Over Taylor Biggs

Both grounds were recently considered by the Lands Tribunal in a case concerning a single storey extension above a garage on the Hampstead Garden Suburb in north London.

The owners obtained planning permission for their extension.  However, under their deeds they also required the consent of Hampstead Garden Suburb Trust.  The Trust's objective is to preserve the character and amenities of the Suburb.

The Suburb is renowned architecturally and regimes have been imposed to protect and preserve it.  Initially this was achieved by covenants imposed by Leases.  When the Leasehold Reform Act 1967 introduced rights for leaseholders to acquire their freeholds, a special scheme of management was implemented under the Act, enabling similar restrictions to be enforced against freehold owners.

Further covenants had been imposed when this particular house was transferred in 1979.  The owners challenged the covenants that prohibited what they wanted to do and under the scheme of management.  They asked for modifications to both to allow the extension to be built.

The Tribunal found that the Trust had the ability legally to enforce the restrictions in line with its stated purpose of preserving the amenities of the Suburb.  If the modification sought would have no adverse effect on the amenities, the Trust would not be affected and one of the grounds mentioned earlier would be satisfied.

If there were adverse effects but these were insubstantial, the first ground would also be satisfied.  Here it could not be said that the Trust would suffer no disadvantage - the usual way in which previous similar cases have succeeded against an objecting public body.

Paying compensation to the Trust would not be suitable in this case as this would weaken the power to control development and to maintain and preserve the character of the area.  Although the Trust was not set up by Act of Parliament, it had been given management powers that were regarded as necessary to ensure maintenance and preservation of the Suburb.

The Tribunal felt that obtaining planning permission should not be the determining factor to limit the Trust's discretion to permit extensions.  The restrictions gave the Trust more control than the local planning authority.  The owners had not consulted the Trust or taken advice from Conservation Officers.  Interested parties had criticised the extension.

The Tribunal concluded that the extension would be contrary to the design concept of the house and adversely affect the contribution that the house made to the character of Hampstead Garden Suburb.  It felt that the Trust was justified in refusing its consent for the extension.  There were concerns that to decide otherwise might set a precedent for future applications.  It was eager to avoid any kind of identifiable threshold of permitted development, as this might more readily erode the character of the area and reduce the number and scope of future applications.

Zenios and 25 Ingram Avenue London NW11 July 2010: Upper Tribunal (Lands Chamber)