Vince & Anor v [2007] EWLands LP_41_2006 (14 September 2007)

LP/41/2006

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – modification - proposed conversion of dwelling to five
dwellings including extensions - whether practical benefits of substantial value or advantage
secured - application refused - 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

RUSSELL VINCE

and
VICTORIA VINCE

Re: Old Pinfold House,
16 The Green,
Barby,
Rugby,

Warwickshire,
CV23 8TS

Before: A J Trott FRICS

Sitting at Procession House, 110 New Bridge Street, London, EC4V 6JL

On 31 August 2007

Mrs Victoria Vince in person for the applicants

Joshua Shields, instructed by Stephensons Solicitors LLP, for the objector

The following cases are referred to in this decision:

Re Fairclough Homes Limited’s Application (2004) Lands Tribunal LP/30/2001 (unreported)
Shephard and Others v Turner and Another [2006] 20 EG 294
Re Williams’ Application (1987) 55 P & CR 400
Re Collins’ Application (1975) 30 P & CR 527

The following cases were also cited:

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

Re Dobbin’s Application (2006) Lands Tribunal LP/59/2004 (unreported)

Re Marcello Developments Limited’s Application (2001) Lands Tribunal LP/18/1999 and

LP/31/2000 (unreported)

DECISION

Introduction

1. This is an application by Mr Russell and Mrs Victoria Vince (the applicants) under
section 84 of the Law of Property Act 1925 (the Act) seeking the modification of restrictive
covenants affecting freehold land comprising a house known as Old Pinfold House, 16 The
Green, Barby, Rugby, Warwickshire, CV23 8TS (the application land). If successful the
application will allow the conversion of Old Pinfold House into five terraced dwellings
including two storey and first floor extensions.

2. The restrictions in question are contained in clause 3 of a conveyance of the application
land dated 4 August 1978 between Mr and Mrs B S Nangle (the vendors) and Mr and Mrs C J
Melchers (the purchasers). The purchasers covenanted:

“(i) Not to use the property hereby conveyed for any purpose other than that of a single
private dwelling-house in the occupation of one family.

(ii) Not to do or suffer to be done on the property hereby conveyed anything which
may be or grow to be a nuisance to the Vendors or their successors in title to the
adjoining property.

(iii) Not at any time to obstruct or otherwise so interfere with (or permit or suffer to be
obstructed or interfered with) the access and user of light and air to and for the
adjoining property so as to make the same fall below the quantity or quality thereof
now enjoyed by such property.”

3. The “adjoining property” refers to two parcels of land. One of these, the “blue land”, is
the site of Pinfold House, Almond Close which was retained by Mr and Mrs Nangle as their
home. The other parcel, the “green land”, was eventually redeveloped as Pinfold West, 14 The
Green.

4. The applicants purchased the application land in 1998. On 22 February 2006 they
obtained detailed planning permission from Daventry District Council (reference No.
DA/2006/0045) for the “conversion of dwelling to five dwellings including two storey and first
floor extensions”. The application provided for ten off street car parking spaces, two per
dwelling. There were 17 conditions attached to the planning permission.

5. By an application dated 15 June 2006 the applicants sought the discharge of restrictions
(i) to (iii) under grounds (a), (aa) and (c) of section 84 of the Act. The application was
subsequently amended to one for modification only of the restrictions. Reliance upon ground
(a) was abandoned.

6. There was one objection to the application. This was made by Mr Kenneth Edward
Marshall (the objector) the present freehold owner of Pinfold House.

7. Mrs Victoria Vince appeared in person on behalf of the applicants and gave evidence of
fact. She called Mr Richard Merrett RIBA as an expert witness.

8. Mr Joshua Shields of counsel appeared on behalf of the objector and called Mr Kenneth
Edward Marshall as a witness of fact and Mr William Richard Charles Shearer FRICS,
FCAAV, a partner in Bidwells, as an expert witness.

9. I made an accompanied site inspection of the application land and Pinfold House on
3 July 2007.

Facts

10. Barby is a small village located approximately four miles south east of the centre of
Rugby just south of the M45 motorway. The application land is located in the middle of the
village at the junction of The Green and Almond Close. It is situated in a residential area.

11. Old Pinfold House dates back to the 17^th century but despite its age it is not a listed
building. It is a large detached house comprising over 20 rooms standing in grounds of
approximately 0.155 hectares. The house is predominantly two storeys high but there is a
single storey flat roof (garage) extension to the east adjoining Pinfold House. There is another
single storey extension to the south close to the house known as Pinfold West. There is a 1.2m
wide passageway between the garage and the 1.9m high brick wall that forms the boundary
with Pinfold House. The western and northern boundaries of the application land comprise a
brick wall with mature vegetation that screens the house from the two adjacent roads.
Vehicular access is from Almond Close.

12. Pinfold House adjoins the application land to the east. It is a two storey five bedroom
detached house of brick and tile construction. The western elevation of the house faces the
application land. There are five windows in this elevation only one of which, a games room in
the attic, has clear glazing. The remaining windows, in a bathroom at first floor level, a half-
landing and a cloakroom and a utility room at ground floor level, all have obscured glazing.
Pinfold House is approximately 2.5m from the eastern wall of the single storey garage next
door, which is approximately 3m high. Both Pinfold House and the garage extension were in
existence when the covenants were imposed in 1978.

13. The proposals include the redevelopment of the single storey garage into a two-storey
house. This would have a pitched roof with a ridge height of approximately 7.6m which is a
metre lower than the height of the other four new houses further to the west. It is also proposed
to extend Old Pinfold House to the rear. This extension would be two storeys in height except
for the extension that is to form the dwelling nearest to Pinfold House which would be single

storey with a single pitch roof. There would be no windows in the eastern elevation of Old
Pinford House following its conversion and the parties have agreed that there would be no
problem of overlooking or loss of privacy.

14. The parties agreed that the restrictions impede a reasonable user of the application land
for the purposes of section 84 (1)(aa) of the Act.

The case for the applicant

15. Mrs Vince stated that neither the applicants nor the objector were original parties to the
1978 conveyance under which the covenants were imposed. She noted that the other
beneficiary of the covenants (the owner of 14 The Green) had not objected to the proposals.
Indeed it appeared that the benefit of these covenants had not been transferred when Mr and
Mrs Nangle had sold this property. There was no reference to the covenants in the official
copy of the register of title for 14 The Green. There was no building scheme in existence and
the restrictions imposed upon the “blue land” (Pinfold House) under the 1978 conveyance were
not the same as those imposed upon the application land under that document. The applicants
required a modification of the covenants solely to allow the development for which planning
permission had been obtained. This would protect the objector from any future redevelopment
proposals.

16. Mrs Vince reviewed the six practical benefits that the objector had identified as being
secured by the restrictions: maintenance of property value, maintenance of a view, peace and
quiet, light, the prevention of increased vehicular movements and the prevention of noise
during building operations.

17. The applicants agreed with the conclusions of the objector’s expert, Mr Shearer, that the
proposed development would not have a significant impact on the financial value of Pinfold
House. Indeed the applicants considered that the proposals would have an uplifting effect on
neighbouring property prices due to the improved appearance of the application land and by
making improvements to the vehicular access. The applicants relied upon the planning
officer’s report and upon a letter from Mr Alex Clarke of Howkins and Harrison, a firm of
Chartered Surveyors and Estate Agents based in Rugby, dated 11 December 2006 in which he
stated that:

“... In my opinion the market value of Pinfold House, Almond Close, Barby would not
be adversely affected by the proposed development of Old Pinfold House. Once the
proposed work has been completed there is a possibility that there would be a small
rise in values in the general area because of the condition that the house and gardens
are currently kept in. Any measurable increase of course would be impossible to
predict at this stage.”

The applicants disputed Mr Shearer’s conclusion that the proposed development would reduce
the value of Pinfold House by between £5,000 and £10,000.

18. The applicants said that there would be no loss of view from within Pinfold House since
all the windows, apart from that in the attic (which would be unaffected in any event), were of
obscured glass. Mrs Vince noted that Mr Shearer had reached the same conclusion. She
explained that the proposed extension over the existing garages was relatively low and that the
extension behind the garages was only single storey. The two storey rear extensions to Old
Pinfold House would be at least 10 metres from the objector’s property and were only some 3
metres deep. Mrs Vince pointed out that there was already a 1.9 metre high boundary fence
that obscured views to the west as well as a large tree in the objector’s garden. Furthermore
the applicants intended to construct an extension over the existing garages, subject to planning
permission, even if the present application failed and therefore the maintenance of a view was
not a benefit secured by the covenants, as per Re Fairclough Homes Limited’s Application
(2004) Lands Tribunal LP/30/2001 (unreported).

19. The covenants did not restrict the number of people who could live as a single family in
Old Pinfold House and Mrs Vince rejected the objector’s argument that the proposed
development would necessarily involve increased occupancy and activity. The proposals did
not seek to provide additional artificial lighting to that which existed at present. The side/rear
passageway already existed and if lighting was required then this could be provided at low
level. The passageway would in future be gated which would increase security.

20. The applicants relied upon Mr Merrett’s supplementary expert report as being the only
objective evidence on the issue of the potential loss of light to Pinfold House. This showed
that there would be no loss of sunlight since the proposed extension above the existing garages
would be built facing north towards the front of Old Pinfold House and would not obstruct the
path of the sun. Mr Merrett considered that the proposals would increase the amount of diffuse
light available to the windows in the west elevation of Pinfold House because it was proposed
to paint the eastern elevation of the extension above the garages in a light colour. He also
suggested that the objector could improve the diffuse lighting by painting his side of the
boundary wall white. Mr Merrett rejected the objector’s claim that the new development
would overshadow his patio area because such development was located to the north and
would not obstruct any sunlight. He considered that the objector’s existing tree already
overshadowed the patio to the west.

21. Mrs Vince described the possibility of an increase in traffic resulting from the proposed
development as speculative. The proposed vehicular access to Old Pinfold House from
Almond Close was before the entrance to Pinfold House and therefore vehicles travelling to
and from the application land would not pass in front of the objector’s property. Mr Merrett
explained that the present access would be improved by means of widening the entrance and
providing better visibility splays. Vehicles would be able to turn within the curtilage of Old
Pinfold House and drive out forwards. The applicants had not experienced any difficulty with
cars parked in Almond Close and noted in any event that the proposed provision of 10 car
parking spaces in the new development exceeded the local planning authority’s parking
standards. Mr Merrett considered that these new parking spaces would be dispersed and
hidden to the objector by landscaping.

22. The prevention of noise and disturbance from the building operations associated with the
proposed development was not a benefit secured under the covenants. Those covenants
restricted use rather than development. The applicants referred to the case of Shephard and
Others v Turner and Another [2006] 20 EG 294 in which the Court of Appeal held that a
“reasonable user” of land for the purposes of ground (aa) referred naturally to a long-term use
of the land rather than the process of transition to such a use.

23. Mrs Vince submitted that any potential impact from the proposed development had been
carefully considered at the design and planning stages. Proposals to ameliorate the possible
effects of the development had been made to the objector, including re-siting the vehicular
access for four of the proposed dwellings onto The Green and restricting the use of the
passageway adjoining Pinfold House to just one dwelling rather than four. No response to
these proposals had been received from the objector. The applicants considered that, in the
light of their arguments regarding ground (aa) and their efforts to minimise the impact of their
proposals upon the objector’s property, no injury would be caused to the objector by the
proposed modification of the covenants.

24. Mrs Vince also described and relied upon the wider benefits of the development in terms
of the immediate neighbourhood and the local community, environmental considerations and
its compliance with current policies to encourage affordable housing and to re-use previously
developed land, such as Planning Policy Statement 3: Housing.

The case for the objector

25. Mr Marshall explained that he and his wife had lived in Pinfold House for 20 years and
that they had enjoyed and grown accustomed to the lifestyle afforded by the property and
which was protected by the covenants imposed under the 1978 conveyance. Those covenants
had been created by Mr Nangle to protect the quiet enjoyment of Pinfold House for himself and
his successors. Mr Marshall felt that the present application threatened to ruin his quality of
life and that, if successful, it would have a substantially negative effect upon his property. He
had opposed the planning application and referred to a total of 14 letters of objection that had
been sent to the local planning authority by local residents.

26. The objector considered the proposals to be over development. Building so close to
Pinfold House would make the new development overbearing and, in Mr Marshall’s view,
would render the property considerably less valuable. Mr Marshall’s initial reaction to the
proposals, and one that was supported by Mr Shearer, was that he would lose light to his
property. He said that Pinfold House benefited from direct sunlight from the early afternoon
until the sun moved behind Old Pinfold House. He produced three photographs taken between
5.20 pm and 5.50 pm on 12 June 2007 showing the sun shining directly through the half
landing and utility room windows. The downstairs rooms leading off the hallway all had
glazed doors to enable sunlight and diffuse light to pass through.

27. There would be a significant increase in noise and general disturbance due to the five
fold increase in the number of households. The use and enjoyment of the objector’s back

garden would be severely interrupted and his peace and sleep were likely to be disturbed. This
would be exacerbated by the use of the adjoining side/rear passageway by four households
rather than one. The increased use of this passageway would create a security risk to Pinfold
House. There would also be a significant increase in traffic which, apart from the increased
noise, was likely to cause problems of on street parking and would create difficulties for
service and emergency vehicles needing to gain access to Almond Close.

28. Mr Marshall believed that the applicants had deliberately let Old Pinfold House become
dilapidated in order to gain an advantage when seeking planning permission for its
redevelopment. He felt that it had been left to deteriorate for over three years. He also
considered that the proposed development would cause disruption to his enjoyment of Pinfold
House during the building works and that his property may be damaged by the proximity of the
excavations. He was unable to comment upon the applicants’ view that the Party Wall etc Act
1996 would not apply in this instance.

29. Mr Shearer was satisfied that the restrictions still secured a number of practical benefits
to the objector given that there had been no change in character of the application land or the
immediate neighbourhood since they were imposed in 1978. He did not believe that the
proposals would have a significant impact upon the financial value of Pinfold House.
Although he had not been instructed to value the property he considered that the proposed
development would diminish its value by £5,000 to £10,000, which Mr Shearer described as
representing one to two bids in the market. He attributed this diminution to the greater
intensity of use of the application land, the existence of the passageway and the proximity of
the building extension. He did not base his view upon any comparable evidence but relied
instead upon his experience of valuing residential property.

30. There would be no significant loss of view from inside Pinfold House but the
construction of the extensions to Old Pinfold House would reduce the distant views to the west
and northwest from the garden and, in particular, the patio.

31. The substantial increase in residential floor space arising from the conversion of Old
Pinfold House and the increase in the number of households from one to five meant that there
would be a greater intensity of occupation and activity on the application land. Under cross-
examination Mr Shearer acknowledged that this was not a necessary corollary of having more
dwellings on the site but he considered that it was likely to happen. He felt that some form of
lighting would be required in the side/rear passageway and that this would have some impact
upon Pinfold House. He also believed that any shared passageway, even if gated, could lead to
access for trespassers. However, he acknowledged that this was not an important factor.

32. Mr Shearer considered that the most significant impact arising from the proposals would
be the reduction of light to the windows in the western elevation of Pinfold House. The new
development would be within 2.6 metres of this elevation and would also overshadow the patio
area to the rear of the objector’s property. The windows most affected would be those on the
half landing and at ground floor level. All of them currently enjoyed direct sunlight, including
the cloakroom and the utility room which were partially blocked by the existing garage wall.

He also thought that the bathroom window would be affected because the proposed roof
ridgeline would be above it leading to the possibility of shadowing when the sun was low.

33. Mr Shearer said that in his opinion the increased activity and likely traffic movements
from the new development would be noticeable in terms of the loss of peace and quiet. The
objector would be aware of an increase in such movements.

34. Mr Shields submitted that the considerations that may be taken into account by the
Tribunal are wide and that it must consider the overall effect of the proposed works on the
objector, as well as the individual effects, as per Shephard. He said that the applicants had
failed to take a reality check when they argued that there was no certainty that the proposed
development would lead to an increase in occupancy and traffic movements. The proposals
were for five dwellings rather than one. They provided for 10 car parking spaces. It was
inevitable that there would be a substantial and adverse effect upon the objector. That was
only common sense. The increased activity associated with an additional four households
would interfere with the objector’s use of his garden and, in particular, the raised patio area
that was in close proximity to the rear passageway. The distant view from the patio to the hills
to the north and west were secured by the covenant against nuisance. The applicants had not
produced any evidence that such a view would not be lost.

35. The applicants had not maintained Old Pinfold House properly and were using its
tumbledown appearance to justify the proposals and to support their claim that neighbouring
property values would be uplifted. Their statement that they would extend above the garages
even if the application failed ignored the continued existence of the covenants and the need to
obtain planning permission.

36. Mr Shields submitted that Mr Merrett’s evidence about the possible loss of light was
hopeless. Mr Merrett was not an expert on light, he had not inspected Pinfold House either
inside or out, he had only considered sunlight in his report and had ignored the importance to
the objector of maintaining diffuse light and his survey had been done during the height of
summer and not over the course of a whole year. His approach had been unscientific and
unprofessional. The local planning authority’s observations on light were not relevant to the
consideration of the issue for the purposes of this application. The proposals would also
interfere with the light to, and the amenity of, the objector’s patio area which would be
overshadowed by the development. The patio would lose the open air feeling that it currently
enjoyed. This was a practical benefit of substantial value or advantage, as per the decision of
the Tribunal in Re Williams’ Application (1987) 55 P & CR 400.

37. Mr Shields argued that the factors set out above constituted an injury that would be
caused to the objector if the application were successful.

Conclusions: reasonable user and the public interest

38. The parties agree that the proposed user is reasonable for the purposes of section
84(1)(aa) of the Act and that the continued existence of the restrictions, unless modified, will
impede such user.

39. The applicants submitted that the wider benefits of the proposed development that I have
outlined in paragraph 24 above were matters of public interest that ought to be taken into
account. However, the applicants did not state in terms that section 84(1A)(b) was relied upon,
namely that in impeding the proposed user the restrictions are contrary to the public interest.
In any event in my opinion whilst considerations of those wider benefits add weight to the
applicants’ (uncontested) submission that the proposed user is reasonable, the fact that the
proposal is consistent with the public interest in the ways described by the applicants does not
mean that to maintain the restrictions would be contrary to that interest. As the President of the
Tribunal, Douglas Frank QC, said in Re Collins’ Application (1975) 30 P & CR 527 at 531:

“In my view for an application to succeed on the grounds of public interest it must be
shown that that interest is so important and immediate as to justify the serious
interference with private rights and the sanctity of contract. In my judgment this case
comes nowhere near satisfying that test.”

In this reference I do not consider the issues that were identified by the applicants to be so
pressing or so significant as to enable me to say that the continuance of the restrictions is
contrary to the public interest.

Conclusions: practical benefits

40. The application as amended is for the modification of the restrictions to permit the
implementation of planning permission reference DA/2006/0045 granted on 22 February 2006.
In their evidence and submissions the applicants referred to a number of possible amendments
to the plans forming part of that planning permission. However, the local planning authority
had not approved those amendments at the date of the hearing and the applicants did not state
in terms, nor invite the Tribunal to consider, any specific wording to enable these amendments
to be taken into account. I return to this point below.

41. Section 84(1A) of the Act states that subsection (1)(aa) authorises the modification of a
restriction by reference to its impeding some user of land in any case in which the Tribunal is
satisfied that the restriction, in impeding that user, does not secure to persons entitled to the
benefit of it any practical benefits of substantial value or advantage to them. The Tribunal
must also be satisfied that money will be an adequate compensation for the loss or
disadvantage (if any) which any such persons will suffer from the modification. The objector
has identified six practical benefits that the restrictions secure to him and which he considers to
be of substantial value or advantage. I consider these below.

Maintenance of a view

42. There would be no loss of view from inside Pinfold House. The five windows on its
western elevation all have obscured glazing with the exception of the attic window which is
sufficiently high not to be affected by the proposals.

43. I do not consider that the loss of the view from the garden that would result from the
proposed development is material. The current views to the north are dominated by the flat
roof of the existing garage in the foreground whilst the views to the west are more limited and
are already restricted by trees on the objector’s property and the application land.

Peace and quiet and the increase in the number of vehicles

44. There would be a significant increase (at least 33%) in residential floor space as a result
of the proposed development and there would be five dwellings instead of one. Ten car
parking spaces would be provided and vehicular access would be via an enlarged entrance
adjoining the objector’s property. Despite these factors the applicants persisted in their
argument that the proposed development would not necessarily lead to increased vehicular
movement or intensified activity on the application land. They supported that argument solely
it seems to me on the tenuous ground that the restrictions placed no limit on the number of
persons who can occupy Old Pinfold House for the purposes of a single dwelling house. I
agree with the objector that such an argument is unrealistic. In my opinion it is highly likely
that the vehicular movements and activity generated by five households, in two three-bedroom
and three two-bedroom houses, will exceed that of a single household on the application land.

45. The objector is likely to be affected in particular by the use of the passageway adjoining
Pinfold House by four households. Some of this passageway already exists but it would in
future extend along the whole of the boundary between the application land and the front of the
objector’s house, a total length of approximately 25 metres. It seems to me to be likely that
some form of lighting would need to be provided especially since the northern end of the
passageway would be gated and there are two dog-legs along the enclosed route. The
passageway would be used, inter alia, for the movement of wheelie bins from the rear gardens
of the four houses to the front of the application land for collection. I consider that greater use
would be made of the passageway in the future than at present.

46. The increase in vehicular movements would only be seen from the front of Pinfold House
and not from the rear garden. Vehicles to and from Old Pinfold House would not normally
pass the front of Pinfold House given that Almond Close is a cul-de-sac. But it is likely that
there would be an increase in total vehicular movements on the application land of which the
objector would generally be aware.

47. The applicants have designed the development to avoid overlooking Pinfold House.
There would be no windows in the proposed eastern elevation of the new houses facing the
objector’s house. In the southern elevation of the house proposed to be built adjoining Pinfold

House there would be a bedroom window at ground floor level. It is unlikely that this would
overlook the objector’s patio area due the height of the boundary fence. I agree with Mr
Shearer’s conclusions that the proposals have maintained the objector’s privacy as far as
possible.

Light

48. Mr Shearer considered the reduction in the amount of light available to the windows in
the western elevation of Pinfold House and the likelihood of the patio being overshadowed in
the evening to be the most significant factor when considering the practical benefits secured to
the objector by the restrictions. By contrast Mr Merrett concluded that there would be no loss
of sunlight due to the proposals and that they would increase the amount of diffuse light
provided the eastern flank wall of the new extension adjoining Pinfold House was painted in a
light colour.

49. Neither Mr Shearer nor Mr Merrett is an expert on light. Mr Shearer’s views were
informed by a site inspection of Pinfold House in the company of the objector and by his
consideration of the available plans and elevations. Unlike Mr Shields he did not dismiss
Mr Merrett’s report on sunlight as being hopeless but considered that some information was
better than none and acknowledged that the series of photographs taken by Mr Merrett showed
the path of the sun during the height of summer in May and June 2007. But he argued that
those photographs were of no assistance in considering the loss of light within Pinfold House.
Mr Marshall’s three photographs had been taken inside the house in June 2007 in the early
evening and show direct sunlight coming through the windows on the half landing and the
utility room despite the proximity of the existing garages.

50. I am satisfied from the evidence that the proposals would reduce the amount of sunlight
and daylight (diffuse light) available to the ground floor utility room and cloakroom. The
effect (if any) on the half landing, bathroom and attic windows would not be so significant
given their orientation, height and position. Mr Merrett’s conclusion that the diffuse light
would increase if the new flank wall is painted a light colour is conjecture and not based upon
expert knowledge.

51. Mr Shields submitted that it was not relevant that the windows in the western elevation
of Pinfold House did not serve habitable rooms. What mattered, he said, was that the objector
needed to use the rooms served by those windows and could not do so if, for example, he could
not read the washing instructions on a label because of poor light. I do not accept that
argument. I believe that there is a material difference between the use of these rooms and that
of a habitable room. The use of the utility room and cloakroom on the ground floor and the
bathroom on the first floor is essentially transitory. The attic room was said by Mr Marshall to
be used only occasionally and in any event it is not affected by the proposals. The use of
habitable rooms is likely to be for longer and for a greater range of purposes. I distinguish
between the ability to read a washing label for 30 seconds in a utility room and the ability to
read a newspaper for 30 minutes in a living room. However, I place weight upon the fact that

the downstairs rooms have glazed doors to ensure the maximum distribution of available light
and I believe that the proposals would have an adverse impact upon this benefit.

52. I do not believe that the proposed development would cause any overshadowing of the
objector’s patio. The two storey extension to the south of Old Pinfold House may reduce the
sunlight available in the late evening in summer or when the path of the sun is lower in the sky
during other times of the year. However no evidence was produced to prove this. The
extension above the existing garage which lies due north of the patio will not block any
sunlight to the patio although it will reduce the openness of the outlook in this direction. The
applicants have sought to minimise any impact in this respect by limiting the rear extension of
the new dwelling adjoining Pinfold House to a single storey structure.

Building operations

53. The applicants stated that the proposed works would take approximately six months.
This estimate was not disputed. The objector was concerned about the noise and disturbance
likely to be caused during that time and about the possible effects of the works upon the
foundations of his property. The applicants referred to the Court of Appeal decision in
Shephard v Turner in which Carnwath LJ said at paragraph 58:

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

I do not consider that there is anything in the restrictions that are the subject of this application
that would justify giving such special weight to this factor.

Maintenance of value

54. The applicants relied upon correspondence from Mr Alex Clarke of Howkins and
Harrison to show that the proposals would not adversely affect the market value of Pinfold
House. Mr Clarke was not called to give evidence and his letter was appended to Mr Merrett’s
report. So far as I am aware Mr Clarke has not inspected the objector’s property from either
inside or outside. This evidence was hearsay and unexamined and I attach no weight to it.

55. Mr Shearer has over 30 years experience in the management, sale and purchase of rural
and residential property and has also undertaken residential mortgage valuations. He expressed
the opinion that the proposed development would not have a significant impact on the financial
value of Pinfold House, although he was not instructed to value it. However, he believed that
the proposals would have an effect upon value, which he considered to be £5,000 to £10,000,
this being the difference of one or two bids in the open market. I found Mr Shearer’s evidence
to be impartial and balanced and I accept his conclusion on this issue.

Conclusions: the substantiality of the practical benefits

56. In my opinion the maintenance of the view from, and the value of, Pinfold House and the
avoidance of building operations are not practical benefits of substantial value or advantage to
the objector. However, I am satisfied that the proposed development, despite the best efforts of
the applicants to minimise its impact by considerate design, would lead to an increased level of
occupancy, activity and vehicular movement and to some loss of sunlight and daylight to
Pinfold House which would have a significant combined effect upon the objector. I consider
that the maintenance of peace and quiet and the access of light, both of which have remained
largely unchanged since the restrictions were imposed in 1978, are practical benefits which,
when taken together, are of substantial value or advantage to the objector.

57. It was suggested by the applicants that providing both vehicular and pedestrian access to
four of the proposed dwellings from The Green rather than Almond Close would ameliorate the
effect on the objector of vehicular movements and the increased use of the side/rear
passageway. The details of these proposals were not part of the applicants’ evidence and they
were put forward in principle only. The applicants have discussed the alternative access
arrangements with the local planning and highway authorities but at the time of the hearing no
such alternatives had been approved. The objector had declined to comment upon them. The
applicants did not ask the Tribunal to exercise its discretion under section 84(1C) of the Act to
add further provisions restricting the user of the application land so as to give effect to these
alternative access arrangements and in the absence of firm proposals and planning permission
for the same I decline to do so.

58. Mrs Vince argued that the Tribunal should consider the substantiality of any practical
benefits in the context of what the applicants could develop without breaching the restrictions.
The applicants said that in the event that their application failed they intended to develop above
the existing garages. Whether this could be done without breaching the restrictions depends
upon the details of such a proposal and these were not available at the hearing. The applicants
do not have planning permission for such an alternative. My understanding of Mrs Vince’s
proposals is that any such extension would, to a large degree, echo the form of the building that
is currently proposed to be developed next door to Pinfold House. That being so the applicants
will still be faced with restrictions (ii) and (iii) even if by retaining the enlarged property within
the use of one family restriction (i) is satisfied.

59. In re Fairclough Homes Limited (which was cited by the applicants) the President said:

“29. …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 on the degree
of 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.”

I place little weight upon the applicants’ submissions on this point because Mrs Vince only
outlined a hypothetical alternative form of development about which no details were provided
and for which no planning permission has been obtained. Nor is it possible to say whether or
not it will breach some or all of the restrictions.

Conclusions: Grounds (aa) and (c)

60. I find that the applicants have failed to satisfy the requirements of ground (aa) and having
determined that the restrictions secure practical benefits of substantial value or advantage to
the objector it follows that he would be injured by the proposed modification. The application
therefore fails under ground (c) also.

61. The applicants have not succeeded in establishing any of the grounds relied upon and the
application is therefore refused. A letter on costs accompanies this decision, which will take
effect when, but not until, the question of costs is decided. The attention of the parties is drawn
to paragraph 22.4 of the Lands Tribunal Practice Directions of 11 May 2006.

Dated 14 September 2007

A J Trott FRICS

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	England and Wales Lands Tribunal
You are here: BAILII >> Databases >> England and Wales Lands Tribunal >> Vince & Anor v [2007] EWLands LP_41_2006 (14 September 2007) URL: http://www.bailii.org/ew/cases/EWLands/2007/LP_41_2006.html Cite as: [2007] EWLands LP_41_2006



	LP/41/2006

	LANDS TRIBUNAL ACT 1949 *RESTRICTIVE* *COVENANT* – *modification* - *proposed* *conversion* of *dwelling* to five dwellings *including* *extensions* - *whether* *practical* *benefits* of *substantial* *value* or advantage secured - *application* *refused* - *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

	BY

	RUSSELL VINCE and VICTORIA VINCE

	Re: Old Pinfold House, 16 The Green, Barby, Rugby, Warwickshire, CV23 8TS

	Before: A J Trott FRICS

	Sitting at Procession House, 110 New Bridge Street, London, EC4V 6JL On 31 August 2007

	Mrs Victoria Vince in person for the applicants Joshua Shields, instructed by Stephensons Solicitors LLP, for the objector

	© CROWN COPYRIGHT 2007

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	DECISION

	Introduction 1. This is an application by Mr Russell and Mrs Victoria Vince (the applicants) under section 84 of the Law of Property Act 1925 (the Act) seeking the modification of restrictive covenants affecting freehold land comprising a house known as Old Pinfold House, 16 The Green, Barby, Rugby, Warwickshire, CV23 8TS (the application land). If successful the application will allow the conversion of Old Pinfold House into five terraced dwellings including two storey and first floor extensions. 2. The restrictions in question are contained in clause 3 of a conveyance of the application land dated 4 August 1978 between Mr and Mrs B S Nangle (the vendors) and Mr and Mrs C J Melchers (the purchasers). The purchasers covenanted: “(i) Not to use the property hereby conveyed for any purpose other than that of a single private dwelling-house in the occupation of one family. (ii) Not to do or suffer to be done on the property hereby conveyed anything which may be or grow to be a nuisance to the Vendors or their successors in title to the adjoining property. (iii) Not at any time to obstruct or otherwise so interfere with (or permit or suffer to be obstructed or interfered with) the access and user of light and air to and for the adjoining property so as to make the same fall below the quantity or quality thereof now enjoyed by such property.” 3. The “adjoining property” refers to two parcels of land. One of these, the “blue land”, is the site of Pinfold House, Almond Close which was retained by Mr and Mrs Nangle as their home. The other parcel, the “green land”, was eventually redeveloped as Pinfold West, 14 The Green. 4. The applicants purchased the application land in 1998. On 22 February 2006 they obtained detailed planning permission from Daventry District Council (reference No. DA/2006/0045) for the “conversion of dwelling to five dwellings including two storey and first floor extensions”. The application provided for ten off street car parking spaces, two per dwelling. There were 17 conditions attached to the planning permission. 5. By an application dated 15 June 2006 the applicants sought the discharge of restrictions (i) to (iii) under grounds (a), (aa) and (c) of section 84 of the Act. The application was subsequently amended to one for modification only of the restrictions. Reliance upon ground (a) was abandoned.

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England and Wales Lands Tribunal