LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL & COMPENSATION ACT (NORTHERN IRELAND) 1964
PROPERTY (NORTHERN IRELAND) ORDER 1978
IN THE MATTER OF A REFERENCE
R/62/2004
BETWEEN
OAKLEE HOUSING ASSOCIATION – APPLICANT
AND
DR R F A LYNAS – RESPONDENT
Re: 19 Rosetta Avenue, Belfast
Lands Tribunal
The Honourable Mr Justice Coghlin
and
Mr M R Curry FRICS IRRV MCI.Arb Hon.FIAVI
Belfast – 10th June 2005, 28th June 2005 & 31st August 2005
1.
Article 4 of the Property (Northern Ireland) Order 1978 gives the Lands Tribunal power to
define the scope etc of impediments including restrictive covenants affecting the enjoyment of
land.
Article 5 gives the Tribunal power to modify or extinguish impediments in certain
circumstances.
2.
The house at 19 Rosetta Avenue, Belfast dates from 1880 and was a family dwelling. It is a
large double-fronted mid-terrace house, one of 8 in a terrace (No’s 7, 9 to 21) on a broad
residential avenue of some 32 properties. Rosetta Avenue is off the Ormeau Road, a major
arterial route to the city centre. Development within the avenue took place in 2 major phases the original Victorian phase that includes this terrace and then an inter-war development of
substantial two-storey semi-detached houses. More recently a two-storey block of 4
apartments has been built at the junction with Ormeau Road and a new house added at the
other end of the avenue. There is easy access to bus routes, local churches, shops, doctors’
surgeries, parks and other neighbourhood facilities. The Rosetta area is accepted to be a
good quality residential suburb. The avenue is quite unusual compared with other roads in the
vicinity in that it comprises properties in single-family occupation only. The side of the avenue
that includes no 19 together with a substantial part of the Rosetta area has been designated
an area of Townscape Character. As such, it is intended that the character of the townscape,
which derives from the extensive use of red brick, groups of trees associated with church
properties and the trees which line some of the roads, will be protected and enhanced through
development control.
3.
The property was probably let on short tenancies until 1958. Now it is held under a long lease
for a term of 3,900 years from 15th February 1958 (‘the 1958 lease’). The successor in title to
the lessors is Dr R F A Lynas; the successor in title to the lessee is Oaklee Housing
Association (‘Oaklee’) who acquired the premises about December 2002. There is a covenant
in the 1958 lease and that is at the heart of this reference:
“The Lessee will not use or permit or suffer to be used any house or building erected or
to be erected on the said demised premises for the sale of spirituous or alcoholic
liquors or for the carrying on therein of any noxious noisome or offensive trade or
business or otherwise than as a private dwelling house or for professional purposes
without the written consent of the Lessors.”
Tribunal’s emphasis
4.
Colin J W Henry instructed by Philip Crossey, solicitors appeared for Oaklee. Mark T Horner
QC and Adrian Colton instructed by J M Hughes & Co, solicitors appeared for Dr Lynas. Mr
Alistair S McQuoid and Mr Christopher J Callan, both experienced chartered surveyors gave
expert evidence. Ms Maria Garvey, the leader and Director of Services of L’Arche Belfast
gave evidence about their existing home at 563 Ormeau Road and their intentions for Rosetta
Avenue. Mr Edward Cooke, a chartered surveyor gave evidence about the process by which
Oaklee had selected and adapted the house, and planning matters. Mr Adam Alexander,
Development Manager for Oaklee gave evidence about the acquisition of the house and the
intended agreement with L’Arche. Mr James McAleer gave evidence as a representative of
the residents and neighbours. The Tribunal is grateful for the contribution made by all these
persons to its consideration of the difficult and sensitive issues that have had to be addressed.
5.
Oaklee is a Registered Housing Association with charitable status. It is one of the largest in
Northern Ireland.
Its objects include providing housing and any associated amenities for
persons in necessitous circumstances upon terms appropriate to their means. Oaklee works
in partnership with a number of organisations including L’Arche in providing a comprehensive
and holistic care and support provision for people with special needs including those with
learning disabilities. Oaklee now works with some 30 charitable organisations and Health
Trusts to meet special needs. It has developed a scheme for providing supported housing by
way of what it terms ‘a Joint Management Agreement’ and receives capital grant aid from the
Department of Social Development for the provision of accommodation.
6.
L’Arche Belfast is part of the International Federation of L’Arche Communities founded in
1964. It is a faith community and a charity having among its objects the provision of care and
support to persons who have a learning disability. The Charter states:
“Home life is at the heart of the L’Arche community … people live, work, pray and
celebrate together sharing their joys and their suffering and forgiving each other as in a
family”.
L’Arche aims to provide a family setting in which small groups of residents, usually supported
by roughly equal numbers of carers, may live together in small-scale, everyday housing within
local neighbourhoods. The Tribunal acknowledges that the aim of integration into a local
community reflects a sensitive and enlightened approach to persons with learning disabilities
and recognises that one of the conflicts close to the heart of this case is that such a policy may
well be thought best suited to primarily residential areas.
7.
Oaklee intends to enter into a Joint Management Agreement with L’Arche as a result of which
the house would be used to provide accommodation and support for 4 such permanent
residents. The scheme would be similar to that already implemented nearby at 563 Ormeau
Road. Here there would be 2 resident carers and other assistance from outside the house.
L’Arche use the terms ‘core members’ to refer to the 4 residents and ‘assistant members’ to
refer to the 2 carers.
For convenience only, the Tribunal adopts that terminology.
The
assistant members would be L’Arche volunteers who would have their own room and receive
free bed and board and a stipend. Tenancy agreements for them are a matter of discussion at
present.
8.
Internally the accommodation comprises, on the ground floor, a hallway, 2 reception rooms,
WC, kitchen, working kitchen/utility, small yard with outside stores.
On the first floor it
comprises 2 front bedrooms, a rear bedroom, WC, bathroom and hot press and on the second
floor it has 2 front bedrooms, a rear bedroom and a shower room. There is a long back
garden. Oaklee has already refurbished the interior to a very good standard and fitted fire
safety devices such as fire-resistant doors with spring loaded closers and an integrated smoke
detection system.
Externally Oaklee have made some changes but none that would be
inconsistent with other houses in the avenue.
9.
Within the house, core members would each have a key to their own room. They would be
assisted by the assistant members to participate in ordinary household tasks and a family
lifestyle. They would require more support than the resident assistant members could provide
and additional resources would be brought in as required. On weekdays transport would be
provided to take the core members to and from training centres. The house would not operate
as a day care centre.
10.
Dr Lynas has considered representations from the other residents in the avenue (’the
residents’). The objections of the residents have nothing to do with the aims of L’Arche, which
they consider laudable.
Nor do they have any objections to the core members or assistant
members. This case does not concern such issues. Their main concern is that the proposed
use would result in a significant change in the character of this street, which is comprised
entirely of single-family occupations. The precedent, they say, would lead to the introduction
of other public/institution uses and the decline and eventual destruction of this community of
family houses. That risk is said to be real and demonstrated by developments nearby. Dr
Lynas has declined to give consent to the proposed use.
11.
The issues before the Tribunal are:
a. Does the proposed use constitute a breach of the covenant;
b. If it does, should the covenant be modified to permit the proposed use; and if so
c. How should it be modified, if at all?
A breach of the covenant?
12.
In C & G Homes Limited v Secretary of State [1991] 2 All ER 841 Nourse LJ at 847 concluded:
“These authorities show that the question of fact and degree which has to be answered in
each case will involve a consideration of all or some of the following matters: the number
of occupants; the degree of permanence of their occupancy; the relationship between
them; whether payment is made or not and, if so, whether it is only a contribution to
expenses or something more; and whether the owner or lessee resides there himself and,
if not, whether he has people there to supervise those who do.”
Later at 849 he said:
“In summary, I would say that if a house cannot fairly be described as someone’s private
dwelling house it cannot be said to be being used as such. I therefore ask myself the
question which was asked by James LJ in German v Chapman (1877) 7 CHD 271 CA:
whose private residence can it be said to be? …”
13.
The Tribunal has carefully considered the evidence of Ms Garvey and Mr Alexander and also
a number of documents, bearing in mind that these may be modified if they are found not to
properly represent the intentions of the various parties. The documents include:

The proposed funding agreement between Northern Ireland Housing Executive (’the
Housing Executive’) and L’Arche;

A draft Oaklee Tenancy Agreement together with;

The draft Illustrated Oaklee Tenancy Agreement for use by tenants with
learning disabilities; and

The Tenants Support Agreement;

The proposed Joint Management Agreement; and

The specimen lease between the core members and L’Arche as “managing agent for
Oaklee Housing Association” at 563 Ormeau Road.
14.
Precise and complete legal analysis of the documents is difficult but the intentions would
appear to be as follows:
15.
There are distinctions between housing services, housing support services and personal care
services. Oaklee is funded to provide housing services (basically accommodation) for such
persons as the core members. Support services are intended to provide practical support that
enable vulnerable people to live as independently as possible in the community. They do not
include personal care services.
16.
The Supporting People programme, which was introduced in N Ireland in about 2003 (after the
Ormeau Road scheme), changed the way in which support services are commissioned and
funded. Article 3(3) of the Housing Support Services (Northern Ireland) Order 2002 (‘the 2002
Order’) and the Housing Support Services Regulations (NI) 2003 define support services.
These may include, for example,

General counselling and support;

Life skills training in maintaining the dwelling;

Assistance and supervision on the use of domestic equipment and appliances;

Advising or assisting with personal budgeting and debt counselling;

Assisting
or
advising
in dealing
with benefits, claims and other
official
correspondence;

Controlling access to individual service user’s rooms;

Cleaning of core members’ own rooms; and

Encouraging social intercourse and arranging social events.
Support services do not include the provision of housing or accommodation management.
17.
The 2002 Order confers on the Housing Executive the function of providing support services.
In this case the core members would be “eligible service users” and it proposes a Funding
Agreement, which would fund L’Arche for such long term services over 3 year rolling periods.
The funding would go directly to L’Arche as “an independent service provider”.
18.
Under a separate agreement, termed the Joint Management Agreement, L’Arche propose to
contract with Oaklee to provide these support services for the core members:
“1.12 [L’Arche] shall be responsible for the provision of all appropriate and necessary
care, support and assistance to the [core members] at all times.”
19.
Further, under the Tenant Support Agreement, the individual core members will contract with
Oaklee to accept these support services:
“2.2 To meet the needs of the [core member] [Oaklee] has agreed to give
assistance to the [core member] by the provision of various Support Services to
be administered by support staff engaged by [Oaklee] or [Oaklee’s] Agent.
2.3
The [core member] has agreed to accept the conditions of this addendum to
allow the [Oaklee] to provide the Support Services to the [core member].
3.
This addendum to the Tenancy Agreement places an obligation on the part of
the [core member] to partake of the Support Services provided by [Oaklee’s]
agent.”
20.
The Tribunal notes that it appears to be proposed that L’Arche will provide the support
services as agent for Oaklee.
21.
There is more to the proposed Joint Management Agreement. Mr Horner QC strenuously
argued that it is intended to be a lease. The Tribunal accepts that it has some features of a
lease and that there are provisions, for example those in regard to insurance and parting with
possession, that are ambiguous.
However for the reasons outlined below and having
particular regard to the absence of any provision expressly granting a term or fixing a rent to
be paid by L’Arche and the surrounding circumstances including the proposed Oaklee (not
L’Arche) illustrated Tenancy Agreements; the nature of the scheme; and the evidence of Mr
Alexander in particular, it concludes that it most probably is intended to be an agency
agreement for the management of the accommodation.
22.
The recitals include the provision of accommodation management:
“Whereas
(C)
The Association holds the premises listed in the Second Schedule (“the
accommodation”) for the estate and interest set forth therein.
(D)
With a view to furthering their respective objectives and utilising their individual
experience, both the Association and the Agent are desirous of co-operating, as
provided in this Agreement, in the development and management of the
accommodation.
(F)
Both parties have rights and obligations under this Agreement and mutual
responsibilities in respect of the upkeep and standard of accommodation.”
23.
The terms are then set out and include express provisions in regard to overall control and
responsibilities:
“1 Management
1.1
The overall control of the accommodation shall remain with [Oaklee] but subject
thereto [Oaklee] appoints [L’Arche] to be the managing agent of
the
accommodation …
1.2
[L’Arche] shall be responsible for the selection of persons to be accommodated and
allocation of units within the accommodation and for the engagement of sufficiently,
adequate and capable supervisory staff in general for all matters relating to the day
to day running of the accommodation.
1.6
[L’Arche] shall be responsible for collecting all charges due from the persons to be
accommodated. [L’Arche] shall be responsible in full for any operating deficits
thereby arising.”
24.
From the oral evidence, the selection of core members is not intended to be a matter
exclusively for L’Arche but is intended to be a joint decision between Oaklee/L’Arche and the
Northern Ireland Housing Executive.
25.
Under 1.6 above there is a reference to “collecting all charges due” rather than “rent”. But the
evidence is that the amount would be about £20 per person per week.
26.
The Tribunal now turns to the proposed contract between Oaklee and the core members. On
the evidence presently before the Tribunal, it will not be the draft Oaklee Tenancy Agreement
but will be the draft Illustrated Tenancy Agreement. As a result of the nature and degree of the
disability of the core members it seems likely that some or all of the terms of such a contract
may not bind the core member.
But the Tribunal notes that the proposed contracts are
intended to be between Oaklee, not L’Arche, and the individual core members. Further it is
clear from the evidence that the accommodation proposed to be provided to the individual core
member will amount to providing a bedroom, which will be under the individual’s control, and
shared use of reception rooms and other facilities.
So that Oaklee may comply with
requirements relating to obtaining their capital funding for the accommodation it appears that
security of tenure for the core members is essential and the Tribunal accepts that it is
proposed that the core members have security of tenure.
27.
In this case there are competing claims to whose (if anybody’s) private residence it can be
said to be. Can the house fairly be described as the private residence of the core members
(individually or as a group), or L’Arche or Oaklee or some combination thereof? That requires
determination of both the issue of use and that of whose house it is. In the view of the
Tribunal “whose house it is” must be determined first because there may be various activities
going on in the house but it is the use made by that person or body that is the relevant use. In
the case of a body, consideration of its objects often is central to an understanding of the
activities on the premises.
28.
“Whose house it is” is a matter of fact and degree rather than legal possession.
In the
particular circumstances of this case all are matters of anticipation as there are as yet no
formal agreements in place.
29.
Mr Henry BL suggested it would be the core members who house it would be. Mr Horner QC
suggested it would be L’Arche’s.
30.
Clearly, L’Arche do intend to try to create a family lifestyle for the core members. But whether
the control of the house is to be with L’Arche or with Oaklee, the Tribunal concludes that
control is not intended to be with the core members individually. As individuals, the core
members will treat the house as their permanent home and they will have security of tenure.
But, to whatever extent it is possible for them to have control, they will have control of only
their own room. The shared parts of the house and the rooms of the 2 assistant members
clearly will not be controlled by them. A core member cannot decide who will share the
accommodation and is excluded from the rooms of other core members. There is a charge
made for the individual’s place in the accommodation and which is not based on any
agreement about the sharing of expenses among the core members.
Under the Tenant
Support Agreement the core member must “partake of the Support Services provided by the
Landlord’s agent.” It is not the core members who organise their lives in the house.
31.
The Tribunal also concludes that control is not intended to be with the core members as a
group. It accepts that there are circumstances in which the house might be let to a small
group of students, for instance, without any breach (see the discussion on use by students in
Roberts v Howlett and Others [2002] 1 P&CR 19). But although the number of core members
is small, each is intended to have tenure as individuals, not as a group. As a group, they will
not control the shared parts, the rooms of the 2 assistant members, or individual’s rooms.
Unlike students who come together as a group the relationship between the core members is
not based on selection by each other; L’Arche, Oaklee and the Housing Executive make the
selection from those members of the public on the Special Needs Waiting List.
Members are
encouraged to develop bonds with one another but they cannot decide who will join or leave
the group.
32.
Ms Garvey emphasised the aim of creating a family-like environment in which the core
members may treat the house as their permanent home; but that does not make them a family
or displace the responsibility taken on by Oaklee and L’Arche to provide supervision and
support for them.
33.
The Tribunal was referred to Chief Adjudication Officer v Uprichard [1999] (NI) 331 but in his
judgment Carswell LCJ considered C & G Homes and made clear that the determination was
based on the Social Security (Disability Living Allowance) Regulations (NI) 1992 which involve
very different considerations from those applicable to the context of a covenant for the use of
premises as a private dwelling.
34.
Mr Henry BL suggested that the key factor in C & G Homes was the public responsibility in the
form of the role of the Secretary of State. It may have been a particular consideration in that
case but the Tribunal does not agree that the ratio of that decision is that there must be a
public interest in the house before it can no longer be said to be someone’s private dwelling.
35.
But if control of the house is not to be with the core members individually or as a group, is it to
be with L’Arche or with Oaklee?
36.
The experts agree that:
“The property is to be occupied by an organisation called L’Arche whose primary
purpose is to provide “support and care for people with intellectual disabilities”.
However the Tribunal does not take that to be conclusive.
37.
When Oaklee’s agent applied for planning permission in March 2003, he applied for change of
use to
“Sheltered accommodation for people with learning difficulties.
Property to be
owned/maintained by Oaklee. Occupancy to be managed by L’Arche, Belfast.”
Again, the Tribunal does not take that to be conclusive.
38.
In the view of the Tribunal the answer to the question of “whose house it is” is “Oaklee’s or
L’Arche’s but most probably Oaklee’s (with L’Arche as their agent)”. Over and above the
support services that are focussed on the core members rather than the accommodation there
is a special need for management of the accommodation in the proposed circumstances. As
individuals the core members could not properly be expected to arrange insurance, maintain
the interior of the house etc.
The appointment of L’Arche as agents of Oaklee for
management of the accommodation is consistent with that requirement. That arrangement is
separate from L’Arche’s obligations in regard to support services and neither appears to be
dependent on the other continuing.
Whatever the contractual status of the tenancy
documents, and the position may differ from that at the Ormeau Road house, it is Oaklee not
L’Arche that will provide secure tenure for the core members.
39.
If it is either Oaklee or L’Arche intending to use it for the purposes of their objects, set out at
the beginning of this decision- and no one suggested that they might be intending to use it
otherwise- then it would not be a private dwelling house. So, for the purposes of determining
“whose private dwelling house can it be said to be?” it may not really matter whether it is
Oaklee or L’Arche or both because the proposal is to use it for the provision of housing and
associated amenities for persons in necessitous circumstances and for the provision of care
and support to persons who have a learning disability. The core members cannot be left to
fend for themselves and require assistance at all levels for their day to day needs. Oaklee or
L’Arche or both would have a responsibility for the support and supervision of the core
members and would propose to discharge those responsibilities.
L’Arche chooses the
associate members. Neither Oaklee or L’Arche would be using the house as their private
residence, but as a residence for such members of the public chosen by them in conjunction
with the Housing Executive as being acceptable core members together with such carers who
were chosen by L’Arche as being acceptable associate members. The core members are not
to be guests. They will pay for their places and are intended to enjoy security of tenure. (See
Falgor Commercial SA v Alsabahia Inc [1986] 1 EGLR). It would be a home for persons who
have a learning disability.
40.
Mr Henry suggested that the appropriate approach might be conceived as a continuum with
this proposal falling somewhere between the circumstances of a group of students coming
together to take a house (which would not be a breach of the covenant) and the Secretary of
State’s proposed use for public purposes in C & G Homes Ltd (which would). The Tribunal
does not agree. There is a clear distinction between use as a private dwelling and use that is
not that of a private dwelling.
41.
In summary, returning to the tests propounded in C & G Homes, the Tribunal notes that the
number of occupants will be small and the occupancy of each individual core members is
intended to be secure and permanent. But the relationship between the individuals that is
founded on their selection by L’Arche, Oaklee and the Northern Ireland Housing Executive,
based on taking individual rooms with shared parts; the charges made that are more than only
a contribution to expenses; the responsibilities of Oaklee and L’Arche in regard to
management of the accommodation, the supervision of and care for the core members, and
the presence of their assistant members there take the use outside what constitutes the
ordinary use of a private dwelling house. Despite the acknowledged laudable aim of creating
a family-like setting, under the proposed arrangement it could not be said to anybody’s private
dwelling house. The Tribunal concludes that the proposed use would constitute a breach of
the covenant.
Should the covenant be modified to permit the proposed use?
42.
No issue arose in connection with the alternative use for professional purposes.
43.
In this case the covenant permits change of use with the consent of the lessor. In McGrath v
O’Neill R/41/2004 the Tribunal held that the withholding of consent may amount to an
unreasonable impediment under the 1978 Order.
44.
In his affidavit Dr Lynas gave this reason:
“It is important for me as the landlord that the user covenant remains in force so as to
ensure the continued success of this community for families”.
But the Tribunal makes clear that it is not embarking primarily on a review of the actions of Dr
Lynas. It is a review of the decision so as to test its effect in terms of reasonableness or
otherwise in the context of the 1978 Order.
45.
Article 5(5) sets out matters that the Tribunal shall take into account. Some may be dealt with
shortly. There is no suggestion that the impediment consists of an obligation to do anything.
The Tribunal has reservations as to whether the impediment secures any practical benefit to
Dr Lynas.
He is a geographically remote lessor and the Tribunal doubts whether a
harmonious relationship with his lessees is a practical benefit in the sense intended by the
1978 Order.
46.
There was some concern about the impact on the avenue that would flow from the to-ing and
fro-ing as a result of the need for support from carers not living on the premises. This would
be intensified as a result of the reduction made in the number of associate members so as to
comply with the planning policy discussed later. But the objection of the lessees is mainly a
thin end of the wedge objection. They say that the practical benefit of the covenant was and is
the preservation of the private residential amenity and character. If this non-private residential
user were permitted, the integrity of the private residential character of the avenue would be
compromised because it would create a precedent. Other non-private residential users would
follow because bidders for use as a house in multiple occupation or for institutional purposes
could out bid private family purchasers and the avenue would not continue as a community of
private houses. That would lead to deterioration in its amenity and character and eventually
disintegration of the family based community.
Both experts agreed that this problem is
manifest in Belfast and there was undisputed evidence of that happening nearby.
47.
The experts disagreed as to what should be considered to be the neighbourhood for purposes
of the 1978 Order. As often happens, examination of a wider area revealed more change.
Within the Avenue there has been some increase in the number of residential units and that is
consistent with a general increase in residential density over a wider area. Although there are
non-private residential uses, including institutional uses and houses in multiple occupation in
the wider area, no such other uses occur in Rosetta Avenue and, it was accepted that it would
be unreasonable to use their existence as grounds for importing such uses to the avenue.
48.
It was pointed out that of all of the some 32 properties in the avenue were in single-family
occupation but the Tribunal notes that the covenant does not require single-family occupation.
49.
The Tribunal notes that the lessor’s interest extended only to numbers 3-21 (‘the holding’) on
the north side of Rosetta Avenue and not the whole avenue. In deciding whether or not to
permit the proposed use Dr Lynas took into account not only the objections of those within the
holding but also the objections of other members of the Rosetta Residents Group (‘the group’).
This included all the residents of Rosetta Avenue. There is no evidence before the Tribunal as
to whether or not other dwellings in the Avenue are subject to similar restrictions.
50.
In common with most of the other leases within the holding, the 1958 Lease recites previous
disposals and the intention to dispose of the remainder of the holding.
Mr Horner QC
suggested there is an estate scheme within the holding. The Tribunal does not agree, mainly
because there is no indication in the leases of an intention that the covenants were to have
any reciprocity and the last lease created does not have a corresponding recital. That being
so those within the holding have no right to compel the lessor to take their views into account
and thereby prevent him from permitting a change of use. They certainly would have no right
to override a consent given by him.
However, the nature of the permitted use and the
circumstances of the exclusively private dwelling users at the time the impediment was
created suggest that any views put forward by these neighbours should be taken into account
in the exercise of the discretion. The weight to be attached to them is another matter. In the
view of the Tribunal the benefit is not directly secured to the neighbours but it was reasonable
for Dr Lynas and is reasonable for the Tribunal to take those views into account.
51.
The Tribunal attaches significant weight to the objections of these neighbours. They are
informed objections: they took a real interest in what was happening; they attended the
Ormeau Road premises and met with L’Arche; they were aware of the adverse consequences
nearby as a result of the introduction of non-private uses; and some families in the Avenue
have members with learning disabilities. Their opposition was not confined to the proposed
use but was to all non-private dwelling uses in principle.
52.
The Tribunal attaches much less weight to the views of the group but the fact that they joined
in does add something to the prospects of the avenue continuing as a community of private
dwellings and thereby the likely wider effectiveness of this covenant.
53.
Research by the experts revealed that there had been a refusal for office use at no. 1 in 1979
and a refusal for a change of use to multiple occupancy at no. 8 in 1985. But, for planning
purposes, as a result of a change in the Use Classes Order, there now is no impediment to the
introduction of this or other similar uses in the Avenue. This case illustrates that. Earlier in
2003 Oaklee had applied for:
“Change of use from residential dwelling to residential institution (class 13) …”.
Class 13 was a reference to the Planning (Use Classes) Order (NI) 1989. In September 2003
the Development Control Group of the Planning Service concluded:
“[We] consider proposal inappropriate in context of this terrace property and impact on
and risk of precedent for changing the character of this part of the [area of townscape
character] which is predominantly in single family occupation”.
The application was withdrawn. Later, the Planning (Use Classes) Order (NI) 2004 changed
the definition of dwelling houses. Class C1 became:
“Dwelling Houses – use as a dwelling house (whether or not as a sole or main residence)
(a) by a single person or by people living together as a family; or
(b) by not more than 6 residents living together as a single household where care is
provided for residents”.
Oaklee had intended to cater for more members but by reducing the numbers they then
brought the proposed use within class C1 and the Planning Service confirmed that planning
permission would not be required. If the proposed use were introduced, it is difficult to see
how the planning service could resist the precedent it would create for other than private
dwelling uses. The conclusions they reached in September 2003 would be irrelevant. In the
view of the Tribunal the change in planning policy underscores the importance of the control
provided by this type of covenant.
54.
It is clear from the evidence that this avenue is not the only possible location. There are other
places in the locality where there are substantial residential communities but, unlike this
avenue, they include a mixture of other uses.
55.
Although Oaklee had proceeded with the purchase and carried out special adaptations and
refurbishments at substantial cost the Group at all times made clear their opposition.
In
January 2003 Dr Lynas wrote to Oaklee drawing attention to the covenant and confirming that
he would not be granting an easing of it. There was no response.
56.
The Tribunal concludes that the covenant entered into by the lessor and lessee and the effect
of the decision by the current lessor does not unreasonably impede the enjoyment of the land.
The integrity of the private dwelling character of the holding at the time it was created has
been maintained. The grounds of opposition of all those others who are part of the holding are
principled and valid. They prize its now unusually private dwelling character, as does Dr
Lynas. The precedent that this user would create would inevitably lead to the demise of this
character. The Tribunal agrees with them that it is not unreasonable, in these circumstances,
that the character should be preserved.
How should it be modified if at all?
57.
In light of the undoubted sincerity and laudable aims of L’Arche and Oaklee, much thought
was given to whether this particular proposal could be permitted without the creation of a
precedent. In particular permission was suggested for
“use for the provision of accommodation for not more than 6 residents living together as
a single household where care may be provided for all or some of the residents”.
Mr Horner suggested that this proposed modification would still create a precedent. The
Tribunal agrees and with regret concludes that any modification that permitted this particular
proposal would compromise the integrity of the covenant.
58.
The Tribunal therefore finally concludes that the proposed use would constitute a breach of the
covenant and the covenant should not be modified to permit the proposed use.
ORDERS ACCORDINGLY
19th May 2006
The Honourable Mr Justice Coghlin and
Mr M R Curry FRICS IRRV MCI.Arb Hon.FIAVI
LANDS TRIBUNAL FOR NORTHERN IRELAND
Appearances
Colin J W Henry instructed by Philip Crossey, solicitors appeared for the Applicant.
Mark T Horner QC and Adrian Colton instructed by J M Hughes & Co, solicitors appeared for
the Respondent.