Summary

Modifying restrictive covenants on a housing estate to permit a small block of flats to be substituted for an existing dwelling house.

Facts

Application by Colin Moram and Minola Smith for orders modifying the restrictions imposed by a building scheme for the development in 1934 of the Upton Grove Estate in Slough, Buckinghamshire, to permit them to erect a block of eight flats on the combined sites which are the subject of the two references. The site in LP/25/1994 comprises plots 42 and 43 under that building scheme with a joint frontage of 18.5 metres on which stands a single substantial house in a state of some dereliction, which is known as 4 Merton Road. The other reference site (LP/24/1994) is owned by the first applicant alone. It has a frontage immediately adjoining 4 Merton Road to the west, which is some 5 metres wide. It is only 45 metres deep whereas the site of No.4 has a depth of 62 metres. It is occupied by a single storey garage building attached to 4 Merton Road with a free standing sectional garage to its rear. The building scheme provided for some 34 houses on each side and around the end of a cul-de-sac to be known as Merton Road. The scheme required that "only one dwelling house (which may be either detached or semi-detached) together with suitable outbuildings thereto shall be erected on each plot except in the case of Lot 5 upon which one dwelling maybe erected in addition to the original house which may be divided into two semi-detached houses or into two self-contained flats (in the case of Plot 44 a Tennis Pavilion may be erected)". Plot 44 lacked access to accommodate a dwelling and was apparently intended to be laid out as communal tennis courts.

Held

The tribunal member had no difficulty in holding that a block of 4 one-bedroomed and 4 two-bedroomed flats in a two storey building of similar dimensions to the existing house on No.4 together with 13 parking spaces to serve it, such as had been granted planning permission on appeal, was a reasonable user which was impeded by the restrictions the subject of the applications. There was some risk of some minimal injury to the residents of Merton Road from the introduction even at the end of their road of a new traffic generator on a larger scale than would arise from two single dwelling houses. But if there was some apprehension as to injury the Tribunal had to be satisfied that money will be an adequate compensation. None of the objectors had claimed compensation. If none was claimed none would be awarded. As the risk of injury to other residents in Merton Road was very small, the restrictions did not secure practical benefits of any substantial value or advantage to them, the tribunal was satisfied that it had jurisdiction under s.84(1)(aa) Law of Property Act 1925 to modify the covenant restricting development to single dwellinghouses. The applications would be granted to the extent that the combined plots 42 and 43 would be subject to covenants that only one dwellinghouse shall be erected on each of the pieces land... or alternatively one single two storeyed block containing no more than eight self-contained flats with suitable outbuildings may be erected on the combined plots together with the Plot the subject of application 24/1994. No building was to be erected on the said pieces of land to be used for any purpose other than a private residential purposes and the land should not be used other than for purposes ancillary thereto. All houses to be erected and any block of flats to be erected to be constructed principally of brick or stone and to be roofed with slates or tiles. The covenants were accordingly modified. There being no application for costs, no order was made.