[2024] UKUT 189 (LC)

In the case of Re Fermyn Wood [2018] UKUT 0411 (LC) the Tribunal (Deputy President Martin Rodger QC and Mr Andrew Trott FRICS) identified four connected matters to be considered for an application under ground (a):

Although this application is for modification, not discharge, the same principles apply and I will now look at each of those four matters in the context of this application.

The reference in clause 4 of the 1973 conveyance to the “general character of the Estate as a high-class residential area” is in connection with the Vendor’s retention of “the right to release or vary any of the said restrictions or stipulations”. The mutual covenants of clause 3, “for the benefit of the owners or occupiers for the time being of the said land edged green on the said plan or any part thereof” do not have those words, but the words can certainly be understood to have relevance as the original purpose of the restriction.

It is not clear what exactly might be meant by the term “high-class residential area”, but I accept the point made by Mr and Mrs Pearce that plans and satellite views of the area show clearly the larger sized plots and lower density of development with the bounds of the Mellanvrane Lane Estate. I agree that an important part of the purpose of the restriction was to retain that lower density, and therefore the amenity of spaciousness.

It is helpful first to identify the extent of the benefited land within the wider neighbourhood. The 1973 conveyance identifies in recital 4) “the land edged green” as forming part of the “Vendor’s Mellanvrane Lane Estate”. At clause 3 the covenant to observe the restriction is stated to be “For the benefit of the owners and occupiers for the time being of the said land edged green…”. The boundary of the “land edged green” on the plan to the 1973 conveyance does not extend eastwards of the plots along Penina Avenue and therefore all of Wych Hazel Way to the east of the line is excluded from the benefit of the restriction. Although it is not completely within the line on the plan, it is not in doubt that the land on which No 16 stands does benefit from the restriction.

I was able to walk along the roads within the area defined as the Mellanvrane Lane Estate, and the roads to the east of it, notably Wych Hazel Way. I have also had the benefit of studying the plans provided by the parties. In the hearing I opened up a digital satellite map of the area, which I reviewed with the parties to allow them to identify and discuss any further development within and outside the Mellanvrane Lane Estate.

Within the Mellanvrane Lane Estate, in addition to the recent significant extension to a property at 26 Chichester Crescent, the parties agreed that there did appear to have been infilling at some point to a large plot at 15 Mellanvrane Lane with the two newer properties numbered 15A and 15B. These are chalet bungalows, built at a higher density than the neighbouring properties, which are larger and different in age and character from most of the estate.

However, the most noticeable changes to the character of the neighbourhood are in the immediate vicinity of Nos 14 and 16. Penina Avenue has a right-angle spur, at the top of the hill above No 18, where three pairs of two storey semi-detached houses, Nos 21 – 31 Penina Avenue have been built. These appear to date from the 1980s and are very different in character from the chalet bungalows. They look down over the back gardens of Nos 14, 16 and 18 Penina Avenue and are very evident from within the garden of No 16. They are less evident from the back garden of No 14, which sits at a lower level.

Also evident from the back garden of No 16 is the adjoining side elevation of No 3 Wych Hazel Way, one of the two houses built just outside the Mellanvrane Lane Estate boundary by infilling. Again, due to its lower level, the back garden of No 14 is not so dominated by the side elevation of No 16, but it does look straight across Wych Hazel Way at the recently built contemporary style two storey houses at Inner Tide Lane.

We do not have the benefit of a plan showing the full extent of the original Mellanvrane Lane Estate, in order to say conclusively whether the land on which Nos 21 – 31 Penina Avenue have been built was within the boundary of it. They seem not to have been part of the original development and they are of a very different character so it seems unlikely that they were.

What I can conclude from my inspection is that the character of the property, No 14, has not obviously changed since 1973 and nor has the character of the vast majority of the contemporaneous properties built within the area accepted by the parties to be the Mellanvrane Lane Estate. There have been some extensions and alterations, but the only instance of intensification by infilling with new dwellings appears to have been at 15 Mellanvrane Lane, where houses similar to Nos 14 and 16 were provided between houses of different character. By contrast the character of the wider neighbourhood above and behind the properties, in the wider Treninnick Estate, has changed considerably since 1973 by the continued extension of residential development at generally greater density.

Assuming, as I do, that the original purpose of the restriction was to retain lower density development, and therefore the amenity of spaciousness, within the Mellanvrane Estate, then that object has been achieved and continues to be achieved. Whilst the rear gardens of Nos 14 and 16 are now overlooked by more recent developments above and behind them, and the outlook from their gardens is towards newer houses at greater density, the fact that their gardens are generous and spacious gives them a valuable level of separation from those new developments. They do not have great privacy, but what amenity they do have is created and maintained by the size of their plots. The restriction ought not therefore to be deemed obsolete.

Mr Lackey was conscientious in seeking the approval of A J L Ltd to his plans and the fact that A J L Ltd gave their consent, as they say they have done for other modifications, is evidence that they continue to exercise some control over the restriction. It is not clear that A J L Ltd are exercising any particular discretion to achieve the object of the original restriction, but it is evidence that the restrictions in the First Schedule of the 1973 conveyance are still functioning rather than obsolete.

I was not made aware of any other material circumstances which would have the effect of rendering the restriction obsolete.

I determine that I have no jurisdiction to modify the restriction on ground (a) that it ought to be deemed obsolete.