Discussion
21.Applications under ground (aa) are often formulated around the questions posed in Re Bass Ltd’s Application (1973) 26 P&CR 156. Whilst no substitute for the statute, it is convenient to deal with the application by considering those questions.22.The first question is whether the proposed ‘user’ (using the term in the Act, but which refers to use rather than the person using) is reasonable, which I have assumed is the construction of a house on the application land. While there is no current detailed planning permission, there is an expired outline consent. And the original building scheme envisaged one house per plot, although Mr Wagg bought two plots as one. In answering the first question in Re Bass in its widest sense, the erection of a house in a residential area seems to me to be a reasonable one.23.The second question is whether the restriction impedes that user; it is common ground that it does.24.The third question is whether the restriction secures to the objectors practical benefits. In my view it plainly does. While many of the things that the objectors complain about could equally occur without the restriction being breached, for instance a very large extension of Mrs Sutton’s existing house, that seems to me to be improbable. It is clearly a practical benefit to the objectors to be able to prevent a second house being built nearer to their own property.25.The next question is whether those practical benefits are of substantial value or advantage. Here the application runs into difficulties. The problem for Mrs Sutton is that she has applied for a blanket discharge. As the experts now agree, that makes it difficult to assess the effect on the objector’s property. There is no current planning permission, and by discharging the restriction the Tribunal would leave the objectors liable to whatever planning permission Mrs Sutton, or anyone to whom she sold the land, could obtain. That might be something along the lines of the previous outline consent, or the later proposal. But it might equally be for something else. It follows that the issue of substantiality, which the applicant must prove, has not been made out.26.That being the case, the application must be refused.27.At the hearing, Mrs Baines submitted that I should discourage any further applications to the Tribunal, if Mrs Sutton were to reapply with firmer proposals and a valid planning permission, as the tribunal did in Re Snooks’ Application [2014] UKUT 623 (LC) at [38].28.Property disputes between neighbours are invariably stressful for the parties, and whilst I acknowledge and understand the objectors’ desire to avoid further litigation, I do not consider it appropriate to close the door to any further applications. In Re Snook, the application was also unsuccessful on other grounds, which is not the case here. However, that should not be construed as even a provisional view as to any future application which would, as always, be determined on its merits.