[2024] UKUT 0414 (LC)

It was accepted by the objectors that the redevelopment scheme, which had been through the scrutiny of the planning system, was a reasonable use of the application land. It was accepted by the applicant that that use is impeded by the restriction.

The case on behalf of the objectors was that the redevelopment scheme, by comparison with the conversion scheme, would lead to a loss of amenity in the enjoyment of their field, arising from the visibility of an intrusive modern building, loss of privacy from overlooking by people inside the building and in the grounds, and disturbance from the activity of more people and more cars at the site. It was not submitted that this loss of amenity would create an associated loss of value. On the contrary, it was submitted that because a monetary value for compensation cannot be attributed to the potential loss of amenity the application under ground (aa) should fail.

The case for the applicant was that the redevelopment scheme would reduce the volume and floor area of buildings on the application land which, together with the careful attention to design features and the use of subtle colours, would be a visual improvement over the conversion scheme. The essential difference between them in terms of potential light spill was a small amount of additional glass above existing eaves height, through which light would be visible for a few hours of darkness in winter. Mrs Hunt had confirmed that the field was not used much after dark. Daylight visibility of the buildings from the field would diminish over time as the planting matured, although it was accepted that the objectors’ trees, which had been incorporated into Professor May’s future visualisations, were unlikely to grow.

It was further submitted that loss of privacy and disturbance are not amenity issues which should be considered relevant for an agricultural field which lies beside a busy road and has a footpath crossing it. In any event, even with the conversion scheme, once the close boarded screening fence was removed there would be similar activity within the grounds. Should the Tribunal find any marginal loss of amenity would be suffered by the objectors, a small amount of money could be awarded in compensation.

Counsel for the parties referred me to several authorities where the meaning of the words “secure” and “any practical benefits” had been considered at length. But in the end each case stands on its own facts and must be decided in the light of those. In this case Professor May acknowledged the possibility that the redevelopment scheme might cause a very marginal loss of amenity to the objectors in their enjoyment of the field. At that stage he had still anticipated that the objectors’ trees would, within 10 years, provide mitigation of visual intrusion by screening.

It was apparent during my inspection that the visibility, and therefore impact, of the current buildings is mitigated largely by the close boarded security fence. Removal of this fence is what will expose the objectors to full visibility of the redevelopment scheme, or the conversion scheme, until any new planting has matured. The restriction does not secure retention of the fence, but it does constrain the type of building that would be visible in its absence. I consider that to be a practical benefit secured to the objectors, although not a substantial one. The essential difference between the two schemes arises from the modern design and flat roof of the redevelopment scheme. The buildings would have a greater height of glazing than the conversion scheme and a starkly modern appearance on high ground in a rural setting. Both schemes would involve business use and activity at the application site and I do not consider that preventing any marginal difference between the levels of activity could be described as a practical benefit to the objectors in their enjoyment of the field.

The visualisations in the design and access statement for the redevelopment scheme did not show any trees or shrubs in situ, but the approved soft landscaping drawings provided for a total of 13 trees in the space between the buildings and the field boundary, with nine of them around the north west corner of block B - where it would be most visible walking up the field from Drayton Holloway. The mix included hazel, whitebeam, hornbeam and lime, the combination of which would, in perhaps 10 – 15 years, begin to screen the visual impact of the new buildings when viewed from the field.

The nature of the fence along the boundary with the field is not specified in the approved landscaping scheme, but the objectors have attempted with their own planting scheme along that boundary to provide themselves with mitigation. The hedge plants survive and will in due course be a useful screen at lower level along the boundary. It is unfortunate that their trees have died since the objectors would have had the benefit of screening a few years earlier than with any planting done by the applicants as part of the redevelopment scheme.

The applicants were seeking either discharge or modification to permit the redevelopment scheme, but I do not consider that it would be appropriate to discharge the restriction. Modification to permit a carefully specified scheme with 17 conditions attached is a measured step which neither precludes, nor sets a precedent for, any future applications on this land or other parcels of land at Beeches Farm which are subject to the restriction.

Before exercising discretion to modify the restriction I am required by s.84(1B) to take into account “the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.” When the restriction was imposed 65 years ago the context of planning policy was very different. It is evident from decisions of the Council made in respect of the application site in recent years that the transition to non-agricultural use has been found acceptable. In the report recommending that planning permission be granted for the redevelopment scheme the delegated officer explained that redevelopment of a previously developed site was acceptable within the national and local policy framework, subject to the 17 conditions attached to the permission. I am therefore satisfied that the pattern for granting planning permission is established and I have been made aware of no other material circumstances.

The applicant had considered the possibility that a sum of money might be awarded in compensation to the objectors for a marginal loss of amenity but did not propose any particular sum. Mr Kempton said that the loss of amenity which would be suffered by the objectors was not of the kind which could be quantified by any diminution in market value, and Mr Power submitted, relying on Blue Angel Properties, that this meant the Tribunal did not have jurisdiction to discharge or modify the restriction.

Mr Power’s proposition is not correct, and nothing in Blue Angel Properties supports it.It is possible to assess compensation for a loss of amenity even if the loss of that amenity might not be recognised by a diminution in market value. If the protection afforded by the restriction was of substantial value or advantage, ground (aa) would not be made out. If the protection was not of substantial value or advantage it would be necessary to determine whether its loss would be capable of being adequately compensated for by a payment of money. I must therefore form my own view as to whether the loss of amenity I have described is capable of being compensated in money and, if it is, what sum would be adequate compensation.