Submissions on ground (aa)
32.Mr McCreath submitted that the restriction (assuming it is enforceable) impedes a use of land which has planning consent and is therefore reasonable. The objectors had claimed that the applicant bought the Property knowing of the restriction so could not now say it impedes a reasonable use. But, as stated in Re Bass Limited’s Application (1973) 26 P&CR 156, at 158, the question must be considered on the assumption that the covenant does not exist.33.The issue is whether impeding the use secures practical benefits of substantial value or advantage to the objectors. Mr McCreath suggested that the Tribunal must consider this by reference to what would happen if modification was refused. In this case the 2017 consent would be implemented to provide a single house of greater footprint and mass, which would be more visible to the objectors from the access area than the house in the development. The restriction provides no limit on the size or location of a single dwelling and the difference which would be made by modification to allow the development is a smaller house with the addition of a single storey bungalow at the back of the site where it could have no impact on the objectors.34.The benefits claimed by the objectors had all been addressed in Mr Dickinson’s evidence. The fears over inadequate parking provision for the development were unfounded. The parking provision is sufficient for everyday use and there is no evidence of any current difficulty when temporary additional parking is required. Mr Smith’s method statement would be followed to mitigate any problems during the construction period, even though the restriction does not protect the beneficiaries from construction and, moreover, similar issues would arise in constructing a single dwelling.35.The covenant in the 1957 conveyance that the purchaser of Shincliffe would pay a one third share of the expense of maintaining the access area gave rise to the objectors’ concerns about bearing a share of the additional cost of maintenance created by vehicles from a second dwelling at the Property. This was a positive covenant and Mr McCreath submitted that it is not clear that it is binding on the successors in title to Shincliffe, nor how it would be enforced as the access area has no known owner. In any event, the increased use and need for maintenance arising from the bungalow would be nominal. No repairs have been required during Mr Dickinson’s time at the Property and this is an unrealistic concern, but should it arise it would be dealt with in a neighbourly way. 36.The objectors claimed that the development would affect their outlook when they left or entered their property, but had commented during the site inspection that at least the view of the church tower would be unaffected. Even if the outlook from the access area was sufficiently good to be a practical benefit, which was not clear, any change would be similar if the single dwelling in the 2017 consent was built.37.Turning finally to the perceived benefit of preventing a precedent for future intensification of development in surrounding properties, Mr McCreath referred to the plots numbered 12, 14 and 16 in the 1957 conveyance, which may also be burdened by the restriction. A modification for the Property would create no precedent for those plots since the crucial difference is that each of them adjoins Shincliffe, which the Property does not, and any impacts of development in those plots would be experienced in close proximity. Permitting this development would not change the character of the area, which already has a mix of densities. The planning officer’s report considered that overall the development conserved the character of the conservation area.38.In conclusion Mr McCreath submitted that ground (aa) was satisfied since the restriction, in impeding the development, prevents a reasonable use of the Property and secures no practical benefits to the objectors.