UPPER TRIBUNAL (LANDS CHAMBER)

	
UT Neutral citation number: [2012] UKUT 6 (LC)
	UTLC Case Number: LP/24/2010

	TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RESTRICTIVE COVENANT – modification – dwellinghouse – proposal to extend well in front of building line – application refused – Law of Property Act 1925 s84(1)(a), (aa), (b) and (c)

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

BY

(1)	MICHAEL ANTHONY COLDMAN
(2)	BETTY COLDMAN	

Re: 133 Richmond Road
	Twickenham
	Middlesex
	TW1 3AT

	Before: N J Rose FRICS

	Sitting at: 43-45 Bedford Square, London, WC1B 3AS
on 27 and 28 October 2011

First applicant in person for himself and second applicant
Deborah Ann Peak, objector, in person

The following case is referred to in this decision:
Truman, Hanbury, Buxton & Co Ltd’s Application [1956] QB 261
The following cases were also cited:
Mitman-Keary’s Application LP/86/2006, 17 September 2007 (unreported)
Diggens and others’ Application (No.2) [2001] 2 EGLR 163

DECISION
Introduction
1.	This is an application by Mr Michael Anthony Coldman and Mrs Betty Coldman under section 84(1) of the Law of Property Act 1925 (the Act) for the modification of restrictive covenants affecting a freehold dwellinghouse known as 133 Richmond Road, Twickenham, Middlesex, TW1 3AT (the application property) so as to permit a front extension to the existing building.
2.	The restrictions which it is sought to modify were imposed by a conveyance dated 9 May 1995 between Colin John Clifton (“the Transferor”) and Mrs Betty Coldman (“the Transferee”).  Firstly, by clause 2(a) of the conveyance the Transferee covenanted:
“to the intent that the burden of this covenant may run with and bind (so far as may be) the land hereby transferred and each and every part thereof into whosesoever hands the same may come and to the intent that the benefit thereof may be annexed to each and every part of the Estate to observe and perform the restrictive and other stipulations contained in the Third Schedule hereto so far as the same relate to the land hereby transferred.”
3.	The stipulations in the Third Schedule are as follows:
“(1) 	The Transferee will at all times hereafter maintain the walls or fences erected on the sides of the Property marked ‘T’ within the boundaries on the plan and will not alter or add to such walls or fences in any way without the consent in writing of the Transferor’s Surveyor.
(2)	The Transferee will not do anything on the Property so as to deprive any adjoining property of lateral support.
(3)	The Transferee will not use or permit to be used the Property or any part thereof in any manner to the prejudice of or so as to be a nuisance or annoyance to the owners or occupiers of any other property on the Estate or for the carrying on of any trade or business whatsoever and will use the same solely as a single private dwelling house and parking space in the occupation of one family.
(4)	Within a period of three years from the date hereof no building shall be erected on the Property and no building already erected on the Property shall be altered or extended except in accordance with plans and elevations which shall first be submitted to and approved by the Transferor’s Surveyor whose appropriate fee shall in each case be paid by the person submitting such plans and elevations.
(5)	No right of way shall be created on or over the Property without the written consent of the Transferor except rights of way from individual houses constructed thereon to the highway.
(6)	No commercial vehicle of any kind and no caravan or boat shall be allowed to stand on the property or any part thereof and no such commercial vehicle caravan or boat shall be parked on any of the roads on the Estate.
(7)	The Transferee will perform and observe all conditions contained in any Planning Permission affecting the Property.
(8)	Not at any time to use the land to the rear of the Property otherwise than as a garden and to keep the same at all times properly cultivated and tidy in accordance with any landscaping scheme that may be imposed by the Local or Planning Authority and not to erect any fence wall or hedge thereon (except where such fences or walls have already been erected by the Transferor) nor to place or exhibit or keep thereon any washing or other article for drying or for any similar purpose.
(9)	Where the land hereby transferred includes a separate parking space not to use the same for any purpose other than for the parking of private motor cars.
(10) 	The Transferee shall if necessary grant to any local authority statutory undertakers or public gas suppliers such easements as they shall require in connection with the provision and maintenance of the services referred to in clause 7 of the Second Schedule.
(11) 	The Transferee will pay to the Transferor as and when demanded (but no more than once in every twelve months) a rateable proportion of the amount expended by the Transferor in repairing maintaining resurfacing and otherwise keeping in good and substantial order the driveway and the bin store.”
4.	Secondly, by clause 2(c) of the conveyance
	“The Transferee covenants with the Transferor and as a separate covenant with British Gas Plc and each Statutory Undertaker and the Local Authority
	(i)	Not at any time to plant any trees or other deep rooting plants or shrubs nor erect any buildings fences walls or other erections one and one half metres either side of the service installations (as hereinafter defined)…
The expression “service installations” is defined in paragraph 2 of the Second Schedule as
	“any sewers drains watercourses water pipes channels pipes wires cables and other service conducting media … now constructed or to be constructed within a period of 80 years from 1 January 1994 in or under the land hereby transferred or any part thereof.”
5.	The application also purported to seek modification of a further restriction, but this section of the application merely repeated the wording of paragraph 8 of the Third Schedule and is therefore otiose.
6.	On September 2002 planning permission (Ref 01/1866/FUL) was granted by the London Borough of Richmond Upon Thames in respect of the application property for
“Two storey extension with roof dormer and roof extension to existing single storey rear extension.”
7.	In 2004, after work had started on the approved development it became clear that the various details required under the conditions in the planning permission had not been submitted.  Applications to discharge the conditions relating to materials and entrance details were then submitted and approved in September 2004.
8.	As work continued on site it became apparent that the extension under construction was not entirely in accordance with the scheme approved in 01/1866/FUL.   However, it seemed to the local planning officer that the overall character of the works was unchanged from the development previously approved and consequently a retrospective planning application was invited.
9.	The retrospective planning application was submitted in October 2004 under reference 04/3283/HOT.  It proposed a new two-storey front extension, a single storey side extension and details to the existing façade as a variation to 01/1866/FUL.  Planning permission for the development proposed in this application was granted on 17 October 2005.  Following the grant of that permission work continued, but excluding the front extension, which in effect forms the subject matter of the application to this Tribunal.
10.	In late 2010 Mr Coldman applied to the local planning authority for a certificate of lawfulness enabling him to finalise the implementation of permission 04/3283/HOT.  This application had not been determined at the date of the hearing.  Mr Coldman contended that, if the requested certificate was not forthcoming, he would finalise the implementation of 01/1866/FUL, the effect of which would not be significantly different from that of the subsequent consent.
11.	In the course of the hearing I pointed out that, as it seemed to me, it was not necessary to secure the modification of most of the stipulations in the Third Schedule to enable the proposed development to proceed.  However, Mr Coldman did not seek permission to reduce the scope of his application.
12.	The application has been made on the basis that the restriction in para (8) applies to the proposed development.  Although Mr Coldman sought to contend before me that modification of that restriction was not required for the proposed works.  I said that I would proceed to determine the application on the basis that modification was required.  The reasons for this were as follows.  It was Mr Coldman who applied to the Tribunal to modify the restrictions; he had been advised by his solicitor, Mr Morton of Calvert Smith & Sutcliffe, in a letter dated 28 April 2003, which he sent to the objector, that to carry out his scheme he would need to secure a release of the restriction limiting the use of the land at the rear to a garden; and no application had been made to the High Court under section 84(2) of the Act to declare whether or not the site of the proposed extension was affected by a restriction.  On the face of it, despite the apparent inappropriateness of referring to this piece of front garden as being to the rear of the property, it appears to me that in the light of the layout of the building which was on the site when the restriction was imposed, the restriction must have been intended to refer to that land.
13.	There is one objection to the application, from Miss Deborah Ann Peak, the freehold owner of 133A Richmond Road.  It is agreed that Miss Peak is entitled to the benefit of the restrictions.
14.	Mr Coldman appeared in person and on behalf of the other applicant, his mother and gave evidence.  Miss Peak appeared in person and gave evidence and called expert evidence from Mr Michael J F Donaldson, FRICS, MCIArb, MAE.
15.	On the morning of the second day of the hearing I inspected the application property and 133A Richmond Road, accompanied by Mr Coldman and Miss Peak.  I also made an unaccompanied inspection of the surrounding area.
Facts
16.	From the evidence I find the following facts.  The application property, together with No.133A, forms a semi-detached pair of dwellinghouses.  They were originally one single property comprising a shop and maisonette fronting the north side of Richmond Road, immediately east of the junction with Marble Hill Gardens to which they had a large return frontage.  The original building was sub-divided to form two cottages pursuant to a planning permission granted in 1994.  The frontage of the application property is to Marble Hill Gardens. No. 133A fronts onto Richmond Road, but it has a return frontage to Marble Hill Gardens.  No 133A has three rooms, a kitchen and a bathroom.  Its front elevation is close to the pavement.  Each cottage has a shallow front garden to Marble Hill Gardens and one parking space, accessed off Marble Hill Gardens at the northern end of the site.  Both the application property and the adjoining properties fronting Richmond Road are located within the Twickenham Riverside Conservation Area.
17.	Mrs Betty Coldman purchased No. 133 in 1995 and her son subsequently became joint owner. Miss Peak purchased No. 133A in 2001.  The accommodation in No. 133 as permitted by the original planning permission in 1994 comprised two rooms, kitchen and bathroom.  It has now been extended to provide four rooms, two kitchens and two bathrooms.  The effect of the proposed modification would be to permit the construction of a two storey plus attic extension, partly in front of the living room in the original section of the property, and partly in front of the recent side extension.  It would contain three rooms and be built right up to the existing front boundary wall and fence.
18.	After Miss Peak moved into No.133A in 2001 she was on good terms with the applicants.  At a meeting in June 2002 Mr Coldman showed Miss Peak a model of the proposed development.  Miss Peak said that she was not happy about her view being blocked by a brick wall.  She had, however, previously been advised by Mr Darren Cogman, the case officer at the local planning authority, that her objections did not come within the restricted grounds upon which she could validly oppose the grant of planning consent.  Mr Coldman told Miss Peak that he agreed with that advice.  Miss Peak asked if any other neighbours were  unhappy about the proposal.  Mr Coldman replied that only Mr Matthews at 135 Richmond Road had expressed concern, but he was “okay about it now”.  That was incorrect.  Mr Matthews expressed his opposition to the planning application when it was considered by the appropriate planning committee later in 2002 and Mr Coldman knew that other neighbours had also objected.
19.	At the meeting in June 2002 Mr Coldman asked Miss Peak to write a letter in support of his application to the local planning authority.  At the time Miss Peak did not know she had the benefit of restrictive covenants which would enable her to object to the proposed works.  In view of Mr Coldman’s assurances about the absence of objections from neighbours, the advice she had received from Mr Cogman that planning permission to develop in the front garden of No. 133 was bound to be refused, and in the interests of good neighbourly relations, Miss Peak wrote to the local planning authority on 29 June 2002 as follows:
	“I would like to confirm that Mr Michael Coldman has shown me the plans for the proposed extension at the above address (next door to me) and that I have no objections to the plans as they stand.”
The restrictions
20.	The application was made in relation to all the Third Schedule stipulations as well as clause 2(c)(i).  I have no power to modify the covenants in paras (1), (7), (10) and (11), because they are positive, not restrictive covenants.  The applicants have not advanced any arguments as to why any restrictions other than clause 2(c)(i),  and  paras (4) and (8) should be modified and I therefore refuse the application insofar as it relates to the other restrictions.
21.	Mr Coldman contended that para (4) was a restriction that only applied within the period of three years from the date of the transfer and Miss Peak did not argue to the contrary.  I accept Mr Coldman’s contention on this matter.  The effect is that the restriction is spent and does not require modification.  (It could be discharged as being obsolete, but discharge did not form part of the application).
22.	I will therefore consider the grounds of the application in relation only to clause 2(c)(i) and para (8).
Grounds of the application and conclusions
Ground (a)
23.	Mr Coldman submitted that the covenants were obsolete insofar as they prohibited the proposed construction works because those works had been permitted by the local planning authority.  Miss Peak submitted that the covenants were not obsolete.  She said that, in contrast to the applicants’ proposal, all the properties fronting Marble Hill Gardens had a front garden and had not been built upon in front of the building line.  This gave a feeling of openness which was valued and the position in this respect had not changed since the covenants were imposed.
24.	A covenant is obsolete when its original purpose can no longer be served (Re Truman, Hanbury, Buxton & Co Ltd’s Application [1956] QB 261 per Romer LJ at 271).  The fact that planning permission has been granted for a development which would breach a restriction does not of itself render the restriction obsolete.  One of the purposes of para (8), it is plain, was to preserve part of the application property in garden use.  In cross examination Mr Coldman accepted that the relevant land was still capable of being used as a garden.  It follows that, insofar as para (8) prevents the existing garden being built upon, it is not obsolete.  Mr Coldman did not suggest that the effect of the proposed development would be that the service installations would no longer be protected, and such protection was the purpose of the restriction under clause 2(c)(i).  That restriction, therefore, is not obsolete either.  The application on ground (a) fails.
Ground (aa)
25.	The principal issue under ground (aa) is whether the restrictions, in impeding the proposed user of the application property, secure to Miss Peak practical benefits of substantial value or advantage to her.
26.	Mr Coldman supported the application on this ground by pointing out that planning permission had been granted and the proposed use was consistent with the provisions of the local development plan.  He added that the effect of para (4) was to acknowledge that, after three years had passed following the date of the conveyance, the purchaser “has a right to build, subject to provisions.”
27.	Miss Peak considered that the proposed modification would adversely affect her in the following ways.  Her job with an airline meant that much of her time was spent away from home.  When at home she passed most of her time in her bedroom, much of it at her computer desk, which is located by the bay window overlooking Marble Hill Gardens.  This bedroom was much more peaceful than the front bedroom, which was adjacent to Richmond Road, a very busy main road.  The downstairs living room shared the noise problems of the front bedroom, so it was also not the ideal place to spend time unless there were visitors.
28.	The bay window provided light to the rear bedroom and a pleasant view from Miss Peak’s computer desk along Marble Hill Gardens, giving a feeling of space.  The proposed addition would extend to the full depth of the front garden of No.133 up to the pavement.  It would completely block the view from her desk.  The rear bedroom would enjoy less natural light and Miss Peak would be facing a wall about 4m away, rising to the full height of No.133 and with a chimney stack even closer and extending even higher.  As a result there would be no view at all.  As well as a lack of daylight and sunlight there would be a feeling of enclosure, whether Miss Peak was inside her property or outside it sitting in her small garden.  Furthermore, she would no longer be able to see her car parking space, which would be on the other side of the proposed extension.
29.	Miss Peak also considered that the proposed extension would be overbearing, dwarfing the neighbouring cottages, and with a layout and density completely out of character with the surroundings.  She was concerned that it would exacerbate noise levels from traffic using Richmond Road, and trap fumes which would otherwise disperse more freely.  As well as the direct impact on her own property, Miss Peak said that the proposed development had been the subject of strong opposition from many neighbours.  Indeed, the feeling had been so strong that a group of neighbours had considered applying for judicial review of the planning decision in September 2002, which had been decided only on the chairman’s casting vote, but they had been deterred by the costs involved.
30.	In addition, Miss Peak said that the construction of the extension at No.133 in 2003/4 had resulted in 20 months of disruption, leading to disagreements between the applicants and the local planning authority, its enforcement officers and building control department.  Because of her job Miss Peak often sleeps during the day when she is at home.  During 2003/4 her sleep was constantly interrupted by the neighbouring building works.  Many of her days off fell on weekdays when building work was taking place and blighted the enjoyment of her home.  In the light of her previous experience Miss Peak was concerned that, if the applicants were allowed to build the further extension now proposed, the resultant stress, disruption and inconvenience would be unbearable.  The applicants had seemed to be incapable of properly handling the initial project and had shown a lack of concern for their neighbours or for public safety.  There was no reason to suppose that the latest proposed project would be carried out any differently.
31.	Finally, Miss Peak was concerned that the proposed development might cause problems with her own sewer.
32.	In reply Mr Coldman denied that the proposed extension would lead to significant loss of light.  He said that the building problems in 2003/4 had been due to the deficiencies of his then project manager, about whom he had complained successfully to the Architects Registration Board.  
33.	Mr Coldman placed particular reliance on the letter written by Miss Peak to the local planning authority on 29 June 2002 (para 19 above).  He also said that Miss Peak had not taken any steps to prevent him proceeding with the proposed development until after she had received a valuation report from e.surv chartered surveyors dated 10 July 2003, which suggested that it would be reasonable to expect a ransom payment of approximately £70,000 for agreeing to the proposed modification.  
34.	In answer to a question from me Mr Coldman accepted that it was not unreasonable for Miss Peak to be concerned about the impact of the proposals upon her sewer, even though he considered such concerns to be unfounded.
35.	I accept Miss Peak’s evidence that she has always been unhappy at the prospect of a brick wall being erected close to what she considers to be the most important window in her house.  I am satisfied that she would not have written the letter to the local planning authority on 29 June 2002 if Mr Coldman had not told her that there were no outstanding objections to the proposed development.  I also accept her evidence that the advice on ransom value from e.surv played no part in her decision to object to the development.  As she pointed out, her continued and emphatic objections to the approval of details in 2004 and to the retrospective planning application in 2005 were not what would be expected from someone who was seeking to gain financial advantage from those very permissions.
36.	I find that, in impeding the proposed development, the restriction in para (8) secures to Miss Peak the following practical benefits: preservation of existing views and levels of daylight; preservation of the character of the immediate area; avoidance of an unacceptable sense of enclosure; avoidance of disturbance during building works. I also consider that Clause 2(c)(i) secures to Miss Peak the practical benefit of removing any concerns about the possible effect of the proposal on her sewer.  In my judgment each of these practical benefits is of substantial advantage to Miss Peak.
37.	Mr Donaldson expressed the view that the proposed development would have a significant detrimental effect on the value of No. 133A.  His concerns were principally directed to the loss of light and views and increased noise and pollution from traffic along Richmond Road.  He valued the freehold interest with and without the benefit of the restrictions at £350,000 and £250,000 respectively.  In my view any effect on value of increased noise and pollution would be minimal.  I consider that the likely diminution in value resulting from the loss of light and outlook would be of the order of 15 per cent.  Even that percentage, however, represents a substantial reduction in value.  It follows that, in impeding the proposed user of the application land, the restriction in para (8) secures to Miss Peak practical benefits which are of both substantial value and substantial advantage to her.
38.	I have not overlooked the fact that, in their report dated 10 July 2003, e.surv expressed the view that-
	“the proposed works to the adjoining property should not have a detrimental effect on the value of Miss Peak’s property.”
When he prepared that report, however, the author had had a site meeting attended only by the applicants (Miss Peak being abroad) and had not inspected the interior of No. 133A.  Moreover, he was not called to give evidence before me to support his opinion.
39.	In view of the conclusion I have reached on practical benefits it is not necessary for me to decide whether Miss Peak was right to suggest that the proposed user does not constitute a reasonable use of the application property.  Nor need I decide whether money would be an adequate compensation for the loss or disadvantage which Miss Peak would suffer from the modification of the restrictions.  The application on ground (aa) fails.
Ground (b)
40.	In order to succeed on ground (b) the Tribunal must be satisfied
“that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified.”
41.	In support of the application on ground (b) Mr Coldman relied on Miss Peak’s letter to the local planning authority dated 29 June 2002.  He also relied on a letter from Miss Peak to Mr Coldman dated 13 March 2003, which indicated that she was willing to meet Mr Coldman and his architect to discuss the proposed works.
42.	I do not think that the letter of 13 March 2003 can reasonably be interpreted as an agreement to modify the restrictions.  The applicants’ case on the letter dated 29 June 2002 is much stronger.  In normal circumstances it would be difficult for Miss Peak to argue that she was continuing to rely on the restrictions to prevent the proposed development when she had expressly stated that she had no objection to that development.  The circumstances in this case, however, are not normal.  Miss Peak wrote to the local authority as she did because she was on good terms with the applicants and Mr Coldman had told her that there were no outstanding objections from any of the other neighbours, knowing that to be incorrect.  Accordingly, Mr Coldman must have been aware that the agreement to his proposals contained in Miss Peak’s letter of 29 June 2002 had been given on the basis of a false assumption, and I do not think that her letter amounted to consent for the purpose of ground (b).
43.	I therefore conclude that the applicants have failed to establish their case on ground (b).
Ground (c)
44.	In view of the conclusion I have reached on ground (aa) it follows that the proposed modification would injure Miss Peak, who is entitled to the benefit of the restrictions.  Accordingly the application on ground (c) also fails.
Result
45.	Since none of the grounds relied upon have been made out I do not have power to modify the restrictions.  The application is therefore refused.  I would add that, if I had concluded that the applicants had established ground (b), I would not have exercised my discretion to modify the restrictions in view of Mr Coldman’s conduct in wrongly informing Miss Peak in June 2002 that there were no outstanding objections to the planning application.
Postscript
46.	Miss Peak asked me to issue a declaration regarding the applicants’ parking space adjacent to her own at the rear of No.133.  This space is occupied by a garden shed in apparent breach of a restrictive covenant limiting its use to the parking of private motor cars.  I have no jurisdiction to make such a declaration, which can only be made following an application to the court.  
47.	A letter concerning costs accompanies this decision, which will become final when the question of costs is determined.
							Dated 12 January 2012

							N J Rose FRICS
Addendum
48	I have received written submissions on costs.  Miss Peak asks for her costs, having been wholly successful in opposing the application.  She suggests that such costs should be the subject of a summary assessment in the sum of £12,339.40, including the professional fees of Mr Donaldson (£4,224.00) and of a planning consultant, Mr Carver (£150.00).
49.	Mr Coldman does not challenge Miss Peak’s entitlement to costs, nor the amount claimed for Mr Donaldson’s fees.  He suggests, however, that the number of hours claimed, 397, is excessive.  He also says that Miss Peak is wrong to charge all the hours spent at £18, because prior to 1 October 2011 the maximum hourly rate for a litigant in person was £9.25 per hour.  He contests Mr Carver’s charges, on the grounds that his advice was not directly related to the application to this Tribunal.  Finally, he objects to paying for Miss Peak’s attendance at another Lands Tribunal hearing over 3 days in Weymouth, as this had no direct bearing on his application.
50.	I agree that the number of hours claimed seems excessive, and that the appropriate hourly rate for time spent on the case before 1 October 2011 is £9.25.  I also agree that Mr Carver’s charges are not relevant to the restrictive covenant application and that the expenditure in connection with the Weymouth hearing was not reasonably incurred.
51.	Mr Coldman must pay Miss Peak’s costs, which I assess summarily at £7,000.00.
								Dated 20 February 2012

								N J Rose FRICS