LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
IN THE MATTER OF AN APPLICATION
R/36/1989
ANTHONY NICHOLAS – APPLICANT
NO RESPONDENT
Lands Tribunal for Northern Ireland - Mr A L Jacobson FRICS
Belfast - 16th January 1990
This was an application under Article 5 of the Property (Northern Ireland) Order 1978 ("the
1978 Order") for the modification or extinguishment of "covenants as to building and user"
contained in a Fee Farm Grant dated 18th October 1881 of the premises now known as No
14 Derryvolgie Avenue, Belfast made between John Suffern of the one part and William
Richard McCall of the other part under which Fee Farm Grant the yearly fee farm rent of
£35 is reserved.
Extinguishment was requested of the following covenant:"AND ALSO that he the said William Richard McCall his heirs or assigns shall not and will
not at any time during the continuance of this Grant erect on the premises hereby granted
more than one other dwelling house with the necessary out-offices for the same in addition
to the dwelling-house and out-offices already erected on said granted premises by the said
William Richard McCall without the consent in writing of the said John Suffern his heirs or
assigns first had and obtained for that purpose".
Amendment was requested of the following covenant:"AND ALSO that the said William Richard McCall his heirs, executors, administrators and
assigns will during the continuance of this grant preserve, uphold, support, maintain and
keep the said granted premises and every part thereof and all improvements made and to
be made thereon and all houses and other buildings or erections now standing or which
may hereafter be erected thereon in good and sufficient order, repair and condition and will
on any determination of this Grant so leave and yield up the same into the said John
Suffern his heirs and assigns".
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Mr John Morrisey of Counsel (for the Applicant) called Mr Brian Gibson LLB, Solicitor and
Mr Robert Carlisle Greer BA (Hons) ARICS to give evidence.
Mr Gibson gave evidence of his endeavours to trace Mr John Suffern, his heirs and assigns
both at the time that the Applicant was in course of purchasing No 14 Derryvolgie Avenue
and since that time. Mr Greer gave evidence of the physical state of the premises and
commented on all those matters contained in Article 5(5)(a) to (h) inclusive of the 1978
Order which the Lands Tribunal shall take into account in determining whether a covenant
should be modified or extinguished.
The Tribunal finds the following facts proved:1.
The Applicant, Mr Anthony Nicholas, purchased No 14 Derryvolgie Avenue by
Indenture made 8th September 1989 the vendor being Gerard Malmuire Glass.
2.
By Indenture of Lease dated 5th July 1952 between James Balfour McGown of the
one part and Evelyn Hegan of the other part a portion of the premises (forming the
side garden) were demised for the term of 10,000 years from 1 st April 1952 subject to
the yearly rent of one peppercorn.
3.
The above vendor, Gerard Malmuire Glass purchased the premises comprised in the
Fee Farm Grant of 18th October 1981 by a conveyance dated 25th July 1958 subject
to the yearly rent reserved by the Grant and subject also to the Indenture of Lease
dated 5th July 1952.
4.
Gerard Malmuire Glass by Deed of Release dated 4th September 1980 released the
Northern Ireland Housing Association from the covenant contained in the Indenture of
Lease dated 5th July 1952 preventing the erection of building upon the premises
comprised in the Lease of more than one dwelling-house with the necessary outoffices and not to carry on therein or permit to be carried on any trade or business
whatsoever but to use the premises therein comprised as a private dwelling-house
only.
On the land comprised in the said Lease there has been erected a purpose built home
for the handicapped known as the Douglas Bader House, postal address No 12
Derryvolgie Avenue.
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5.
Mr Brian Gibson, Solicitor made extensive enquiries as to the identity of the person or
persons entitled to the benefit of the Fee Farm Rent reserved in the Fee Farm Grant
of 18th October 1881 and the benefit of the Grantee's covenants contained therein.
Those enquiries included:(a)
the normal enquiries made when the premises were purchased by the
Applicant. The £35 annual rent reserved had not been paid nor had it been
demanded for more than 12 years before the purchase date. The vendor's
(Gerard Malmuire Glass) last communication was with T H Cairns & Co, a firm
of solicitors whose practice was taken over many years ago by P A Duffy & Co,
Solicitors;
(b)
an enquiry to P A Duffy & Co resulted in a letter dated 26 th July 1989 which
stated:"We have your letter of 20th inst. We have made a search through the old
accounts of T H Cairns & Co, but we cannot find any reference to a ground rent
of £35.00 per annum and we can find no reference to William Richard McCall
or John Suffern.";
(c)
advertisements were placed in the Irish News dated 7 th September 1989 and in
the Belfast Telegraph of the same date. Those advertisements requested any
person or persons having or claiming to have the right to claim the £35 per
annum reserved by the Grant dated 18th October 1881 to contact Mr Gibson
within fourteen days. Notice was also given that an application (ex parte) was
to be made to the Lands Tribunal to extinguish certain covenants in the said
Fee Farm Grant.
There was no reply to either advertisement nor has anyone since the expiry of
the fourteen days made contact.
6.
No 14 Derryvolgie Avenue is a three-storeyed detached house containing the
following accommodation:Ground floor:-
Vestibule, entrance hall, 3 reception rooms, kitchen,
scullery, linen room, pantry, WHB & WC, conservatory.
First floor:-
4 bedrooms, 2 bathrooms with WC.
Second floor:-
4 attic bedrooms, linen store.
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Enclosed yard, double garage and greenhouse.
Rateable Value:- £490.
The house, built over 100 years ago is in poor repair and there is a serious outbreak
of dry rot in the ground floors.
7.
Planning permission was granted on 18th December 1989 for the "proposed
conversion and extension to the existing premises to provide ten apartments".
8.
As far as the matters to be taken into account under Article 5(5) of the 1978 Order:(a)
"the period at, the circumstances in, and the purposes for which the
impediment was created or imposed";
Derryvolgie Avenue and the streets immediately adjacent were developed at the end
of the last century for prominent members of the business and professional classes.
The probability is that the covenant was imposed to secure a uniform quality of
dwelling at a reasonable density to tone in with development on neighbouring sites there being no planning control as known today.
(b)
"any change in the character of the land or neighbourhood";
Because of smaller family units and rising maintenance costs there has been a trend
towards sub-division of large houses into flats, demolition of some houses to make
way for purpose built apartments, some use for offices or for education purposes.
Many family homes remain.
(c)
"any public interest in the land, particularly as exemplified
by any development plan adopted under Part III of the Planning (Northern
Ireland) Order 1972 for the area in which the land is situated, as that plan is for
the time being in force";
No interest from the relevant statutory bodies is known nor is any public interest in the
land shown in the adopted development plan for this part of Belfast.
(d)
"any trend show by planning permissions (within the meaning of that Planning
Order) granted for land in the vicinity of the land, or by refusals of applications
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for such planning permissions, which are brought to the attention of the
Tribunal";
Planning permissions have been granted:(i)
for purpose-built apartments on two tennis courts adjacent to St Brigids RC
Church;
(ii)
for purpose-built flats on land nearly opposite No 14 Derryvolgie Avenue;
(iii)
for office development at No 2 Derryvolgie Avenue;
(iv)
for the Douglas Bader Home at No 12 Derryvolgie Avenue.
(e)
"whether the impediment secures any practical benefit to any person and, if it
does so, the nature and extent of that benefit";
The evidence of Mr Greer was that no practical benefit was secured to any
person apart from the right to receive the £35 per annum Fee Farm Rent. The
adjacent house at No 16 Derryvolgie Avenue has been converted to flats and
No 12 is the home for the handicapped and neither occupier derives any
benefit from the covenant.
(f)
is not relevant to this case.
(g)
"whether the person entitled to the benefit of the impediment has agreed
expressly or by implication, by his acts or omissions, to the impediment being
modified or extinguished".
The erection of the Douglas Bader Home in the former side garden of No 14
Derryvolgie Avenue has never been objected to by the person entitled to the benefit of
the covenant. By his omission so to do by implication he has agreed to modification
or extinguishment of the covenant.
(h)
"any other material considerations".
The only other material consideration put in evidence was the planning permission
granted to the Applicant on 18th December 1989 (at 7 above).
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It was submitted by Mr John Morrisey of Counsel that the statutory criteria have been met
for the covenant to be extinguished.
As far as the request to extinguish the first covenant above:The Tribunal accepts on the evidence that the impediment, if not modified or extinguished,
would unreasonably impede the enjoyment of the land. All of the facts proved in evidence
for those matters in Article 5(5) of the 1978 Order which must be taken into account either
support this application or at least are neutral. Planning permission has been granted - no
doubt after neighbour notices were issued by the Department of the Environment for
Northern Ireland. The Fee Farm Rent of £35 per annum has not been paid for many years
nor has it been demanded in any way. The erection of the Douglas Bader Home some
years ago on part of the premises contained in the Fee Farm Grant of 18th October 1881
thus contravening the covenant but no objection nor any other communication has been
received and the Tribunal accepts that by implication the person entitled to the benefit of
the covenant by his omissions has agreed to the extinguishment or modification of the
covenant.
The Tribunal therefore grants the application to extinguish the following
covenant in the Fee Farm Grant of 18th October 1981, viz:"AND ALSO that he the said William Richard McCall his heirs or assigns shall and will not
at any time during the continuance of this Grant erect on the premises hereby granted more
than one other dwelling house with the necessary out-offices for the same in addition to the
dwelling house and out-offices already erected on said granted premises by the said
William Richard McCall without the consent in writing of the said John Suffern his heirs or
assigns first had and obtained for that purpose".
The only evidence under Article 5(6)(b) of the 1978 Order concerning compensation was
given by Mr Greer that the person entitled to the benefit of the covenant is in the same
position as any ground rent landlord and that compensation should be NIL or a nominal
amount.
The Tribunal agrees that the security for the ground rent would not be affected by granting
this application and therefore accepts the only evidence viz:- compensation is NIL.
As far as amendment of the second covenant above:- the amendment suggested was as
follows:-
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"AND ALSO that he the said William Richard McCall his heirs, executors, administrators
and assigns will during the continuance of this Grant preserve, maintain and keep the said
granted premises and every part thereof and all improvements made and to be made
thereon or all houses and other buildings or erections now standing or which may hereafter
be erected thereon in good sufficient order, repair and condition and will on the
determination of this Grant so leave and yield up the same but without prejudice to the right
of the said William Richard McCall his heirs, executors, administrators and assigns to
demolish all or any one or more than one or any part of the houses buildings or other
erections for the time being standing on the said granted premises for the purposes of
constructing thereon new buildings (whether of a similar type to the existing buildings or
otherwise) and/or converting, extending, reconstructing and renovating any or any part of
the houses, buildings or other erections for the time being standing thereon and for the
purpose of carrying out all works ancillary to any such construction conversion extension
reconstruction and renovation".
In this instance, the Lands Tribunal does not accept the impediment, if not modified, would
unreasonably impede the enjoyment of the land, and in looking at those matters in Article
5(5) of the 1978 Order finds none which supports this application for modification. The
Tribunal rejects modification of this covenant.
ORDERS ACCORDINGLY
Mr A L Jacobson FRICS
5th February 1990
Lands Tribunal for Northern Ireland
Appearances:
Mr John Morrisey of Counsel (instructed by Brian Gibson LLB, Solicitor) for the
Applicant.
No Respondent.
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