way be relevant to the assessment of the impact of a development upon an objector.  Carnwath LJ said:
“33.	Certain points can, in our view, be extracted from those cases taken together.  First, the basis of compensation under section 84 is the loss caused by diminution in the value or the enjoyment of the objector’s property, not the loss of his financial bargaining position. …
…
35.	These [other] cases… do not support the suggestion that there is any established practice of awarding a share of development value.  But they show that it is a possible approach in circumstances where a simple estimate of the diminution in value of the objector’s properties is unlikely to be a fair reflection of their subjective loss.” 
In my opinion, on the facts of this case, the potential profit that would accrue to the applicants were the application to be allowed should not be taken as the proper measure of any loss or disadvantage suffered by the objector in consequence of the modification of the restriction. I do not consider that the construction of the proposed dwelling would lead to a significant reduction in the value of the Old Coach House and therefore I do not accept that, by impeding the proposed user, the restriction secures to the objector practical benefits of substantial value.  This is a case where money will be an adequate compensation for the loss or disadvantage (if any) which the objector will suffer, and such compensation can fairly be calculated as a simple estimate of the diminution in the value of the Old Coach House.  	
42.	 I do not accept Mr Maggs’ view that there will be no diminution in the value of the Old Coach House.  There is likely to be a marginal effect upon the amenity of the property arising from the construction of a house close to the boundary and the associated risk that the existing tree screen will not survive in the long term.  In my opinion the diminution in the value of the objector’s property arising from the modification of the restriction would be 2.5% or £6,875 when applied to the existing value of £275,000.  I find Mr Waters’ reference to the improved value of the Old Coach House in the sum of £350,000 to be of no assistance given that he provided no information about the costs of such improvement.  Again it would appear that the purpose of such a reference was to produce a figure for the diminution in value (£52,500) that accorded more closely with his estimation of the consideration that his client would have received had the previously negotiated overage provisions come into effect.
43.	  This illustrates a serious concern that I have with the evidence of both valuation experts. Neither expert has, in my opinion, complied with the requirements of the RICS Practice Statement “Surveyors Acting as Expert Witnesses” Third Edition (effective 3 January 2009) despite having declared their compliance with it.  It is not sufficient for expert Chartered Surveyor witnesses to pay lip service to this practice statement while ignoring its substantive requirements.  Such failure to comply will inevitably mean that the expert’s evidence will carry little or no weight, as is the case here.  Neither Mr Maggs nor Mr Waters is an experienced expert witness and they may therefore not be sufficiently aware of the rigorous requirement for independence and objectivity when giving evidence. This observation applies particularly to Mr Waters whose evidence I find to be defective in three areas, namely his (admitted) failure to amend his expert report in the light of the planning officer’s report, the use of a wholly unsuitable comparable to support his valuation and his reference to the improved (but uncosted) valuation of the Old Coach House.  The last two actions were, in my opinion, done to ensure a valuation that supported the figure that might have been payable had the overage provisions agreed at the time of the previous section 84 application been put into effect.  They did not assist me in determining the current application.
44.	I find that ground (aa) has been established.  That being so it is not necessary for me to consider the alternative ground (c) upon which the applicants rely.  Having found that I have jurisdiction to modify the restrictive covenant I must consider my discretion to do so by reference to section 84(1B) of the 1925 Act.  I have taken into account the development plan and the pattern for the grant or refusal of planning permissions in the area as well as the context in which the restriction was imposed together with all other material circumstances to which my attention was drawn.  There is nothing arising out of my consideration of section 84(1B) that justifies refusing the relief sought as a matter of discretion, such relief to be by way of modification by proviso to enable the development to proceed.
The Order
45.	 The following order shall be made subject to the prior payment of the compensation referred to in paragraph 46 below:
In the conveyance dated 9 September 1959 – 
Restriction 2(i) is modified on ground (aa) by insertion of the following:
Provided that a new detached dwelling may be constructed in accordance with the planning permission granted on 20 March 2009 by South Gloucestershire Council in respect of planning application reference PT09/0200/F dated 30 January 2009 and in accordance with the accompanying plans and subject to the conditions imposed.  Reference to the said planning permission shall include any subsequent planning permission that is a renewal of that planning permission and any other matters approved in satisfaction of the conditions attached to such permission.
46.	An order modifying restriction 2(i) in accordance with the above shall be made by the Tribunal provided, within three months of the date when this decision becomes final, the applicants shall have paid compensation in the sum of £6,875 to the objector.
47.	A letter on costs accompanies this decision, which will take effect when, but not until, the question of costs is determined.  The attention of the parties is drawn to paragraph 23.4 of the Upper Tribunal (Lands Chamber) Interim Practice Directions and Guidance dated 13 May 2009.
Dated 24 June 2010

A J Trott FRICS