Roland Stafford Flowers v Linstone Chine Management Company Ltd

LORD JUSTICE DAVID RICHARDS: This is a renewed oral application for permission to appeal against the refusal of the Upper Tribunal (Lands Chamber) (Mr P R Francis FRICS) to vary or discharge a restrictive covenant under section 84(1) of the Law of Property Act 1925 as amended.

The restrictive covenant in question is contained in a conveyance of a holiday bungalow at Brambles Chine Estate in Freshwater in the Isle of Wight. The covenant restricted the use of the bungalow to a holiday bungalow for leisure purposes only and provided that the bungalow should not be occupied during the periods from 15 November to 19 December and 4 January to 14 February in any year. The bungalow is one of 278 bungalows on 38 acres of clifftop parkland which was constructed in the mid-1970s. The conveyances of the vast majority of the bungalows on the estate contain a similar covenant.

The application was opposed by the management company of which the owners of the bungalows are the members. Opposition to the application was approved by a meeting of the members of the company at which 116 members voted in favour of opposition and I think about 50 voted against. The remaining members did not vote. At the hearing before the Upper Tribunal, the management company accepted that the restriction could be modified to remove the restriction of the use of the bungalow to a holiday bungalow for leisure purposes only and so be limited to the extent of preventing occupation of the bungalow between 5 pm and 10 am on any days during the periods from 15 November to 19 December and 4 January to 14 February in any one year. The intended effect of the modified restriction would be to prevent full time residential occupation of the estate.

Permission to appeal was refused on the papers by Burnett LJ. The application is renewed on six grounds of appeal, one of which has been added since the papers were considered by Burnett LJ and two of which have been amended. The basic thrust of the intended appeal would be that the Tribunal had failed properly to evaluate the effect of the existing planning restrictions that are in place in respect of this estate. The planning restrictions prevent the use of the estate as full time residential accommodation and limit it, I think I am right in saying, to use as holiday accommodation.

These restrictions do not apply to the appellants simply because they were in full time occupation of their bungalow for long enough to require the Local Authority to issue a notice that no enforcement action could be taken against them. They, and perhaps a small handful of other bungalow occupants on the estate, are therefore in the rather special position that the planning restrictions cannot be enforced against them, but there remain in place the restrictive covenants which can be enforced against them in a private law claim by the management company acting on behalf of the other bungalow owners, and indeed civil proceedings were taken and were successful against the appellants.

The appellants have lived in this bungalow as their sole home since I think about 1995, and indeed Mr Stafford Flowers was originally and for a number of years employed on the estate. He was permitted to occupy the bungalow where he and his wife live and they subsequently acquired it. For a long period no objection was taken to their full time occupation of the bungalow.

The principal concern identified by the management company, which was accepted by the Upper Tribunal and formed the principal ground of decision of the Upper Tribunal, was that if this application were to succeed it would set a precedent which would lead in the fullness of time to a large number of applications by other bungalow owners to discharge the restrictive covenant. If that were to occur, then the scheme established by the inclusion of these restrictive covenants in all or most of the conveyances of the bungalows would be in effect destroyed. In reaching his decision Mr Francis had regard, as he is required to by section 84(1), to the planning position, which he summarised, but which played it would appear no significant part in the decision which he in fact made.

Mr Cottle, who appears today on behalf of the appellants, as he did before the Upper Tribunal, submits that the appellants have a real prospect of success on an appeal in showing that the Upper Tribunal did not have proper regard to the existence of the planning restrictions on the likelihood of the scheme established in relation to the estate being undermined by subsequent applications by bungalow owners. The uncontested evidence before the Tribunal, which was agreed by the expert acting for the appellants, was that there was no realistic prospect of the existing planning restrictions being lifted. Accordingly, Mr Cottle submitted that his clients, and perhaps just a few others, are in a unique position whereby, because of the length of time in which they have occupied their bungalows they are no longer in effect subject to those planning restrictions, but the vast majority of the bungalows on the site remain subject to those planning restrictions. The concern expressed by the management company, and accepted by the Upper Tribunal, that removal of the restrictive covenant would lead to the estate becoming a full time housing estate, is therefore misplaced.

I have concluded that there is sufficient in the submissions made by Mr Cottle on behalf of his clients to raise a real prospect of success, as that term is understood, in an appeal.

I will, therefore, grant permission to appeal, subject however to this: ground 4 seeks to undermine the reliance placed by the Tribunal on the outcome of the vote of the members of the management company to which I have referred. The challenge is based principally on a suggestion that the members may well have misunderstood the position which would exist if the appellants' application were successful by reason of a sentence or two in a letter sent to the members of the management company before the meeting.

This would appear to be a new point raised for the first time in this court. There is no reference which I or Mr Cottle could find in the Upper Tribunal's decision to this argument, nor could Mr Cottle point to any part of his written submissions to the Tribunal in which he advanced this argument. This is an argument of mixed law and fact and I do not consider that it can properly be raised for the first time in the Court of Appeal.

Accordingly, I will not give permission to appeal on ground 4 of the draft amended grounds of appeal placed before the court.