Nigel Briant v Hugo Baldacchino

Introduction

1. The applicant, Mr Nigel Briant, wishes to redevelop his property, Smugglers Hyde, 47 Brook Lane, Corfe Mullen, Wimborne, Dorset, BH21 3RD (“the application land”). He has obtained several planning permissions that would enable him to do so in various ways but in each case he is prevented from doing so by a restrictive covenant that was imposed under a transfer of the application land on 2 September 1987 in which the transferee covenanted: “Not to erect any further building of any kind on the property hereby transferred save for an extension to the existing garage and then only in accordance with plans first submitted to and approved in writing by the Transferors (such approval in respect of plans for any garage extension not to be unreasonably withheld).”

2. At the date of the transfer Smugglers Hyde, the existing dwelling on the application land, comprised a two-storey partially thatched cottage with a large garden. The transferors, Mr and Mrs Stanley, retained some land at the south of the site which had the benefit of the covenant under the 1987 transfer. Mr and Mrs Stanley obtained planning permission for the development of the benefited land by a single dwelling. This house, known as Kestor, 49 Brook Lane, was built in 1989 and purchased by Mr Hugo Baldacchino in April 2014.

3. Smugglers Hyde was badly damaged by fire in 2007. It was purchased by Mr Briant in March 2009. Mr Briant subsequently demolished parts of the building but some of it remains, including the gable end with a pitched tiled roof which is closest to Kestor.

4. Since he purchased Smugglers Hyde Mr Briant has made 24 planning applications for residential development, 11 of which were granted (including one on appeal), 12 refused and one withdrawn.

5. Having failed to reach agreement with Mr Baldacchino about the redevelopment of Smugglers Hyde, Mr Briant applied to the Tribunal on 24 April 2019 under section 84 of the Law of Property Act 1925 for the modification of the restrictive covenant to enable one or more of the following planning permissions to be implemented, each of which was for the development of a single detached house: (i) Reference A1F: 3/15/1189/FUL, granted 5 April 2016 This planning permission was implemented upon (i) satisfaction of pre-commencement conditions on 24 October 2018 and (ii) a material operation comprising the partial demolition of the existing house on 12 November 2018. (ii) Reference A2F: 3/18/2273/FUL, granted 19 October 2018 (iii) Reference A3R: 3/18/2054/FUL, granted 24 September 2018 (iv) Reference B1F: 3/18/2946/FUL, granted 13 December 2018 (v) Reference B2F: 3/19/0382/FUL, granted 12 April 2019.

6. Planning permissions A1F and A2F are both for single houses at the front (west) of the application land fronting Brook Lane. Both permissions would allow the development of a second house at the rear (east) of the property under planning permission A3R which would have a separate access onto Brook Lane at the north west of the site.

7. The remaining planning permissions, B1F and B2F, would allow the development of two houses in a configuration where each house fronts Brook Lane. The house permitted under B1F would adjoin Kestor, while B2F would be located further north.

8. The possible combinations of two houses for which Mr Briant seeks modification of the restriction are therefore either A1F or A2F with A3R, or B1F with B2F. It is not sought to build either B1F or B2F with A3R, even if that was physically possible.

9. Mr Briant seeks modification of the restriction under grounds (a), (aa) and (c) of section 84 of the Law of Property Act 1925. Although he did not formally abandon grounds (a) and (c), Mr Briant did not pursue them at the hearing.

10. Mr Baldacchino objected to the application on 4 July 2019. It is accepted that he has the benefit of the restriction.

11. Mr Andrew Francis of counsel appeared for the appellant and called Mr Briant as a witness of fact and Mr Malcolm Kempton FRICS, Director of Kempton Carr Croft, as an expert valuation witness. Mr Charles Auld of counsel appeared for the objector and called Mr Baldacchino as a witness of fact and Mr Robert Christopher Hall MRICS of FORALLSURVEYS LLP, Chartered Surveyors, as an expert valuation witness. Facts

12. The experts produced a statement of agreed facts which included a schedule of approved plans relating to the five planning permissions relevant to the application.

13. The application land is located on the west side of Corfe Mullen, a large village some 3km south west of the market town of Wimborne and about 9.5km north west of Bournemouth. Access is from Brook Lane to the west. The parties agree that although Brook Lane is adopted and made up in part, it is unadopted and unmade outside the application land.

14. The application land has a frontage of approximately 30m to Brook Lane and a boundary length of 56m with Kestor. The northern boundary with 157 Hillside Road is 34m long. The total site area is 0.14Ha. The site slopes from north to south. The northern boundary is some 2.75m above the level of the southern (Kestor) boundary.

15. To the north and east of the application land are houses in Hillside Road. To the south is the house and garden at Kestor, beyond which are houses in Haven Road. To the west is Brook Lane and open countryside beyond.

16. At its closest point the remains of the existing house at Smugglers Hyde is 4.5m from the boundary with Kestor. This is a two-storey gable end with a ridge height just under 8m above the level of the boundary. The gable end is 4.5m wide. At first floor level there is a bedroom window facing south towards Kestor. At ground floor level there is a door with windows either side. At the rear of the property, now demolished, was a single-storey flat roof sun room which extended a further 2.5m to the east. At the front of the house, also demolished, was a pitched roof porch extending 1.6m to the west of the main elevation with windows facing south towards Kestor. Smugglers Hyde was 20.6m long with its main elevations facing west (front) and east (rear). The windows in these elevations did not directly overlook Kestor. There is a detached garage at the far north west of the plot.

17. There was no agreement about the accommodation in the original cottage. Mr Briant produced “indicative” floor plans apparently showing how the cottage could be reconfigured. This showed five bedrooms, including two at ground floor level, one of which was accessed through the kitchen and the other through the living room. There was a single (windowless) bathroom on the first floor and a WC on the ground floor. No stairs are shown at first floor level. I do not consider this to be a sensible or realistic layout. Smugglers Hyde was a cottage with limited accommodation being only one room deep.