Discussion
39.There is no suggestion that the restriction imposed by the 1957 conveyance of Shincliffe on the land retained by the vendor has been released. The inference from clause 3 of the 1957 conveyance is that the numbered plots there identified were still owned by the vendor and the restrictions were stated to be imposed for the benefit of those plots, which included the Property. Although the applicant formally reserves his position on the enforceability of the restriction by the objectors I will proceed on the basis that they are enforceable.40.This is a case where the objectors made clear that they did not object in order to obtain compensation from the applicant, but because they had genuine concerns over the development. They declined to indicate a provisional sum for compensation, which may perhaps have led to a negotiated release of the restriction, because they understood that the restriction in the 1957 conveyance was “for the benefit and protection of the land conveyed” and they felt strongly that they should be able to rely on that as a property right. The issues raised in the objections were not unreasonable and the fact that the applicant has commissioned an expert to produce a method statement for the construction period is some acknowledgement of that.41.It is unfortunate that the objectors did not fully appreciate the nature of an application for modification under s.84, and the importance of comparing what is proposed with what could realistically be expected to be done without the proposed modification. The applicant would be entitled to implement the 2017 planning permission and I am satisfied that he would be likely to do so if this application is refused. In that context the objectors’ concerns over impeded parking and damage to the access area during the construction period fall away, because constructing the single house in the 2017 consent would have the same impact. Concern over an altered outlook, towards the upper part of a one and a half storey house rather than the roof of the existing bungalow, would remain under the 2017 consent for a larger house.42.The concerns which arise from having a second dwelling on the Property are the prospect of additional temporary parking in the access area and the prospect of bearing a one third share of additional wear and tear on that area. The approved plans make provision for two cars to be parked at the bungalow and for a passing area in the new drive which would be available for a temporary additional vehicle. At the site inspection Mr Dickinson indicated to us where the parking would be located. In my view that is an adequate provision and answers the concerns of the objectors over parking, but I also accept Mr Dickinson’s evidence that it is not unusual for the access area to be used for occasional parking by a contractor visiting any of the three properties that currently use it and that this causes no problem. There is no reason to suppose that such occasional parking would become a problem as a result of the additional dwelling.43.I form no view on Mr McCreath’s submission that it is hard to see how the covenant in the 1957 conveyance requiring the purchaser of Shincliffe to bear a one third share of the cost of maintaining the access area remains enforceable. Whether strictly it is enforceable or not the additional wear and tear on the surface caused by the comings and goings of the occupiers of one additional house is unlikely to be significant. If and when repair to the access area is required, it is reasonable to assume that the neighbours would share it between them equitably. During my inspection I noted that the surface of that area is in good condition with no evidence of previous patch repairs. Mr Dickinson described the use which has been made of the area during his time at the Property, which has included construction traffic to the Property and to Shincliffe and frequent use as a turning area by vehicles which have taken a wrong turn. The surface has therefore stood up over time very well and I would not expect an additional two cars at the bungalow to make any difference to it. Mr Dickinson has offered to underwrite the cost of a complete new surface should his construction work make repair necessary and this will be of comfort to the objectors.44.The objectors’ concerns over creating a precedent for increasing density are understandable but in my view do not amount to a practical benefit in this case. The planning officer stated in her report that each application is determined on its own merit and the same applies to any application to this Tribunal for modification of a restriction. Should a similar application be made for any of the other numbered plots in the 1957 conveyance the context would be that of immediate neighbours, which is not the case here, so the considerations would be different.45.S.84(1)(B) requires the Tribunal, in determining whether a restriction ought to be modified, to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. Evidence on this was provided by the applicant within the report of the planning officer who recommended the grant of planning consent. 46.The Tribunal is also required to take into account the period at which and context in which restriction was created or imposed and any other material circumstances. The covenant was entered into 65 years ago, when generous sized plots of land from the former Ufford Place Estate were being sold off for development. The planning policy framework for the area would have been very different at that time. Councils are now required to deliver a sufficient supply of homes and the planning officer’s report explains that infill development represents an important source of new small-scale housing supply and is an important contribution to the district’s overall housing supply. The application for this planning consent was tested and modified to ensure compliance with the relevant planning policies in respect of the conservation area and the residential amenity of neighbouring properties.