[2024] UKUT 0414 (LC)

Mrs Alison Hunt explained why she and her family, as executors of her mother’s estate, objected to the application. Her brother Andrew Hunt had provided a witness statement but was unable to appear at the hearing due to ill health. His evidence was short, and substantially the same as that of Mrs Hunt, so I ruled that it would be admitted on the papers.

The thrust of the objection was that, notwithstanding the grant of planning permission, the redevelopment scheme would not be a reasonable use of land in an agricultural area within the Chiltern Hills Area of Outstanding Natural Beauty (“AONB”). AONBs are now known as National Landscapes, but I will use the term AONB for consistency with the evidence. Mrs Hunt did not object to the conversion scheme, which she considered took into account the design guidelines for the AONB and was in line with the restriction. By contrast, she considered that the redevelopment scheme had an unsympathetic scale and design, which would be visually intrusive, create light pollution, and lead to intensification of business use. It would be the first stage of urbanisation of land on the north side of Icknield Way.

Mrs Hunt was keenly aware that the applicant and its predecessors had, over the years, increased their business use at the application site - initially without planning permission, and then with certificates of lawful development. Once lawful business use at the site was established, planning permission for conversion and then redevelopment had become easier for the Council to accept and approve. She feared that if this application was allowed there would, in due course, be further redevelopment proposals for the site, including residential development of the application site and the bungalow plot.

The objectors had grown up at Drayton Holloway and still continued to enjoy the peaceful outdoor lifestyle made possible by the paddock and the field. Mrs Hunt explained that if the application for discharge or modification of the restriction was successful, the impact on the objectors would be a loss of amenity in their enjoyment of the field as a natural and unspoilt area for family recreation in the open countryside. This would arise from loss of privacy, due to overlooking by people looking out from the office buildings and walking in the grounds; loss of tranquillity, through increased noise from more people, cars and general activity at the buildings; light pollution from the buildings when used after dark, in winter especially. The objectors felt that being able to prevent this was a substantial benefit to them.

Mr Power submitted that the restriction ought not to be deemed obsolete under ground (a) because the character and nature of the application site and neighbouring land on the north side of Icknield Way remained primarily agricultural. The permitted business use at the application site had not profoundly altered its character and the original purpose of the restriction, in restraining the size and type of buildings, continued to be achieved.

With regard to ground (aa) Mr Power submitted that the many practical benefits secured to the objectors by the restriction were substantial and, in any event, such that money would not be an adequate compensation for their loss. He relied on the decision of the Tribunal (Judge Cooke and Mr Mark Higgin FRICS) in Blue Angel Properties Ltd v Jenner [2020] UKUT 0360 (LC) in which it was said at [25]:

“25.

…Crucially therefore, if the covenants, in preventing the proposed development, give Mrs Jenner any practical benefits of substantial value or advantage, then they cannot be discharged or modified. If they do not, then they can be discharged or modified only if the applicant can show that money will be an adequate compensation for any loss she will suffer from that discharge or modification.”

In their decision the Tribunal found that in protecting the objector from potential loss of amenity the covenants did confer benefits of substantial advantage and value. But they said at [133]:

“133.

In case we are wrong about that, we would add that the practical benefits of the covenants in preventing the proposed development, to Mrs Jenner – and specifically to Mrs Jenner who has lived here for decades and raised her family here – could not be compensated by money.”

It was accepted by the objectors that the redevelopment scheme would cause no loss of market value to Drayton Holloway, or the field.