Mutman-Kearey, Re Application by [2007] EWLands LP_86

LP/86/2006

LANDS TRIBUNAL ACT 1949

RESTRICTIVE COVENANT – modification - practical benefits of substantial value or
advantage – proposal for single storey extension – effects of development on outlook from
objectors’ properties and upon surroundings – planning permission granted – application
refused – Law of Property Act 1925, s84(1), ground (aa)

IN THE MATTER of an APPLICATION
UNDER SECTION 84 of the LAW OF PROPERTY ACT 1925

JOSEPHINE MITMAN-KEAREY

Re: Corner Cottage (Unit 2), 2 The Mews, High Street,
Petworth, West Sussex GU28 0AU

Determination without an oral hearing under Rule 27, Lands Tribunal Rules 1996

by P R Francis FRICS

DECISION

Introduction

1. The applicant in this case, Mrs Josephine Mitman-Kearey, seeks the modification of a
covenant burdening the land at Corner Cottage, 2 The Mews, High Street, Petworth, West
Sussex, GU28 0AU so as to allow the construction of a single storey extension to the front of
the property, to provide a larger kitchen. The covenant, which is set out fully below, prevents
any building on the land. The objectors, Rosemary Wadey (1 The Mews), Harry Southon (3
The Mews) and Emily Elizabeth Wade (Holly Cottage, 4 The Mews) say that the proposed
extension will create a sense of overcrowding, will adversely affect views from some windows
in their properties, and may set a precedent for future applications.

Application land and surroundings

2. The Mews is a small development of 6 residential units, built around a central courtyard
(the former Boxall’s Yard), at the rear of buildings fronting Petworth High Street. The
architect designed scheme was undertaken in 1989 in mews style and the application property,
Corner Cottage (Unit 2), is the southernmost dwelling in an L shaped configuration that
comprises units 2, 3, 4 and 5. Its principal rooms face east over a small yard that separates it
from the side wall of Unit 1, a detached bungalow lying on the southern boundary. The
remaining property, unit 6 is in the south eastern corner of the irregularly shaped development,
and is not visible from the application property. The southern end wall of unit 2, an
approximately 7’ high wall separating it from unit 1, and the rear wall of that unit form the
boundary onto a public footpath beyond. Unit 2 and the adjoining unit 3, which also faces east
are single storey. Units 4 and 5 have accommodation on 2 floors, unit 4 having a kitchen and 1
bedroom that faces south towards the yard separating units 1 and 2, and unit 5, which is
occupied by the applicant, has one of its bedrooms containing the same outlook.

3. Vehicular access to the development, shared with another property known as The
Cottage, is between two buildings on the south side of the High Street. There are single
allocated parking bays for each of the units in the development, but the principal courtyard area
south of units 4 and 5, and over which units 1 and 3 also look, is vehicle free, and laid to
cobbled areas, paths and borders.

The restriction and modification sought

4. By a Deed of Covenant made on 24 September 2003, the applicant covenanted with the
registered owners of units 1, 3, 4 and 6 to observe and perform the covenants set out in the
transfer dated 19 August 1992 (which applied to all 6 units within the development). That
transfer listed the units and stated:

“Each unit is to be subject by way of a building scheme to the restrictions and
stipulations hereinafter mentioned…”

The covenants were imposed for the benefit of each and every part of the land, and the one that
is the subject of this application, 5(a) of Schedule 4, reads:

“5 (a) No building structure or fence wall hedge or erection of any kind whatsoever
other than the dwellinghouse and outbuildings (if any) now erected or in the course of
erection by the Transferor shall be built or erected on the Property or any part thereof”

5. The only ground set out in this application for the modification of the restriction was that
set out in section 84(1) (aa) of the Law of Property Act 1925, being:

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

Subsection (1A) provides:

(1A) Subsection (1)(aa) above authorises the discharge or modification of a restriction
by reference to its impeding some reasonable user of the land in any case in which the
Lands Tribunal is satisfied that the restriction, in impeding that user, either-
(a) does not secure to persons entitled to the benefit of it any practical benefits of
substantial value or advantage to them; or

(b) is contrary to the public interest

and that money will be an adequate compensation for the loss or disadvantage (if any)
which any such person will suffer from the discharge or modification”.

Case for the applicant

6. Mrs Mitman-Kearey, who lives at number 5 The Mews, said that she had bought the
application property for her mother, who had occupied it until her recent death. The property
was thus, at the time of my inspection on 6 August 2007, vacant, and the applicant said that she
intended to retain it as an investment. She explained that planning permission had been
obtained from Chichester District Council on 14 June 2006, and that that consent,
PW/06/01124/DOM, being for a “single storey extension forming kitchen, Velux window to
loft area and wheelchair access”, was not subject to any onerous conditions. She referred to
Condition 6, which was an Informative that stated:

“Summary of Reasons for Grant of Permission/Approval

Having considered the relevant policies of the Development Plan which are set out
below, the District Planning Authority has concluded that the proposed development will
not cause demonstrable harm to residential amenity, Petworth Conservation Area, the
Sussex Area of Outstanding Natural Beauty or any other interest of planning importance
including the human rights of the interested parties.”

7. She said that the fact that the local planning authority, having carefully considered the
proposal, had concluded that the development would have no detrimental affect on the
neighbouring properties or the general environment, supported her argument that, unless
modified, the restriction would impede the reasonable development of the land. In her
submission, in impeding such development, the restriction did not secure practical benefits of
substantial value or advantage to the objectors, and money would be adequate compensation.
Mrs Mitman-Kearey said that the proposed extension, which was principally to provide an
enlarged kitchen and safer domestic working area, would provide greater security for the
residents by partially enclosing an area which, in the past, had suffered from vandalism to the
end wall of that yard area from the adjacent footpath. It would not damage or detract from the
“courtyard development” concept and its design was such, with a hipped roof, that it would not
be visually intrusive. It was intended that the north wall, facing into the courtyard, would have
a planter to soften the impact.

Case for the objectors

8. Miss Wade said that the original developer had applied the restrictive covenant for good
reason – to prevent changes to the well thought out and open atmosphere of the mews. At
present, she said, she enjoyed a pleasant view from her kitchen window over the flowers and
shrubs in the borders of number 2, and over the end wall to the open sky beyond. The
proposed extension to number 2 would destroy that aspect by obscuring the view, and by
creating an enclosed atmosphere. Mrs Wadey and Mr Southon repeated the points about the
original intent, and the detrimental affects that the proposed extension would have. Mr
Southon also said that the modification, if accepted, would create a precedent and if the
development were to go ahead, he may well consider making similar alterations to his own
property.

Conclusions

9. The restrictions that are the subject matter of this application were, clearly in my view,
imposed for the specific purpose of preventing the very type of development that the applicant
now wishes to undertake. Whilst I have noted the comments in the planning officer’s
recommendation that the application receive consent, and those of the various consultees, I am
not persuaded that impeding the proposed development would not secure to the objectors
practical benefits of substantial value or advantage.

10. I accept the concerns of the objectors that the outlook from their properties would be
adversely affected, and that the extension would serve to enclose an otherwise semi-open area,
and create a feeling of overcrowding. The present layout and scale of the mews provides, in
my judgment, an attractive environment that would be damaged by the proposal to the extent
that, whilst the monetary value of their properties may not be materially affected, the
protection afforded by the restriction does secure to them practical benefits of substantial
advantage.

11. To summarise therefore, having carefully considered the plans and the photographic
mock-up showing the proposed extension as built, and having inspected the application land
from the courtyard, from number 2 The Mews and from the relevant vantage points within
numbers 4 and 5, I am satisfied that by preventing the erection of the proposed extension the
covenant impedes reasonable user of that land; that by so doing the covenant secures to the
objectors practical benefits of substantial advantage to them and that money would not be
adequate compensation for the disadvantage that they would suffer. Ground (aa) is not,
therefore, made out and the application is dismissed.

12. I would add that, even if I had found that ground (aa) was made out, I should in the
exercise of my discretion have refused the application, since the covenant was entered into
only 4 years ago specifically for the purpose of preventing development of the sort now
proposed.

DATED 17 September 2007

Signed P R Francis FRICS

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	LP/86/2006

	LANDS TRIBUNAL ACT 1949 RESTRICTIVE COVENANT – modification - practical benefits of substantial value or advantage – proposal for single storey extension – effects of development on outlook from objectors’ properties and upon surroundings – planning permission granted – application refused – Law of Property Act 1925, s84(1), ground (aa)

	IN THE MATTER of an APPLICATION UNDER SECTION 84 of the LAW OF PROPERTY ACT 1925

	by

	JOSEPHINE MITMAN-KEAREY

	Re: Corner Cottage (Unit 2), 2 The Mews, High Street, Petworth, West Sussex GU28 0AU

	Determination without an oral hearing under Rule 27, Lands Tribunal Rules 1996 by P R Francis FRICS

	© CROWN COPYRIGHT 2007

	1



	DECISION

	Introduction 1. The applicant in this case, Mrs Josephine Mitman-Kearey, seeks the modification of a covenant burdening the land at Corner Cottage, 2 The Mews, High Street, Petworth, West Sussex, GU28 0AU so as to allow the construction of a single storey extension to the front of the property, to provide a larger kitchen. The covenant, which is set out fully below, prevents any building on the land. The objectors, Rosemary Wadey (1 The Mews), Harry Southon (3 The Mews) and Emily Elizabeth Wade (Holly Cottage, 4 The Mews) say that the proposed extension will create a sense of overcrowding, will adversely affect views from some windows in their properties, and may set a precedent for future applications. Application land and surroundings 2. The Mews is a small development of 6 residential units, built around a central courtyard (the former Boxall’s Yard), at the rear of buildings fronting Petworth High Street. The architect designed scheme was undertaken in 1989 in mews style and the application property, Corner Cottage (Unit 2), is the southernmost dwelling in an L shaped configuration that comprises units 2, 3, 4 and 5. Its principal rooms face east over a small yard that separates it from the side wall of Unit 1, a detached bungalow lying on the southern boundary. The remaining property, unit 6 is in the south eastern corner of the irregularly shaped development, and is not visible from the application property. The southern end wall of unit 2, an approximately 7’ high wall separating it from unit 1, and the rear wall of that unit form the boundary onto a public footpath beyond. Unit 2 and the adjoining unit 3, which also faces east are single storey. Units 4 and 5 have accommodation on 2 floors, unit 4 having a kitchen and 1 bedroom that faces south towards the yard separating units 1 and 2, and unit 5, which is occupied by the applicant, has one of its bedrooms containing the same outlook. 3. Vehicular access to the development, shared with another property known as The Cottage, is between two buildings on the south side of the High Street. There are single allocated parking bays for each of the units in the development, but the principal courtyard area south of units 4 and 5, and over which units 1 and 3 also look, is vehicle free, and laid to cobbled areas, paths and borders. The restriction and modification sought 4. By a Deed of Covenant made on 24 September 2003, the applicant covenanted with the registered owners of units 1, 3, 4 and 6 to observe and perform the covenants set out in the transfer dated 19 August 1992 (which applied to all 6 units within the development). That transfer listed the units and stated: “Each unit is to be subject by way of a building scheme to the restrictions and stipulations hereinafter mentioned…”

	2

England and Wales Lands Tribunal