Mill Strand Developments Ltd v James Ernest Tapp & Ors

Mr James Greenland MRICS is a director of Savills and an RICS Registered Valuer working from the Bristol and Bath offices of his firm. He has practiced since 1995 and the majority of his work is the valuation of residential property for various purposes. He was instructed very late in the application process but, following a case management hearing on 31 March 2022, I gave consent for his expert evidence to be admitted on the basis that it could provide assistance to me and would give the objectors, who did not instruct an expert, an opportunity to cross examine an expert opinion. Mr Greenland was instructed to consider the objections to the application and to advise whether there was likely to be any diminution in value or loss of amenity to the objectors’ properties if the restriction were to be modified to permit the development.

Mr Greenland had inspected the site and the interior of No.4 but was not able to gain access to No.3 at the short notice given. He noted that, in comparison with photographs from November 2017 which he had been shown, there was a new gap in the boundary hedge to No.4 which had opened up its view of the site. He also noted that he was able to hear road noise from the A44 north of the village and intermittent noise from the railway to the south, but he acknowledged that these were dependent on wind direction.

Mr Greenland concluded from his inspection that Nos.1, 2, 5 and 6 Old Manor Close have no views of the site since they are orientated east-west facing across the close. Any view from the close in general is screened by Nos.3 and 4 at the end adjacent to the site. The four dwellings are therefore sufficiently removed and screened from the site that they would be completely unaffected by the development.

Nos.3 and 4 are orientated north-south with their main outlook towards the site. Because he was unable to inspect No.3, Mr Greenland obtained and reviewed the sales particulars prepared in 2014 when the current owners acquired the house. It had a kitchen/breakfast room, dining room and sitting room on the ground floor facing south over the site. Four of the five bedrooms also faced south over the site. One photograph in the particulars showed the view towards the site, which was largely restricted by vegetation. Today the boundary between No.3 and the site is formed by a close boarded 6 ft high fence at the bottom of the garden, with significant hedging and trees on the site behind it, which Mr Greenland anticipated would obscure the view of the site from ground and first floor windows.

No.4 has a kitchen/breakfast room, dining room, sitting room and study all facing south towards the site through large windows or patio doors. The views through to the site derived mainly from the gap in the hedge. Three of the four bedrooms also face south over the site, with views across it towards Bredon Hill partially obscured by a mature walnut tree in the garden. It was not in leaf when Mr Greenland inspected but he anticipated that when in leaf it would severely restrict those views.

It was Mr Greenland’s experience that residential property values are affected by many issues such as size, condition, location, size of garden, number of bedrooms, provision of a garage, off street parking, and orientation. He considered that the potential change in value arising from removal of the covenant and development of the site would be very minor compared to those other factors. There is existing mature vegetation (with the exception of the new gap) between Nos.3 and 4 and the site and the development would include planting of new trees and hedging along that boundary. The new planting would not entirely screen the new two storey dwellings until fully established, but would restrict and limit the views, particularly in summer. The nearest new dwelling would be over 32m away from Nos.3 and 4, which is more distance than between their existing neighbours, and the windows in the new dwellings would not look directly towards them. There may be limited views from the from first floor windows in the new dwellings towards Nos.3 and 4 in winter, but partially obscured and at a distance so as to have no impact on privacy.

Considering potential purchasers of Nos.3 and 4, Mr Greenland considered that some may prefer the open outlook which those properties currently have and be prepared to pay slightly less post development. Others would prefer the certainty that development on neighbouring land provides in preventing potentially disruptive agricultural uses, such as spreading of manure and slurry or the keeping of pigs and chickens, or the risk of traveller or gypsy encampments. The vast majority would consider there to be no impact on value and would outbid those who were concerned by the development. Any buyer of a property in a village location will expect to see neighbouring houses.

Mr Greenland did consider that there would be at present a short-term diminution in value arising from the uncertainty of development proposals and the fear of the unknown. This would exist from the moment a planning application is submitted until completion of the development and, in this case, be in the order of 5% of the agreed market values for Nos.3 and 4, so £25,550 for No.3 and £30,000 for No.4. Modification of the covenant to permit the development would lead in due course to removal of the uncertainty and the associated diminution in value.

Mr Greenland understood that the owners of Nos.3 and 4 would fear that there would be a loss of amenity if the development took place, but it was his view that this fear would be eliminated once the new dwellings were built. They have, and would continue to have after the development, larger than average south facing gardens which are private by virtue of the mature vegetation boundary. The site would be not be visible from their ground floor rooms, except for the gap in the hedge to No.4. From the bedrooms the views would be partially obscured by the trees within the gardens or on the boundary, especially in summer, but views from bedrooms are considered to be less important than those from ground floor rooms. Depending on the height of the new dwellings there might be some restriction of distant views, but these are already limited by the trees.

The objectors had concerns regarding noise and disturbance that would accompany development and the subsequent use of the dwellings. Mr Greenland considered that there might be some impact from carrying out the development, but not its subsequent use. There is already some ambient background noise from the road and railway and any noise from the occupation of the completed development is likely to be insignificant in comparison.

He concluded that there would be no material change in the amenity of Nos.3 and 4 on completion of development and that no purchaser would consider that the new dwellings detracted from their amenity.

Mr Mitchell explained that he and his family have lived at No.4 since June 1974 when it was first available for occupation. They purchased the house on that plot in the knowledge that it had open views to the south which were protected by a covenant restricting use of the site to agriculture. Mr Mitchell provided a photograph, taken in winter in 1976, showing the boundary between his garden and the site. The boundary was an agricultural wire fence and there was a large gap in the hedge through which the site could be seen in cultivation. Beyond the site Bredon Hill was clearly visible. Over the years the view has changed through the growth of trees on the site and in the garden, particularly the walnut tree they had planted, but the Mitchells continue to enjoy a rural view.

Whilst there has been much development in and around Lower Moor since 1974, almost none of it is visible from No.4. Mr Mitchell believed that the applicant was aware of the impact the development would have on their view, and that this gave rise to the need for the new hedgerow screening. The two storey house approved to be built on Plot 2 would have a roof height similar to that of some trees currently on the site, which are due to be removed, but as a solid and big structure it would obscure much of the view from No.4.

Even though he admitted that the site was now fairly described as a rather scrubby bit of wasteland, Mr Mitchell said that they have continued to enjoy the benefits of tranquillity and taken pleasure from the wildlife there and in the adjoining stream. Much of this amenity would be lost if the restriction was modified to allow the development.

Mr Mitchell accepted that at No.4 they could hear some background noise from the A44, depending on the wind direction, but said that they only really noticed it when emergency vehicles were using it with sirens on. He also accepted that there were already close neighbours at Old Manor Close and Back Way from where residential noise can be heard and that the additional noise from a low density development would not be hugely significant.

In their notice of objection the Mitchells had placed a figure of £70,000 on their likely claim for compensation, having been advised by someone with experience of residential development. They were no longer seeking compensation since they did not expect to move and therefore would not suffer actual financial loss. Mr Mitchell believed that the practical benefits of the restriction were of substantial advantage to them.

Although Mr Mitchell had been the agreed point of contact for all the objectors from Old Manor Close, he was not able to speak for the other objectors beyond repeating what they had stated in their notices of objection. All of those points had been covered within his own evidence.

Counsel submitted that the existence of a full workable planning consent confirmed that the proposed use was reasonable. The objectors had maintained their view that the site remained suitable for agricultural use, but had not challenged the development as an unreasonable use. In my judgement the proposed use is a reasonable one. The development has received scrutiny through the planning process, with amendments and conditions to ensure that it meets the criteria for sustainable development. It is agreed by the parties that the restriction does impede the development.

I agree with Mr Greenland’s opinion that there is no evidence of any practical benefit secured by the covenant for the objectors living at Nos. 1, 2, 5 and 6 Old Manor Close. They have no view of the site and are separated from it by Nos. 3 and 4.

Initially Mr Greenland did not differentiate between Nos.3 and 4 when considering the impact of the proposed development, but he accepted subsequently that the impact on No.4 would be greater than on No.3, due to the proximity of Plot 2 to the boundary of No.4. However, he maintained that the impact on view would be mitigated by new screening and tree planting, as well as the mature walnut tree in the garden, and that there would be no impact on value other than an uplift once the current 5% negative effect of uncertainty was removed.

From my own inspection I am clear that the restriction does secure practical benefits to the owners of No.4, by preserving the setting of the property on the edge of the village, from where all ground floor rooms and three of the four bedrooms benefit from southerly rural views over undeveloped land. Modification of the restriction to permit the development would alter the setting completely by moving the edge of the village to the southern boundary of the site and leaving No.4 surrounded by residential development. This would be very apparent from the south facing windows and garden of No.4 until some mitigation was provided by the approved tree and hedge planting.

Whilst the same would be true for No.3, its current outlook is already screened by a more significant hedge and tree boundary, and this would be changed very little by the development due to the siting of a significant area of green infrastructure in front of that boundary. I cannot identify a practical benefit secured to the owners of No.3 by the restriction.

Mr Mitchell contended that as owners and occupiers of No. 4 since its completion in 1974, he and his wife have found the benefits of the restriction to be a substantial advantage. He did not place a value on the benefits, because he simply wished to preserve them, not be compensated for their removal. That does not mean that they have no value, and I will give consideration to what value they may have, and whether that value is substantial.

The much-quoted definition of what might be substantial in terms of advantage and/or value is “considerable, solid, big”, taken from the speech of Carnwath LJ in Shephard v Turner [2006] 2 P&CR 28, paragraphs [19 – 23]. Whether a benefit is substantial requires a subjective judgment to be made in the particular circumstances of each application and of each property of an objector where benefits are secured.

In my judgment, the value or advantage of the practical benefits secured to No.4 by the restriction is not substantial. Although the only alternative form of development which could be carried out without being in breach of the restriction is for the purposes of agriculture, the land is, and is likely to remain, essentially redundant for that purpose as a result of surrounding residential development and restricted access. The resulting reversion of grassland to scrub and waste is typical of land with no economic purpose and, in that state, it is not particularly attractive. Preventing development which would change the setting is of greater advantage than preservation of the immediate outlook.

I bear in mind the comments made by Mr Greenland that residential property values are affected by many factors, and that different types of purchaser will weigh these factors in the balance differently. In my view a less than substantial advantage, as here, may well be recognised by the market in terms of value, but not substantial value.

Mr Greenland’s evidence on value was unusual in suggesting that modification of the restriction to allow the development would lead to an enhancement in the value of the objectors’ properties by removing a discount in the market for uncertainty. It does not appear to me to be a good argument. For the purposes of s.84 (1A) (b) it is not the short term consequences of the threat of modification which are significant, but the longer term perspective. Development is currently prevented by the restriction, and temporary uncertainty created by the proposal to develop the site must be left out of account when considering whether the value of the objectors’ property will be diminished.

Whilst the construction period would be the most disruptive phase for the owners of No.4, that would be temporary. The impact on outlook would be most severe during the period between removal of trees on the site for the construction and the point where the approved new planting had become sufficiently established to provide an effective screen. That impact would be more than temporary, and the change in the setting of No.4 would be a permanent disadvantage. The value of No.4 is agreed at £600,000 and, in my view, adequate compensation for the disadvantage arising from modification would be provided by the sum of £25,000.

S.84(1)(B) requires the Tribunal to take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant area. Evidence on this was provided within the report of the planning officer who recommended the grant of outline planning consent and by the residential development which has taken place all around the site since the restriction was entered into. I am therefore satisfied that the pattern for granting consent is established and apparent.

The Tribunal is also required to take into account the period at which and context in which restriction was created or imposed and any other material circumstances. The covenant was entered into 50 years ago when an agricultural business was still operating in the village and the planning policy framework for the area would have been very different. Councils are now required to deliver a sufficient supply of homes and promote sustainable development. The site of former agricultural activity in the village has been developed for housing and the restriction to agricultural use has ceased to have relevance.

I am satisfied that ground (aa) is made out and that I have discretion to modify the restriction which impedes a reasonable use of the site and does not secure to the persons entitled to the benefit of it practical benefits of substantial value or advantage. The amount of £25,000 would be adequate compensation to the owners of No.4 for the loss of practical benefits secured by the restriction.

It follows that ground (c) is not made out because the proposed modification will injure the owners of No.4.

The following order shall be made:

An order modifying the restriction shall be made by the Tribunal provided, within three months of the date of this decision, the applicant shall have: