[2024] UKUT 189 (LC)

Mr Lackey says that there have been substantial changes in the character of the neighbourhood since the restriction was imposed in 1973 which make it obsolete. The restriction was imposed at a time when the development of the Mellanvrane Lane Estate was at an early stage and significant development has taken place in the 50 years since. In particular, land opposite the application site on Wych Hazel Way has been developed recently as Inner Tide Lane, land adjoining the application site on Wych Hazel Way has been infilled with two dwellings, Nos 3 and 5, and 11 Wych Hazel Way has been extended and converted from one into two dwellings. Also, 26 Chichester Crescent, which is on the corner with Penina Way opposite No 14, has almost doubled in size recently by a ground floor extension and provision of first floor accommodation.

In order to comply with paragraph 2 of the First Schedule, Mr Lackey has obtained approval of his plans from Jon-Claude Luxon, managing director of A J Luxon Ltd, the family company that was the Vendor in the 1973 conveyance and which continues to carry out development to the surrounding area. The current fee is £250 and approval was confirmed by a seal of AJL Ltd stamped on to the plans with planning permission. Mr Luxon told Mr Lackey that approvals had been granted for around 15 properties to enable modifications.

In his application, Mr Lackey provided copies of the title documents for No 14, which included the 1973 conveyance and a plan attached to it. A copy of the plan is provided below, showing (as the outer line) the “land edged green”. At the top the line cuts through the plot on which No 16 is built, suggesting that it is not complete, and the recital at 4) refers to the land edged green forming “part” of the “Vendor’s Mellanvrane Lane Estate” so it is not expressed to provide a complete definition of the Estate. However, the line on the right hand side appears to follow a natural feature, such as a track or ditch, along the eastern boundary of the lower plots, which suggests that it is the defined outer edge of the Mellanvrane Lane Estate on that side.

In the charges register of the title document reference is made to covenants on the part of A J L Limited (the Vendor in the 1973 conveyance) in a conveyance of 14 Wych Hazel Way dated 17 July 1975 (“the 1975 conveyance”) in which it is also the Vendor. The details are set out in the schedule of restrictive covenants to the title document for 14 Penina Avenue as follows:

The restrictions and stipulations in the Second Schedule (referred to in the extract above) are the same as those in the First Schedule to the 1973 conveyance. Confusion has arisen in two respects from the reference to the 1975 conveyance in the title document. Firstly, it concerns a property known as 14 Wych Hazel Way, which does not have an obvious connection with 14 Penina Avenue. Secondly it refers to the Trenninick Estate rather than the Mellanvrane Lane Estate as named in the 1973 conveyance.

Mr and Mrs Pearce say that development of the Mellanvrane Lane Estate took place on one part of land originally known as Treninnick Farm and that Mr Lackey is confusing the Mellanvrane Lane Estate to which the 1973 conveyance referred with the much wider area known generally as the Trenninick Estate. Within that wider area, outside the borders of the Mellanvrane Lane Estate, significant new developments have taken place over the last 20 to 30 years at higher densities. Mr and Mrs Pearce say that when they first moved to No 16 in 1980 the Mellanvrane Lane Estate comprised approximately 50 dwellings located on Penina Avenue, Chichester Crescent, Gresham Close, Mellanvrane Lane and part of Trevemper Road. They have indicated that area with hatching on the plan below, with the lower eastern boundary following the same line as that in the plan attached to the 1973 conveyance.

Mr Lackey does not dispute that the hatching identifies the Mellanvrane Lane Estate at that date, but he says that the proposed dwelling fronts on to Wych Hazel Way, has been designed to be in-keeping with the aesthetic of Wych Hazel Way, and should be considered in the context of the wider Trenninick Estate.

Mr and Mrs Pearce say that the words in clause 4 of the 1973 conveyance (which for their property were contained in a conveyance dated 18 December 1970) make it clear that the restriction was imposed to protect the Mellanvrane Lane Estate as laid out in the original plan as a “high class residential area”. This is not mentioned in the covenants in the 1975 conveyance, which refers instead to “the general character of the Trenninick Estate”. They point out that the density of development to the east of the hatched area, which includes Wych Hazel Way, is higher and the size of plots smaller. They say that within the hatched area the only changes made to properties have been alterations and extensions of the original single dwelling house, with no additional built form to undermine the prevailing character of the Estate. The restriction has protected the very different character of the Mellanvrane Lane Estate and is therefore not obsolete.

Mr and Mrs Pearce say that they chose their property in 1980 because of the layout and space afforded to each plot, providing green space and privacy for the residents. Should modification be made to allow Mr Lackey to build in his garden then this would set a precedent for other properties also subject to the covenant to seek to build in their gardens. Mr Lackey says that since very few properties have boundaries to two roads that is not a real issue, but Mr and Mrs Pearce say that there have been planning applications made to develop back land, for example by demolition of garages to provide access, although none has been successful.