Quantum (Barrowsfield) Limited v Andrew John Bell & Ors

Expert amenity evidence was given for the applicant by Dr Chris Miele MRTPI IHBC, a senior partner at Montagu Evans who specialises in aspects of town planning relating to townscape and visual impact as well as amenity matters arising from developments. He is a chartered town planner with a PhD in the history of architecture and town planning from New York University. He had been instructed to report on amenity issues arising from the proposed development and whether the covenants provide practical benefits of substantial value or advantage to the objectors. He had visited the application site and the rear facing rooms and gardens of the objectors’ properties.

Dr Miele referred to the character of the area, as described in the local plan, and concluded that the covenants do deliver some practical benefits because they limit the density of development on the application site, but not benefits of substantial advantage. He did not consider Barrowsfield to be a secluded and tranquil location because of its proximity to the road and its noise, nearby commercial uses, the proximity of a children’s playground and playing fields and the close spacing of the objectors’ properties. He concluded that the density benefit of the covenants therefore makes no real difference to these perceptual influences.

Dr Miele did not see that the proposed development would harm the visual amenity or character of Barrowsfield to a substantial extent. He did not consider a five storey building to be inappropriate, even though it would be higher than any other building in the surrounding area. The east side of Limpsfield Road with its retail frontage, including the food store and filling station, is designated as a Local Centre, rather than simply a suburban street. Planning policy requires best use to be made of land, and height is only one aspect of mass. The design of the building successfully breaks down its mass and bulk, reducing its apparent height and scale in a way consistent with the local authority design guide. The staggered building line of the frontage has gaps that produce shadows and the overall mass is further reduced by corner inset balconies, and by mansard roofs set behind a parapet.

Although the consented scheme includes landscaping conditions which have yet to be discharged, Dr Miele’s report had been written based on the approved landscaping plans and had not taken the revised plans into account, but he said he considered them to be acceptable. He acknowledged that there was little space between the proposed parking area and the boundary to No. 1 in which to achieve the proposed planting and that only planting within the site boundary could be approved by the council for discharge of that condition, but felt that could be resolved by careful specimen selection.

Dr Miele commented that the orientation of the proposed development is essentially at 90 degrees to the objectors’ properties, which look south over the open recreation ground. This is the main amenity for the objectors’ properties and would remain so into the future. Most of the windows in the western elevation of the proposed development, visible to the objectors’ properties, are bedrooms which would have curtains drawn when lit. Other living spaces are set back from the façade of the building behind balcony areas. The only area from which light could be intrusive is the residential lobby to the north elevation, but this is likely to be minimal as illumination of the common spaces will be controlled by timers.

As to the objectors’ concerns about disturbance and overlooking from the rooftop amenity areas, Dr Miele agreed that the areas would be available to 115 residents of 28 flats, but did not consider that the areas would be heavily used to the detriment of the amenity of the objectors. The number of residents using them would depend on time of day and week, the weather, and the demographic of the residents. The play area on the roof would not be heavily used because there is an enclosed play area adjoining the entrance to Barrowsfield. It would be in the interests of the occupiers of the proposed development to ensure that neighbours did not create disturbance in the amenity areas and this can be controlled through the terms of a management agreement. The boundary planters would push people back from the edge and the views from those areas would be outwards towards the recreation ground.

Dr Miele agreed that when standing in the gardens of the objectors and looking east towards the application site, the proposed development would be plainly visible but he said that the wider skyline would not be interrupted and that separation distance is a factor. Mr Bell’s images assume that someone in the objectors’ gardens is looking sideways to the application site and having their whole view filled by the proposed development, whereas in reality they would continue to be aware of the considerable expanse of open land immediately beyond the garden fences, which give an open aspect to the gardens. Planting of a 2.5m to 3m high specimen, such as a Japanese Acer, in the garden of No. 1A would materially reduce the potential for awareness of the development. The retained trees in the application site would also play a role in mitigating the potential for intrusion. The images produced by Mr Bell to show the outlook from the proposed development across the objectors’ properties had the limitation of being created at the outer edge of the building rather than from inside the rooms. Residents in bedrooms would not be looking out in contemplation and if a bedroom was used as an office the occupant would be seated and looking out at the view and the sky.

Dr Miele thought that the objectors’ concerns about lights and noise arising from the vehicle movements in the parking area would be addressed by the proposed 3m acoustic fencing, which would work as a baffle to both headlights and noise. It was Dr Miele’s experience that this had been used successfully in other developments. Existing road noise from Limpsfield Road would be heard less than at present as a result of the proposed development.

Dr Miele accepted that in reviewing the concerns of the objectors he had not differentiated between the impact on each property separately, but acknowledged that the practical benefits provided by the covenants were greatest for No. 1A.

Dr Miele saw some benefits in the proposed development for the objectors in ensuring a planted boundary and a better entrance to Barrowsfield, with greater safety resulting from greater passive surveillance.

Dr Miele’s opinion on alternative forms of redevelopment which would not breach the covenants was that when considering the whole site the council would be likely to want more than replacement houses to comply with national guidelines on intensification on a previously built site. However, individual applications to rebuild each house would be hard for them to resist.

Expert valuation evidence for the applicant was given by Mr Ruaraidh Adams-Cairns FRICS of Savills, an RICS Registered Valuer with 39 years’ post-qualification experience who is a specialist in the field of residential valuation.

It was helpful that the expert valuers had agreed the current market value of the objectors’ properties, at £900,000 for No. 1A, £947,500 for No. 1B and £887,500 for No. 1C. The roadway was valued at its purchase cost in 2020 of £16,000.

Mr Adams-Cairns was instructed to give his opinion as to the diminution in value, if any, to the objectors’ properties that would be caused if the covenants were to be modified and the development completed. He had inspected the application site in February 2022, and the objectors’ properties in June 2022, and had read the report of Dr Miele. In his report Mr Adams-Cairns considered the various concerns of the objectors, based on the approved plans but not the later amendments to landscaping and boundary proposals.

The objectors’ principal concern was that the proposed development would be overbearing. Mr Adams-Cairns considered that although the larger and more visible part of the proposed development would be significantly higher than the objectors’ properties, it would not be significantly overbearing. When considering their concerns at being overlooked and having a view of the proposed development, Mr Adams-Cairns expressed the view that the main aspect of the gardens is to the south, and not towards the application site and that the gardens already suffer from overlooking between the existing houses. He had seen Mr Bell’s images of the views from the objectors’ gardens towards the proposed development, but considered them to be misleading in not taking account either of the shrubs and plants within the gardens or of those to be retained on the application site. The shortest distance between the windows and balconies in the west elevation of the proposed development and No. 1A would be 31.9m, which is a long way in terms of the perception of being overlooked. He acknowledged that if residents were looking out from a balcony that would feel more intrusive than if they were inside behind windows.

He acknowledged that there would be an increase in noise from the proposed development compared with the present four houses, but considered that the fencing, landscaping and distances involved would mean this would not be significant in valuation terms. Similarly, the additional light pollution from windows would mainly be at night with curtains drawn and not significant from a valuation viewpoint. Mr Adams-Cairns considered that there would be some betterment to the objectors’ properties arising from improved access into Barrowsfield, cessation of use of the access and road by Nos. 2 and 3 and the fact that the mass of the building would be likely to reduce the impact of noise from Limpsfield Road.

In summary it was Mr Adams-Cairns’ opinion that on arrival at Barrowsfield there would be an awareness of a large modern residential building, more usually found in a more central urban setting. There would be no negative awareness of the building from within the objectors’ properties, but they would be able to glean an impression of its height and extent from their gardens. There would be some degree of overlooking but not materially worse than that which already exists. There would be a marginal loss in amenity which would have an impact on value, but only in relation to the rear gardens. Mr Adams-Cairns had considered whether some purchasers would not wish to buy a house in a road with a large block of flats at the entrance, but concluded that if that was the case it would require a material drop in demand to lead to a drop in value. It was his opinion that although prospective purchasers would see the proposed development at the end of the road, they would focus more on the property they were viewing and its garden with views.

Mr Adams-Cairns’ approach to putting a value on the loss of amenity to the gardens, based on his experience of valuing houses with different sized gardens and with access to shared gardens, was to apportion 15% of the total value of each house to the garden. In his opinion 33% of the garden value would be lost at most, diminishing with distance from the development. He accepted that he could provide no evidence to support either of the percentage figures he adopted, but used them to assess the loss of value to each property at £14,400 for No. 1A (1.6% of total value), £10,423 for No. 1B (1.1% of total value) and £8,431 for No. 1C (0.95% of total value). He did concede that he may have underestimated the impact on No. 1A with insufficient differential between Nos. 1A and 1B.

Expert valuation evidence for the objectors was given by Mr Peter Roberts FRICS CENV of Dalton Warner Davis LLP, an RICS Registered Valuer with 27 years’ post-qualification experience who specialises in valuation and expert advice; he also gave his views on amenity.

Mr Roberts had inspected the objectors’ properties and the locality in March, and May 2022 and relied on the images produced by Mr Bell from his model. Mr Roberts’ report was 152 pages long, with a further 118 pages of appendices, and included much analysis and commentary well beyond the scope of his instructions and of his expertise. We have ignored his comments on the law. We regard his comments on the planning process as irrelevant, and note only that (as Mr Hutchings KC observed) he conceded at paragraph 13.55 of his report that “It is therefore clear to me that the extent of harm caused to the Objectors in considering the planning application was addressed by LPA officers and Committee members purely in accordance with planning policy... This is therefore an example….where the decision to grant planning permission could be considered to be correct on the basis that the policy tests are satisfied such that there is no harm in planning terms…..”.

Turning to amenity, it was Mr Roberts’ opinion that the proposed development would cause irreversible harm to the objectors’ use and enjoyment of their properties as a result of: loss of privacy, a perception of significant overlooking, noise intrusion from the flats and amenity areas, artificial light pollution from the upper floors and roof space, a loss of tranquillity and protection from the urban environment, replacement of a village feel by an ‘edge of city’ sense, replacement of the eastern skyline by a modern block of flats, an increase in long term unauthorised parking in Barrowsfield, and potential excessive noise from pedestrian and vehicle movements. He concluded that the practical benefits of the covenants in restricting development on Nos. 2, 3 and 5 to single dwellinghouses are of substantial advantage to the objectors because they protect them from all the harm of the proposed development.

Mr Roberts was challenged on his qualification and experience in respect of the amenity matters on which he made his assessments of harm and he acknowledged that he was not an expert in those matters. He was asked to comment on two reports, one on skyline/daylight distribution and one on external daylight, sunlight and overshadowing, which were produced for the applicant on 14 October 2022 by Base Energy and submitted as late evidence. (Earlier reports submitted to the council with the planning application had only analysed the impact on No. 1, since this is the closest property to the proposed development.) The reports used 3D modelling of the existing and proposed developments, and the objectors’ properties, in order to apply Building Research Establishment (“BRE”) guidelines in assessing the impact that the proposed development would have on the habitable windows and garden/amenity areas of the neighbouring dwellings. Both reports concluded that, from a planning perspective, the proposed development would be acceptable in complying with BRE guidelines. Mr Roberts commented that no prospective purchaser would commission this type of report.

Although he had concluded that the practical benefits are of substantial advantage, Mr Roberts went on to consider whether money would be an adequate compensation for modification or discharge of them and to assess the diminution in value which would arise from implementation of the proposed development. In an extraordinary and ill-judged departure from usual valuation practice, Mr Roberts chose to assess the likely extent of diminution in value at Barrowsfield not by reference to comparable evidence, which he said was not available, but by analysis of two previous decisions of this Tribunal concerning application sites in Tonbridge Wells and Newbury. He had even gone so far as to inspect those sites. His initial conclusion from that analysis, and his experience of compensation claims for blight and injurious affection under compulsory purchase law, was that the loss of value to the properties at Barrowsfield would be 15% for No. 1A (£135,000), 14% for No. 1B (£132,650) and 13% for No. 1C (£115,375). Mr Roberts subsequently acknowledged that his range from 13% to 15% was narrow, considering that No. 1A was closest and likely to be most affected, and that the range might actually be 10% to 15%. Mr Roberts acknowledged that a development on the application site which was no higher than two or two and half storeys high, behind a screen, would have a relatively small impact on the objectors’ properties so that the damaging element was height rather than a flatted development per se. Mr Roberts also acknowledged that he could have sought evidence of the impact of flatted developments above three storeys in height on the value of nearby detached properties by widening his search outside the immediate locality.

With regard to the Barrowsfield access road belonging to the company, Mr Roberts concluded that modification to permit the proposed development would cause a 10% loss of the agreed value of £16,000. This would, he said, arise from the additional time required to deal with traffic issues caused by the prospective development, which would be a motivation for a hypothetical seller to pass on responsibility for it at a lower price. He subsequently acknowledged that as Barrowsfield is a private road, public parking is not available and in practice can be managed by the use of a barrier.

No copy of the 1908 conveyance can be found. All that is recorded on the register of title is the text of two covenants, one to erect only detached private dwelling houses and one to have plans approved by Ms Arkwright. The latter is obviously a personal covenant and is in any event obsolete. Mr Hutchings KC argues that the covenant to build only detached houses is equally a covenant made only on a personal basis with the vendor. No words are recorded to the effect that the covenant is made with the vendor and her successors in title, and there are no words annexing the benefit of the covenant to the land. Even if it was possible to identify any benefited land in 1908 (from the text of the now lost conveyance) it is not now possible to identify any land that benefits from it.

Mr Hutchings KC points out that where the original and only beneficiary of the covenants is dead, that is sufficient for the covenants to be found to be obsolete under ground (a).

We agree, and we discharge the covenants on ground (a) as to the whole of the application site.

The applicant seeks modification of the 1963 and 1993 covenants under ground (aa) of s.84 so that it can implement the planning permission granted on 23 January 2020. The Tribunal only has discretion to modify the covenants under that ground if we can be satisfied that those covenants, in impeding implementation, do not secure to any of the objectors practical benefits of substantial value or advantage. It was acknowledged by all the experts that the property which would most affected is No.1A, since it is situated closest to the application site and the proposed development. We have that in mind when considering the issue of substantiality.

We approach the analysis by looking at the questions posed by Re Bass Ltd’s Application (1973) 26 P&CR 156, at 158:

Is the proposed use reasonable? The proposed development has planning permission and it would be difficult therefore not to regard it as a reasonable use of land, especially as the purpose of the proposed use is to provide housing. Mr Wills made much of the fact that the occupiers of the five affordable housing units would be excluded from the play area on the roof, and referred to the provisions of the London Plan 2021 concerning the need to provide safe access to play areas within new developments. For that reason he argued that the proposed use is not reasonable. We disagree; the qualification on access to the roof is not of the applicant’s making but is a requirement of the housing association, made in the light of their experience with their clients. We make no comment on that and we take the view that it is appropriate to regard the proposed use of the building as the provision of housing, which is of course a reasonable use especially as it has planning permission; we are not concerned with the housekeeping arrangements of individual lessees nor with the way the housing association manages its business.

Do the covenants impede that use? It is not in dispute that they do.

Do the covenants in impeding that use secure practical benefits to the objectors?

Here we have to address the question whether we should ignore the proposed development insofar as it stands on No. 4, because the objectors do not have the benefit of any covenants over that property. We take the view that we should not do so. The covenants binding Nos. 2, 3 and 5 prevent this proposed development. They do not prevent a 20-storey block of flats on No. 4 (although planning policy certainly would). But they do prevent this proposed structure, L-shaped and of a height varying between 3, 4 and 5 storeys, comprising 33 dwellings and featuring roof gardens and a rooftop play area. But for the covenants on Nos. 2, 3 and 5 this development could go ahead. Our assessment is of the proposed development before us; it would be wholly unrealistic for us to take the view that it could go ahead so far as its middle section is concerned and we are to look only at the sections of the building that stand on Nos. 2, 3 and 5.

However, in assessing any benefit conferred by the prevention of this development we have to bear in mind that the objectors are not protected from some different development on No. 4. There is nothing to prevent a flatted development there, of unknown height and density. So it is not the case that we are comparing the proposed development with a development of four single dwellings across the whole application site.

With that point dismissed, our first observation under this head is that the covenants in preventing the proposed development secure no practical benefits to the fourth objector, the limited company that owns the eastern half of the road. The company has no feelings and will be unaffected by the appearance of the building and by any noise or overlooking. Wear and tear on the road will be diminished because whereas at present Nos. 2 and 3 have vehicular access, the car park for the development will be round the back and approached from Limpsfield Road. We understand the objectors’ concerns about unauthorised use of the road; but there is a barrier at the entrance to the road and we see no reason why it cannot be kept closed, secured by a card entry system, so that access is controlled as it is for so many private roads. We think it unlikely that anyone will risk actually parking across the barrier.

Accordingly so far as the fourth objector is concerned the Tribunal has discretion to modify the 1963 and 1993 covenants.

So far as the other objectors are concerned, however, we take a different view.

Insofar as the first, second and third objectors are concerned, the covenants in preventing the proposed development provide protection from (1) a change in the character of the setting and neighbourhood of their homes, from (2) the noise and light of 33 households, from (3) overlooking from the rear windows and rooftops of the new building, and from (4) the view of a structure of up to five storeys from their rear gardens and from some of their internal upstairs rooms. To some extent this was conceded by Dr Miele, but in any event we think that these are all obvious practical benefits conferred by the covenants, even though we do not go all the way with the objectors’ characterisation of the neighbourhood – it is hard to describe it as tranquil, even though the objectors’ properties are at some distance from the main road and the shops.

The objectors also claimed that the covenants protect them from congestion and unauthorised parking in their private road. It will be clear from what we said above (paragraph 80) about the fourth objector that we do not accept this. Provided that the objectors take the easy step of closing their barrier, the development will if anything improve the amenity of the road from them.

Are those practical benefits of substantial value or advantage? This is the crucial question.

Taking the benefits one by one, we begin with the setting and neighbourhood of the objectors’ homes. Our site inspection provided us with a clear understanding of the nature of the objectors’ properties, the nature of the existing (but dilapidated) properties on the application site, and the context for the proposed development. The neighbourhood is urban; the immediate setting of the objectors’ houses has a lot to recommend it; but that immediate setting is not really tranquil, lying as it does alongside a busy road and next to a children’s playground. The very pleasant green space to the west and south will be unaffected. True, a large new building will be added to the scene. We bear in mind that No. 4 could be developed as flats so that the covenants do not protect the objectors from some intensification of development nearby and some change in their immediate setting. The protection to the setting and neighbourhood provided by the prevention of a large building spanning the whole of the application site is a benefit, but it cannot be said to be of substantial value or advantage.

Second, the noise and light of 33 households. We bear in mind that noise may emanate from the roof terraces as well as from balconies and open windows, and from the movement of vehicles in the car park. We bear in mind that all the objectors are shielded by No. 1, and that an acoustic fence is likely to dampen vehicle noise. Light from the building will be visible in the evening, but will not be visible to the objectors from inside their houses and so will trouble them only in warm weather when they may be in their gardens in the evenings. We bear in mind that the covenants do not protect the objectors from a flatted development at No. 4 which would generate some light and noise in any event. We are not able to regard the protection from noise and light from the development as a practical benefit of substantial value or advantage.

Third, there is the overlooking of the objectors’ properties.

Obviously there will be overlooking. People will be able to see into the objectors’ gardens from the balconies on the west side of the new building, from inside the building through the western windows, and from the roof. We note that the roof terraces are on the area now occupied by Nos. 2 and 4. The overlooking on the west side cannot be entirely prevented but much of it on the lower floors can be mitigated by tree planting on the boundary if successful. We were unimpressed by last-minute attempts to persuade us that quite tall trees could be planted in a restricted space to screen the objectors’ properties; there is no evidence about the success rate of such plantings and of the care that would be needed to ensure that the trees thrived.

Overlooking from the roof might be less significant. We do not expect there will be crowds on the roof terraces, despite the numbers of people that will have access. We do not have confidence in the proposals for screening with olive trees, which will be heavily dependent on careful maintenance, and with opaque screens. The latter will spoil the outlook for residents of the new building and we are not confident that a residents’ management company would keep them in place.

In considering overlooking, we were assisted by Mr Bell’s images of his computer model representations of the proposed development. Some criticisms were made by the applicants of their accuracy, but Dr Miele accepted that the model had been produced using best and genuine endeavours, within the limitations of a massing model. In fact no evidence was produced by the applicant to the effect that there was any inaccuracy in the visual representations; criticisms of their accuracy were made by counsel in cross examination on the basis of “common sense” and without any technical basis. As we have already indicated, we accept Mr Bell’s factual evidence that the computer model was produced using accurate measurements and that, for example, the images of people on the roof were derived from human-sized height (Mr Bell said 1.8 m) and were represented as they would be seen by a person standing at the point of view chosen by the programme. There are of course different points of view available but that does not change the accuracy of these views. So far as overlooking was concerned the model does not have internal depth and so views from windows represent what could be seen from the outer surface of the glass.

Turning to the effect on individual objectors, we are unable to find that the covenants in preventing the overlooking of the back gardens of Nos. 1B and 1C are conferring a practical benefit of substantial advantage. Yes, there is a benefit, but the residents whether inside or on the roof of the development are too distant for this to be a significant matter. In particular the roof garden at the northern end of the property, on what is now No. 2, is separated from the garden of No. 1C by buildings as well as by distance.

By contrast the overlooking is a significant matter for No. 1A. In saying that we disregard the existing balcony at No. 1 which was built without planning permission. Mr and Mrs Bell’s garden will be overlooked from the roof terraces and from the western elevation of the new building, separated only by No. 1, and we regard protection from that overlooking as a practical benefit of substantial advantage. Here we disagree with Dr Miele; we found him to be a credible and authoritative witness, although perhaps one who is inclined to see benefit in development to outweigh its harms. We bear in mind that the Bells’ garden could well be overlooked in the future by flats on No. 4. But the covenants by restricting development to a single dwelling on No. 2 prevent the overlooking from a three-storey roof-terrace, and by preventing the development of a building of the proposed size across the whole application site the covenants are protecting the residents of No. 1A from this intensity of overlooking from the whole building. This is a practical benefit of substantial advantage.

Accordingly as a result of the overlooking of No. 1A the Tribunal does not have discretion to modify the covenants.

Finally there is the view of the building from the objectors’ gardens and houses.

Even without Mr Bell’s helpful images, it is obvious that this is a very large building. We are wholly unpersuaded that the objectors in their gardens only look south and will only see it in their peripheral vision. The building is overbearing and will transform the outlook from No. 1A, dominating the western sky. We find, again, that the covenants in preventing that are conferring a practical benefit of substantial advantage on No. 1A. We reach the same conclusion for No. 1B, bearing in mind that the new building will be visible from inside the second floor office, as well as from the garden.

By contrast, and with some hesitation, we take the view that the mass of the building from the garden of No. 1C will be unwelcome but not – after a short while – hugely noticeable.

Therefore, again, the Tribunal does not have a discretion to modify the 1963 and 1993 covenants.

That being the case there is little we need say about the valuation evidence. We observe, however, that as so often in s.84 cases we have been presented with polarised valuation evidence which was unhelpful to the Tribunal in a number of respects. We were disappointed that neither valuer fully examined the particular and different impact of the proposed development on the different objectors’ properties; they each adopted a valuation approach which simply used a sliding scale to account for distance. The applicant and its expert consider that the modification would lead to no more than a marginal loss of amenity to the neighbouring properties, creating a loss of value in the order of 1-2%. The objectors and their expert consider that modification would lead to irreversible harm to the enjoyment of their properties and a substantial loss of value in the order of 10-15%. Neither valuation expert based their selection of percentage loss on evidence from the market which could be examined at the hearing, each relying essentially on their long professional experience. We did not find this helpful and it is an approach which we strongly discourage. It will be unsurprising that we found Mr Roberts’ analysis of two previous Tribunal decisions a uniquely inappropriate method of establishing loss of value to the objectors’ properties in this case. We note that Mr Adams-Cairns’ attribution of 15% of the value of the property to its garden makes it almost impossible to regard loss of value to the garden as being of substantial value to the property owner; but we regard that attribution as arbitrary and unevidenced.

However, in light of the conclusion we have reached we do not need to make any findings about loss in value to the objectors’ properties.

In conclusion, we discharge the 1908 covenants across the whole of the application site. But we have no discretion to modify the 1963 and 1993 covenants and so far as those covenants are concerned the application fails.