Tillotson, Re: 2 Middleton Drive, Court of Appeal - Lands Tribunal, June 06, 2008, [2008] EWLands LP_56_2006

Resolution Date:June 06, 2008
Issuing Organization:Lands Tribunal
Actores:Tillotson, Re: 2 Middleton Drive

LP/56/2006 LANDS TRIBUNAL ACT 1949 RESTRICTIVE COVENANT modification proposed detached house at entrance to exclusive cul-de-sac practical benefits of substantial value or advantage outlook effect upon amenities precedent integrity of system of covenants application refused Law of Property Act 1925, ss 84(1)(aa) and (c) IN THE MATTER OF AN APPLICATION UNDER SECTION 84 OF THE LAW OF PROPERTY ACT 1925 BY PETER TILLOTSON and JEAN ELIZABETH TILLOTSON Re: 2 Middleton Drive, Higherford, Nelson, Lancashire BB9 6BA Before: A J Trott FRICS Sitting at Burnley Combined Court Centre, Hammerton Street, Burnley, Lancashire BB11 1XD On 18 and 19 March 2008 Richard Moore, instructed by Smith Sutcliffe, for the applicants Richard Oughton, instructed by Southerns, for the objectors © CROWN COPYRIGHT 2008 The following cases are referred to in this decision: Shephard v Turner [2006] 2 EGLR 73 Gilbert v Spoor [1983] Ch 27 Re Solarfilms (Sales) Limited's Application (1994) 67 P & CR 110 Re Mitman-Kearey's Application (2007) Lands Tribunal LP/86/2006 (unreported) Re Hunt's Application (1997) 73 P & CR 126 Re Lee's Application (1996) 72 P & CR 439 Re Dobbin's Application (2006) Lands Tribunal LP/59/2004 (unreported) Stannard v Issa [1987] 1 AC 175 Re Felton Homes Limited's Application (2004) Lands Tribunal LP/3/2003 (unreported) McMorris v Brown [1999] AC 142 Re Bass Limited's Application (1973) 26 P & CR 156 The following case was referred to in argument: Re Tarhale Limited's Application (1990) 60 P&CR 368 DECISION Introduction

  1. This is an application by Peter Tillotson and Jean Elizabeth Tillotson (the applicants) under section 84 of the Law of Property Act 1925 seeking the modification of two restrictive covenants affecting freehold land at 2 Middleton Drive, Higherford, Nelson, Lancashire BB9 6BA (the application land). The first restriction was imposed under a conveyance of the application land and other land dated 16 July 1935 (the 1935 restriction). It states that: "The Purchaser shall not erect on the plot of land edged red on the said plan any building other than one detached dwellinghouse with outbuildings stables or garage and of an annual value of not less than £30."

  2. The second restriction was imposed under a conveyance of the application land and other land dated 17 September 1971 (the 1971 restriction). It states that: "The Purchasers ... will not at any time hereafter erect more than one detached dwellinghouse with outbuildings and garages on the land shown as plot number one on the said plan and not more than two dwellinghouses with outbuildings and garages on the land shown as plot number two on the said plan..."

  3. The application land includes the whole of the land edged red in the 1935 conveyance (the red land) except for a small salient of land to the north that was retained by the owner of 6 Middleton Drive when he sold the red land and other land in 1971. A garage has been constructed on this salient and forms part of No.6. The application land also includes the whole of plot one as shown on the 1971 conveyance plan (which itself includes the majority of the red land) together with a 10 metre wide strip of the adjoining plot two as shown on that plan. Part of the proposed house is located on the red land with the majority of the remainder being located on plot one of the 1971 conveyance. Some of the proposed garage is located on plot two of the 1971 conveyance.

  4. The proposed modification would enable the applicants to construct a second detached house on the application land immediately to the south of the existing house known as 2 Middleton Drive. Planning permission to construct the new house was granted on appeal on 30 July 2005. The applicants rely upon paragraphs 84(1)(aa) and (c) of the 1925 Act.

  5. There were four objections to the application in respect of the 1935 restriction and one objection to the application in respect of the 1971 restriction.

  6. Mr Richard Moore of counsel appeared on behalf of the applicants and called Mr Peter Tillotson, Mrs Jean Elizabeth Tillotson and Mr Geoffrey John Hook as witnesses of fact. He called Mr Roy Wightman MRICS, Head of the Survey and Valuation Department of Messrs John W Dinsdale, Chartered Surveyors, as an expert witness.

  7. Mr Richard Oughton of counsel appeared on behalf of the objectors. He called Mr Philip John Kelly FRICS, a partner in H W Petty and Co, Chartered Surveyors, as an expert witness and Mr David John Atkinson Taylor and Mr Andrew Macpherson Buchanan as witnesses of fact. He also called three of the four objectors against the application in respect of the 1935 restriction, namely Mr Jack Alexander Walne (3 Middleton Drive), Mr Geoffrey Brian Wessell (5 Middleton Drive) and Mr Frederick Charles Green (7 Middleton Drive). (The fourth objectors, Mr Colin Birchall and Mrs Christine Birchall, of Middleton Laithe Farm, were unable to attend the hearing.) Finally, he called the objectors against the application in respect of the 1971 restriction, Mr Steven William Blackadder and Mrs Gillian Mary Blackadder (6 Middleton Drive). Facts

  8. Middleton Drive is a quiet and exclusive residential cul-de-sac located at the edge of Higherford towards Blacko with access on to the A682 Gisburn Road. It comprises 9 residential properties including three large bungalows (Nos.3, 10 and 12), four detached houses (Nos.2, 6, 8 and Middleton Laithe Farm) and a pair of semi-detached houses (Nos. 5 and 7). The latter lie parallel with, rather than perpendicular to, Middleton Drive and each has its own driveway. There is no property known as Nos.1 or 4 Middleton Drive. The dwellings in Middleton Drive are generally set in large, well maintained grounds. The drive slopes upwards from Gisburn Road and many of the properties enjoy distant views of Pendle Hill and other high ground to the west and south. It is a prestigious location and the expert witnesses agreed that Middleton Drive commands premium values.

  9. The experts agreed the following values of the objectors' properties in Middleton Drive: No.3: £450,000 No.5: £375,000 No.6: £662,500 No.7: £375,000 Middleton Laithe Farm: £775,000

  10. The application land lies to the east of the entrance of Middleton Drive at its junction with Gisburn Road. 2 Middleton Drive was built in the early 1970s and is a substantial split level four bedroom detached house of brick construction under a pitched tile roof. There is a separate double garage to the west. The existing house is set back from Middleton Drive in the centre of a mature plot surrounded by well established trees, hedges and shrubs. At the south of the application land, adjoining Gisburn Road, is an area of grass which has been enclosed with a chain and post fence. The applicants hold a possessory title of this land. The same area of land (amounting to 850 square yards) was dedicated by the then freeholders, James and Emily Walton, to Lancashire County Council on 31 January 1934 with the intention that it form part of a widened Gisburn Road.

  11. The proposed new detached house is a two storey, three bedroom building with an attached double garage to the east. It has natural stone walls and window surrounds under a blue slate pitched roof (including the garage). There is a separate driveway that runs from the existing driveway of 2 Middleton Drive around the south of the new house to the entrance of the garage. The front of the house faces west towards Middleton Drive. At its closest point the new house would be some 3 metres from the existing dwelling at No.2. The boundary between the two buildings, which at this point is in the form of a retaining wall, is 1 metre from the side (southern) elevation of the existing dwelling. That elevation would overlook the new garage which is 5 metres distant. The kitchen and bedroom three of the new house would overlook the driveway and garage of No.2. The new house would occupy the entire plot of No.2 to the south of the existing building including the land for which the applicants hold a possessory title.

  12. The land which now forms Middleton Drive was originally in the single ownership of Mr Arthur Stowe. After he died his personal representatives (and their successors in title, James and Emily Walton) sold off the land in individual plots starting (for present purposes) on 22 March 1929 with the sale of what is now known as 8 Middleton Drive. The parties agreed that the sale of these plots did not constitute a building agreement. Mr and Mrs Walton sold the land that is subject to the 1935 restriction on 16 July 1935. The applicants accepted that the objectors, ie the owners of 5 and 7 Middleton Drive and Middleton Laithe Farm, enjoyed the benefit of the 1935 restriction. (At the end of the hearing Mr Oughton acknowledged that the owner of 3 Middleton Drive, Mr Walne, did not have the benefit of this restriction.)

  13. The personal representatives of Mr Stowe sold 6 Middleton Drive on 13 July 1929. The conveyance contained a covenant by the vendors that they and their successors in title would not erect more than one detached dwelling on the adjoining plot to the south, ie. the red land. On 31 August 1964 the application land and other land was sold to Mr Robert Reed. Mr Reed had already purchased the plot of 6 Middleton Drive on 18 December 1951. The unification of these two titles meant that the 1929 restriction was extinguished as between the red land and 6 Middleton Drive.

  14. On 17 September 1971 Mr Reed sold the application land and other land to the south to Mr David Taylor. The land was divided into four areas, one of which was subdivided into two plots. Plot one included the majority of the application land and was subject to a restriction not to erect more than one detached dwellinghouse. There was a separate restriction not to erect more than two detached dwellinghouses on plot 2. Mr Taylor sold the majority of plot two in 1972 (except for the 10 metre wide strip referred to in paragraph 3 above) and imposed...

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