Hayden, Re The Waves, 2 Hengist Road, Court of Appeal - Lands Tribunal, September 15, 2010, [2010] UKUT 332 (LC)

Resolution Date:September 15, 2010
Issuing Organization:Lands Tribunal
Actores:Hayden, Re The Waves, 2 Hengist Road





UT Neutral citation number: [2010] UKUT 332 (LC)



RESTRICTIVE COVENANT - modification - obsoleteness - practical benefits of substantial value or advantage - implicit agreement - injury - application to permit erection of property in accordance with planning consent granted on 28 February 2007 - breaches - status of application - planning issues - modification allowed - Law of Property Act 1925 section 84(1), grounds (a) (aa) (b) and (c)





Re: The Waves, 2 Hengist Road, Birchington, Kent CT7 9QP

Before: P R Francis FRICS

Sitting at: Margate Magistrates Court, The Courthouse

Cecil Square, Margate, Kent


10 June 2010

Martin Bromley, litigation friend, for the applicants with permission of the Tribunal

Johannes Kramer, objector in person

The following case referred to in this decision:

Re Bass Limited's Application [1973] 26 P&CR 156

Margerison v Bates [2008] EWHC 1211

Re Woodhouses' Application [2010] UKUT 235 (LC) Tribunal ref: LP/19/2009

Crest Nicholson Residential (South) Limited v McAllister [2008] 1 All ER 46

The following cases were also referred to in argument:

Ward v Paterson [1929] 2 Ch 396

Shepherd v Turner [2006] EGLR 73

Re Martin's Application (1988) 57 P & CR 119.



  1. The applicants in this case, Mr & Mrs Hayden, own and occupy The Waves, 2 Hengist Road, Birchington, Kent CT7 9QP (the application land). The application seeks the modification of a covenant ``from the single storey restriction to a restriction to the existing planning permission granted for the erection of a detached bungalow and two-storey glazed turret by Thanet District Council under ref: F/TH/07/2007.'' They wish to be able to use the loft (currently used for storage) over a large part of the principal ground floor accommodation of the property as presently constructed for residential purposes. The relevant restriction (one of 6 which are set out fully below), has the effect of restricting any building on the land to a bungalow with accommodation on one floor. The only objectors are Mr Johannes and Mrs Julie Kramer of Terns, 6 Hengist Road, the adjacent property to the south of the application land.

  2. The applicants say that the covenant, which was imposed in an indenture dated 2 June 1923, is now obsolete due to changes in the character of the neighbourhood, that the proposed use is reasonable, that lack of objections from others potentially entitled to the benefit implies their agreement to the required modification, and that no injury would be caused by it. They say that they are not in breach of any of the restrictions, that refusal to agree to the modification sought would impede the reasonable use of the land and that no practical benefit of substantial value or advantage is secured to the objectors. The objectors argue that the covenant is not obsolete, and the purpose for which it was imposed remains valid. The proposed use is not necessarily reasonable, and it may cause injury. Further, they state that the property as existing has not been constructed in compliance with the planning consent referred to in the application, and that the applicants are in breach of not only the restriction referred to in the application, but others too.

  3. Mr Martin Bromley, a retired police officer, appeared for the applicants as a litigation friend and produced a statement of case. He called Mr Hayden as a witness of fact. Mr Johannes Kramer appeared for himself and his wife. I carried out an accompanied inspection of the application land and Mr & Mrs Kramer's property immediately prior to the commencement of the hearing.

  4. A few days prior to the hearing (26 May 2010), Mr Kramer applied by email to the Tribunal to adduce additional evidence relating to the distance that the applicants' property had been built from Hengist Road, and the fact that he now understood there was an intention to use part of the property as bed and breakfast accommodation. In the light of the late application, and the fact that not only was there insufficient time (with the intervening bank holiday) for the applicants to object or to provide a response, the application was refused. I explained at the commencement of the hearing that the parties must rely, and were able to expand upon, the submissions that had already been made, but could not introduce new evidence or arguments for which the other party had not received reasonable notice.


  5. From the evidence, and the accompanied inspection I undertook of the application land, the objectors' property and the immediately surrounding area on the morning of the hearing, I find the following facts. Hengist Road is a private cul-de-sac on the western fringes of Birchington, running southwards from the western end of the vehicular section of the seafront esplanade at its junction with the pedestrian promenade. The Waves is the first property on the right on entering the road and comprises a recently constructed detached principally single-storey dwelling with cream rendered elevations under tiled roofs. It incorporates, to the north-eastern corner, a two-storey turret containing a staircase leading from a lobby off the kitchen/lounge/dining room area and gives access to the flat roof and balcony over that accommodation, and to double French doors leading into the loft storage area over the accommodation that contains 6 bedrooms, a study, 4 bath/shower rooms and a cloakroom. There is an attached garage to the southern elevation and gardens to the front, north side and rear.

  6. The objectors' property, 6 Hengist Road, lies immediately to the south of the application land, and comprises a modern detached two-storey and recently extended brick and tiled dwellinghouse with garage. Immediately beyond that house is the dinghy park serving the Minnis Bay Sailing Club which is not accessed of Hengist Road. On the opposite side of the road are three modern detached two storey private dwellings, and beyond that a secluded detached bungalow constructed, it is understood, in the 1930s at around the same time as the bungalow which was on the application land, and which the applicants' current property has replaced. Between the northern side boundaries of the applicant's property, and the first house on the opposite side of Hengist Road, and the esplanade (known as The Parade) is an area of public open space. To the west of the entrance of Hengist Road is the entrance to the sailing club, the Minnis Restaurant and a large car park.

  7. The total area of land conveyed in the original transfer of 12 May 1920 was described by reference to a plan attached to an indenture dated 20 August 1915. Part of the land, shown on the plan attached to the 1920 conveyance was divided into plots, of which the application land was plot 11, and the objectors land occupies part of the designated plots 16 & 17, and part of what was intended to be a spine road serving all the proposed dwellings. In about 1935 Birchington Improvement Company was wound up and the remaining land was sold to the local council (now Thanet District Council). The council then, in 1982, sold part of the land to Minnis Bay Sailing Club, and in 1997 sold The Minnis Restaurant to private individuals who then sold it on to EHJ Limited of Canterbury in 2003. The land which now contains the objectors' property was sold in 1986 and the Kramers acquired it in 1998.

  8. The applicants are dispute with the local planning authority over certain aspects of the property as constructed which do not comply with the amended plans submitted to Thanet District Council on 21 February 2007 and forming part of the consent F/TH/07/2007 granted by them on 28 February 2007. An Enforcement Notice was issued by the council on 21 May 2008, and as a result, the applicants submitted a retrospective application for the property as constructed, under reference F/TH/08/0858, which was refused on 5 September 2008. An appeal was lodged, and on 23 January 2009 the inspector in his formal decision stated:

    ``....in exercise of the powers transferred to me, I direct that the requirements in paragraph 5 of the [enforcement] notice be varied by deleting the words `Demolish the Building' and by substituting for them the words `Remove the roof over the entire building and replace it by a roof of the precise design shown on the revised drawing received by the planning authority on 21 February 2007.' Subject to that variation, I direct that the appeal be dismissed...''

    The restrictions

  9. An indenture made 2 June 1923 between the Birchington Improvement Company Limited (1) and Frank Harbrow (2) and Elsie Harbrow (3) imposed restrictions on the application land with the words:

    ``... and the Purchasers do and each of them doth...

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