Hughes Family Property Co Ltd & Anor v Jonathan Marvin & Ors

The applicants (‘the Applicants’) are the owners of land (‘the Land’) which forms part of the garden of a house in Dartmouth occupied by Mr Bradley Hughes, a director and shareholder of the applicant companies. They have secured planning permission to develop a three bedroom house on the Land but cannot implement the permission because in so doing they would breach a restrictive covenant which burdens the Land.

In this application the Applicants seek to modify the covenant to enable them to implement the planning permission. The objectors (‘the Objectors’) live in some of the neighbouring houses in Redwalls Meadow which have the benefit of the restrictive covenant.

The Applicants were represented at the hearing by Mr James Fuller. One of the objectors, Mr Andrew Behan, attended the hearing and gave evidence. None of the remaining objectors either attended or were represented. They did, however, make written submissions regarding the application.

I inspected the Land on the afternoon of the day before the hearing. I was accompanied by Mr Hughes and his planning consultant Mr Halstead. I also visited Mr and Mrs Blythe who live at No. 26, Mr Preston who with his wife, live at No.24, and Mr Behan who resides at No. 22. I inspected the gardens of numbers 22 and 24. I viewed the remaining Objectors’ houses from the roadway. For the record, Mr and Mrs Cotton live at No.21, Mr and Mrs Merefield own No. 24, and Mr and Mrs Marvin own No. 23.

The Land is a building plot which in shape is best described as a five-sided polygon and a plan showing the arrangement follows paragraph [7]. It is on the northern side of Mount Boone, a residential road about 500 metres west of Dartmouth town centre and the estuary of the River Dart. Dartmouth is about 25 miles south of Exeter and the same distance east of Plymouth.

The Land extends to about 440 m², or approximately 0.11 acres. It slopes downwards from the southwestern corner, where the site surface is 58.77 metres Above Ordnance Datum (‘AOD’), to 52.64 metres AOD at the lowest point on the northern boundary. Although the Land forms part of 28 Redwalls Meadow, its surface is currently between 2.5 metres and 8.5 metres higher than the road level in Redwalls Meadow. Consequently, there is a substantial retaining structure in the garden of No. 28. The Land has a stone walled boundary to the roadside and timber fencing elsewhere.

The plan also shows the Land and the location of the Objectors’ houses on Redwalls Meadow. The houses are all detached and appear to date from the 1970s. Redwalls Meadows itself slopes downwards to the east and the town centre. I did not inspect all of the rear gardens but the few that I did see were steeply inclined and quite shallow. The houses are typical of their age with the principal rooms orientated to the front or rear rather than towards the Land. Redwalls Meadow is only developed on the southern side, the northern verge contains a mixture of deciduous trees and a grassed area bordered by a laurel hedge and some hydrangeas. This latter area is tended by residents who live opposite. Beyond this planting is the A379 College Way which, as its name suggests, serves the Royal Naval College and is the primary route into and out of the town.

In February 2023 the Applicants applied for Planning Permission to develop a house on the Land and conditional permission was granted on 15 May 2023 (ref: 0445/23/FUL). The decision noted that whilst the site forms part of the rear garden of 28 Redwalls Meadow, the front elevation of the dwelling will face Mount Boone and the access will be to the south on to Mount Boone. The proposed house (‘Proposed House’) is described as having a simple two storey design with a dual pitch roof with a front gable and dormer window. It would be constructed in render with random course natural rubble stone, have natural slate roof tiles, timber eaves and verges, aluminium windows and galvanised steel rainwater goods. The ground floor would have an area or approximately 57.8 m² and the first floor would extend to 58.1 m². The total floor area would therefore be 115.9 m².

Externally a new hard standing area would be created between Mount Boone and the proposed access gates/front boundary walls, which would be set slightly back within the site. The new walls will be of stone construction with piers to match the existing. The area of hardstanding would continue through the access to create a driveway/parking area for two cars. Access to the dwelling and the surrounding patio area would be down a flight of four steps from the driveway. Step free pedestrian access from Mount Boone to the lower part of the site would be provided from a point further east of the southeast boundary. The remainder of the existing stonewall along the southeast boundary would be retained. The arrangement is shown on the plan below.

It can be seen from the plan above that the central part of the site, namely the part containing the Proposed House and garden, will be at a height of 55 metres AOD. This means that the finished floor level of the house will be about a metre below the current surface level of the site. The driveway and floor level of the store will be at a level a metre higher than the garden. The Proposed House is of a style normally known as ‘one and a half storeys’ which means that the first floor rooms are built into the roof space. They are usually equipped with dormer windows and sloping ceilings, and the Proposed House has these features. The ridge line of the roof would be a little over 7 metres from finished floor level.

Notably the planning permission includes a condition that the house must be used as a primary residence, not a holiday or second home.

The first applicant is the registered proprietor of land at 28 Redwalls Meadow, Dartmouth, TQ6 9PR, which is registered at HM Land Registry under title number DN726378 (‘the First Property’). The second applicant is the registered proprietor of land located at 28 Redwalls Meadow, Dartmouth, TQ6 9PR, which is registered at HM Land Registry under title number DN752002 (‘the Second Property’) Together, these properties comprise and form the residential dwellinghouse and garden known as 28 Redwalls Meadow, Dartmouth, TQ6 9PR (‘the Property’) which includes the Land.

The Property is subject to restrictive covenants imposed pursuant to Clause 2 of a Conveyance of the First Property and the Second Property dated 5 August 1977 and made between (1) London and County Securities Limited, (2) Richard Norman Darbey Langdon, (3) Chantreys Building Company Limited, and (4) Ronald William Peacham and Joan Peacham (“the Conveyance”). Clause 2 of the Conveyance reads:

“FOR the benefit and protection of the remainder of the Purchasers Redwells Meadow Estate and with the intent so that this covenant shall run with and bind the land hereby conveyed into whomsoever hands the same shall come but so that the Sub-Purchaser shall not be personally liable for any breach thereof committed after he has parted with all interest in the property hereby conveyed the Sub-Purchaser hereby covenants with the Purchaser that he the Sub-Purchaser and his successors in title will at all material times hereafter observe and perform the restriction and conditions set out in the Second Schedule hereto.”

The restrictive covenant that is the subject of the Application is set out at paragraph 5 of Second Schedule of the Conveyance (“the Covenant”) and reads:

“Not to erect any building of any kind upon the land hatched Green on the plan annexed hereto and to lay out the same with trees/shrubs”

The land hatched green is shown on the plan below:

The hatched area extends over part of the Land and the garden adjacent to the existing house at 28 Redwalls Meadow. On my inspection I noticed that the Applicants had constructed a single storey annexe on part of the garden within the hatched area. The annexe was built in breach of the covenant and is not part of this application to the Tribunal.

Section 84 of the Law of Property Act 1925 gives the Tribunal jurisdiction to discharge or modify restrictive covenants affecting freehold and some leasehold land. The section says this:

“(1)

The Upper Tribunal shall … have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied—

(a)

that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete; or

(aa)

that in a case falling within subsection (1A) below the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or

(b)

that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or

(c)

that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction:

and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either—

(i)

a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or

(ii)

a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it.

(1A)

Subsection (1) (aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either—

(a)

does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or

(b)

is contrary to the public interest;

and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification.

(1B)

In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.

(3A)

On an application to the Upper Tribunal under this section the Upper Tribunal shall give any necessary directions as to the persons who are or are not to be admitted (as appearing to be entitled to the benefit of the restriction) to oppose the application, and no appeal shall lie against any such direction; …

Importantly, section 84 confers a discretion on the Tribunal; if any of the various alternative conditions in sub-section (1) are satisfied, the Tribunal may discharge or modify the covenant, but it is not obliged to do so.

The application is for modification of the Covenant to permit implementation of the existing planning permission. It is made under grounds (aa) and (c). The Applicants

Furthermore, the Covenant does not secure any practical benefits to the Land and construction of the Proposed House will not have an impact on the appearance, character or amenity of the area. Lastly, the covenant in its unmodified form is contrary to the public interest as there is a shortage of land for housing in Dartmouth.

Broadly put, the Objectors’ case is that the covenants maintain the aesthetic of the Redwalls Meadow estate, help to control parking and traffic, and reduce instances of trespass and disturbance. They are also concerned that if the covenant is modified it will create a precedent that will result in further unwanted development in the area. Finally, the shortage of housing in Dartmouth is being addressed by the development of Little Cotton Farm which, when complete, will provide 500 new homes.

The Applicants’ submissions followed the sequence used by the Tribunal in Re Bass Ltd’s Application (1973) 26 P&CR 156, in which the Tribunal posed a series of questions to assist in its determination of the application. The first of these questions is 'Is the proposed user reasonable?' Mr Fuller submitted that the use of the Land for the Proposed House was reasonable simply by reason of having planning permission. He noted that the Planning Officer’s Report stated that the Proposed House is ‘considered to be in a suitable location for residential development, and the proposal is considered to accord with the relevant policies of the Neighbourhood Plan’. None of the Objectors addressed this issue and bearing in mind that the Proposed House has planning permission I find that the user is reasonable.

The second question is ‘Does the covenant impede that user?’ Clearly in this case it does.

The third and fourth questions are “Does impeding the proposed user secure practical benefits to the objectors?” and “If the answer to question three is affirmative, are those benefits of substantial value or advantage?” None of the Objectors articulated their concerns with these questions in mind but they all identified a series of practical benefits. These can be grouped together under three headings; firstly, preservation of the aesthetic of Redwalls Meadow, secondly, prevention of nuisance associated with traffic and parking, thirdly, and finally, the covenant restrained the likelihood residential development in the vicinity. I will deal with these in turn, but in no particular order of importance.

Mr Fuller said that as the Proposed House will be located right at the end of Redwalls Meadow and since the Land is at the farthest point from any other dwellings on Redwalls Meadow, there would be no impact on the appearance, character or amenity of the area. He considered that the Proposed House would be a natural extension of the existing linear development of Redwalls Meadow and would maintain the prevailing spacing and style.

The written submissions of nearly all the Objectors refer to the effectiveness of the covenant in maintaining the aesthetic of Redwalls Meadow. Mr and Mrs Preston say that it was “designed as a small estate with open spaces laid with trees and shrubs giving the impression of an open landscape”. Mr Behan and Ms Saunders submit that the covenant “helps to maintain….an open landscape and streetscape which compliments the surrounding environment”. They add that the Land is “adjacent to non-developed natural landscape and that the hatched green land on the plan serves a purpose to maintain an unrestricted view of the landscape not just for the residents of Redwalls Meadow, but the wider community of Mount Boone and Mount Boone Way, therefore maintaining the aesthetics of the neighbourhood, as it was planned originally”.

Redwalls Meadow is a residential cul-de-sac developed on one side only. It is bounded on its northern side by mature trees and open greensward. Beyond the trees, at a distance of about 25 metres (82 feet) from the nearest house, lies the A379 College Way. Dartmouth Fire and Ambulance stations are located immediately to the east. The houses in Redwalls Meadow are generally set back about 5 to 6 metres from the roadway and are irregularly spaced and orientated. Some are on a north/south axis, others are aligned north north east/south south west. The spacing between the house is, by modern standards, quite generous.

I note that the Covenant in its existing form appears to have been drafted with the preservation of aesthetics and amenity in mind. The planning authority recognised the sensitivity of the Land and the conditional planning permission contains measures to control boundary treatment, planting and lighting, all with intention of protecting, amongst other things, ‘the appearance and character of the site and surroundings’.

The question for the Tribunal is to what degree would the aesthetic change if the Proposed House were to be built? In my view none of the attributes I set out in paragraph [27] would change. The Proposed House would be clearly visible from Nos. 27 and 28 Redwalls Meadow and partly visible from the first-floor side windows of Nos. 25 and 26. The owners of No. 27 have not objected. Mr and Mrs Cotton who live at No. 21 assert that they will be able to see the Proposed House from their home. They were on holiday at the time of my inspection and I did not have an opportunity to verify whether they were correct. I calculate that their house is, at its nearest point, some 105 metres (345 feet) from the site of the Proposed House and is located at the highest point in Redwalls Meadow. Mr Behan who lives at No. 22 said at the hearing that he would not be able to see the Proposed House.

Whether it is visible or not, in my judgement a one and a half storey house of modest dimensions on the Land will not have an adverse impact on the aesthetic of Redwalls Meadow. It will appear as a not particularly prominent extension of the existing row of houses on the northern side of Mount Boone, no closer to numbers 21 to 26 Redwalls Meadow than numbers 2, 4 or 6 Mount Boone Way. The planning permission allows for a reduction in height of the site itself of about a metre and the selection of a one and a half storey style of house means that the ridge of the roof will be about 6 metres (20 feet) above the surrounding ground levels. As a result, the Proposed House will be less prominent than either No. 2 or No.16 Mount Boone which are its nearest neighbours.

The plan at [9] above shows the orientation of the Proposed House to be east/west with the frontage parallel to Mount Boone. The Proposed House will be set close to the Mount Boone boundary, presumably to maximise garden space, and most of the windows face away from Redwalls Meadow. Those that do face that way are a small side window in the lounge and some high-level Velux style windows in the first-floor roof slope. Overlooking will therefore be kept to a minimum and is likely to affect only No. 27 and No. 28. I note that the Planning Officer’s report remarked that the proposed development reflected the character and local distinctiveness of the area and would not harm the visual amenity of the site and surrounding landscape.

Taking all the circumstances of this application into account, I conclude that although the ability to preserve the aesthetic conferred by the Covenant is a practical benefit, it is not one of substantial value or advantage.

The majority of objections raised concerns about the degree to which construction of the Proposed House would cause additional traffic and parking problems in Redwalls Meadow. Mr and Mrs Cotton said that the annexe built in the garden of No. 28 had resulted in a property that, as a whole, was available for holiday lettings for up to 10 people. The result had been an increase in traffic and footfall in Redwalls Meadow. They thought that removal of the Covenant would create greater demand for parking, hinder access for vehicles larger than a standard sized car, increase trespassing by those looking for routes to the town centre, and cause disturbance from non-residents using their cars late at night or early in the morning.

At the hearing Mr Behan said that at busy times of the year, visitors to the town parked in Redwalls Meadow and the surrounding streets, and he expressed concern about the pressure on parking and vehicle movements that an additional house would create.

The Applicants position is that the Proposed House will be accessed from Mount Boone and will not cause an increase in traffic in Redwalls Meadow. They deny that the annexe to No.28 has ever been used as a holiday let and at the hearing Mr Hughes explained that the annexe which sleeps two, is used only by visiting family members who park in his driveway. Whether or not the annexe or the house as a whole is used as a holiday let and the degree to which it causes increased vehicular movements and parking issues is not relevant to consideration of a development located in and accessed from Mount Boone.

I find it difficult to reconcile the fears expressed by the Objectors about traffic and parking with the reality I observed in Mount Boone and the surrounding streets. Firstly, the Proposed House is quite modest in size, and it is doubtful that it would appeal to a large family. In my view the prospective purchasers are likely to be a couple, possibly downsizing, or a couple with children. It is probable that they would have two cars, both of which will be accommodated on site. The notion that they or their visitors would park in Redwalls Meadow is questionable. On foot the distance between 21 Redwalls Meadow and the Land is about 225 metres and there is a noticeable gradient. It is much more likely that on the occasions when additional parking is required it would be found on Mount Boone or on the upper parts of Mount Boone Way. The nearest on street parking is less than 30 metres from the Proposed House. It seems to me that if there is a problem with on-street parking in Redwalls Meadow it will not be exacerbated by an infrequent requirement for visitor parking in Mount Boone. The Covenant is not a remedy for those parking issues.

Similarly, it is obvious that any new residential development will create some additional traffic. However, there is no evidence to suggest that the traffic will use Redwalls Meadow; it is after all, a cul-de-sac. In my judgement the Covenant does not provide any practical benefits in relation to parking or traffic generation.

Two of the objectors refer to an increased likelihood of other development in the environs of Redwalls Meadow if the covenant is modified. A site adjacent to No. 21 is of particular concern. Previous attempts to develop this land as a bungalow have failed to gain planning permission. The site is subject to a restrictive covenant which is understood to prevent development.

The Applicants say that modification would not amount to a “thin end of the wedge”. The modification sought would only permit one additional dwelling to be constructed, would have an entirely separate access and would not have access from Redwalls Meadow or form part of it.

They say that the Land is an anomaly in the context of Redwalls Meadow as it is approximately twice the size of the other plots. The Applicants concede that if the Covenant was modified to allow the construction of an additional dwelling in the gardens of Nos. 21-27 that there would be a precedent argument. However, the Land stands alone in the context of Redwalls Meadow, and in practice there is no risk of a precedent for future development.

No evidence has been adduced to demonstrate that the land adjacent to No. 21 is in anyway connected (except in the obvious physical sense) to the development of Redwalls Meadow or that the covenants have anything in common. In those circumstances the modification of a covenant on a site 130 metres away will not make the development of the site in Redwalls Meadow any more or less likely. If an application to modify or discharge the covenant were to be made, the Tribunal would consider it on the facts and make its determination accordingly. In my judgment the Objectors’ concerns about the “thin end of the wedge” are misconceived.  If the restrictions confer any benefit at all in preventing further applications, it is a small one and certainly not of substantial value or advantage.

Returning to the Re Bass questions, the fifth question can be framed as ‘Is impeding the proposed user contrary to public interest? In contrast to the position advanced in pleadings, the Applicants now acknowledge that the “public interest” test is a high bar (see Collins’ Application (1975) 30 P. & C.R. 527) and will only be satisfied in rare cases. They submit that the provision of more residential housing is an important public good but concede that they cannot demonstrate that impeding the proposed user in this case would be contrary to public interest. The Objectors’ case is that there is no need to develop the Land to fulfil housing need as that requirement is being met by development elsewhere in Dartmouth.

Questions 6 and 7 concern compensation if the Covenant is modified or discharged. I will come to that matter shortly.

I now turn to the second ground of application, ground (c). This requires the Applicants to demonstrate “that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction”. The Applicants say that ground (c) may be used firstly where it can be shown the proposed discharge or modification will not injure those entitled to the benefit, and/or secondly as a long stop to prevent vexatious or frivolous objections. They rely on Ridley v Taylor [1965] 1 W.L.R. 611 for authority for those propositions.

In relation to the first of these two limbs, whether there is no injury to those entitled to the benefit the Applicants’ refer to the Lands Tribunal’s decision in Teagle’s Application (1963) 14 P. & C.R. 68 where at paragraph [72] the Tribunal (R C Walmsley FRICS) observed that:

“the criterion is not whether ‘the proposed development’ will be uninjurious but whether ‘the proposed discharge or modification’ will be uninjurious”.

There will be no increase in noise, smells or lighting that would impact the

Furthermore, the Applicants say that the Planning Officer concluded that the proposed house would not cause harm to the amenity of the neighbouring residents, there is no “thin end of the wedge” argument, and according to a valuation report submitted by applicants the proposed modification will not have an impact on the value of the Objectors’. I will come to that report when I deal with compensation.

The Applicants submit that some of the objections are frivolous or vexatious; they concern properties which are far removed from the Land and significant sums in compensation have been sought. The compensation claims were included in the formal notices of objection but no evidence was adduced in support of them.

It will be apparent from my analysis of the evidence that ground (aa) is made out. In the context of this application for a modification to allow the Proposed House to be constructed, none of the practical benefits conferred by the covenant and relied on by the Objectors are of substantial value or advantage. The application, having succeeded under ground (aa), does not need to fulfil ground (c). However, in my view ground (c) is satisfied on the basis of Mr Fuller’s submission concerning amenity. That means I have the jurisdiction to make the modification. The next question is whether I should exercise my discretion to do so?

At the hearing Mr Hughes admitted that he knew that when he built the annexe in the garden of No. 28 he would breach the covenant. He considered that since the covenant was historic, having been implemented some 45 years earlier, and an insurance policy had been purchased to cover any risks arising from a breach, the appropriate measures were in place before construction commenced. He subsequently realised that the proper course of action was to agree a modification with those entitled to the benefit of the covenant or to make an application to the Tribunal. In his closing remarks Mr Fuller noted that the Applicants were not the original covenantor and that the application, taken in the round, had ‘more in favour on the Applicants’ side than in deficit’. In Carl Edward Williams v Aaron John Thompson-Hall & Ors[2026] UKUT 260 (LC) I set out, in [62] to [63], the Tribunal’s approach to its use of discretion in situations whether an applicant had previously breached a covenant.

“62.

Guidance about the degree to which the Applicant’s past conduct should inform the Tribunal’s decision can again be found in Ridley v Taylor, where at 623 B Russell LJ said:

“I do not think that the personality of the applicant or his past behaviour is relevant to the exercise of the discretion. I refer again to the fact that tomorrow an assign may make the same application. I think that the decision (including the exercise of discretion) must be related to the property and its history as such.”

63.

As to the use of discretion, in The Trustees of The Green Masjid and Madrasah [2013] UKUT 0355 (LC) the Tribunal, (A J Trott FRICS), commented at [129] that:

“The purpose of section 84 of the 1925 Act is to enable applicants to obtain modification or discharge of restrictive covenants in circumstances where they can demonstrate statutory jurisdiction. Having satisfied me on the facts, and on the law as applied to those facts, that the Tribunal has such jurisdiction in this case, I am loath to exercise my discretion so as to deny the applicants the relief that they seek. Where jurisdiction has been established I consider that the discretion of the Tribunal to refuse the application should only be cautiously exercised. It should not be exercised arbitrarily and, in my opinion, should not be exercised as, effectively, a punishment for the applicants’ conduct unless such conduct, in all the circumstances of the case, is shown to be egregious and unconscionable. On balance I do not consider that the applicants’ conduct was so brazen as to justify my refusal of their application.”

The facts of each case will be determinative, but in my view the Applicant’s behaviour in this case may have had, in part at least, a pecuniary motive but it falls short of being egregious and unconscionable. Taking all the relevant factors into account, I therefore exercise my discretion to allow the application to modify the covenant. I now turn to the question of whether compensation should be paid to the objectors.

The applicants had the Tribunal’s permission to rely on the evidence of an expert in valuation. They filed a report co-signed by Alastair Kimpton MRICS and Edward Le Masurier MRICS, both partners of CSquared, a firm of surveyors based in Bristol. No letter of instruction was included in the report, but it was clear from Mr Kimpton’s reply accepting the instruction that this was not an expert report at all, but simply a valuation report relating to ‘the value of the covenant burdening the land’. Although it was beyond the apparent scope of the instructions the report examined the value implications of modification of the covenant on the Objectors’ properties, before concluding that the covenant offered no material benefit to the Objectors. It also stated ‘our opinion that the market value of the covenant modification is £0.00’.

In the week before the hearing Mr Kimpton filed an additional document headed ‘Supplemental Expert Statement’. He explained that ‘This statement is provided to supplement my Report and to address the requirements of paragraphs 19.14 to 19.18 of the Upper Tribunal (Lands Chamber) Practice Directions (2024 Edition)’. I presume that the statement was intended to address the shortcomings in the first report and attempt to legitimise it as an expert report.

I have difficulty in accepting the report as expert evidence. Firstly, it appears to have been written by two surveyors, neither of whom were able to accede to the Tribunal’s request that they give oral evidence. Secondly, it was not written as an expert report and a three-page supplement submitted just before the hearing will not convert it into one. It is not compliant with the Tribunal’s Practice Directions, and I therefore attach no weight to it.

The objectors did not rely on expert evidence but some of them requested compensation in sums ranging from £10,000 to £50,000. I am unsure how these figures were arrived at, but I am certain that they are too high. Mr Fuller submitted that if the Tribunal considered compensation appropriate for a slight loss of amenity the figures should be in the range of £1,000 to £3,000. I disagree. Any loss of amenity will be so slight that it would be impossible to quantify its effect on the value of the Objectors’ houses. There are no other reasons that entitle the Objectors to compensation. I therefore make no award.

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 signified its acceptance of the proposed modification of the restriction in the Charges Register of the Property.