Zenios v Hampstead Garden Suburb Trust Limited

A body empowered to preserve the amenities of a defined area may act as guardian of the public interest in that area, although it is not a public body amenable to judicial review. Its consent decision is independent of the local planning authority’s decision. Planning permission is relevant, but it does not dictate the exercise of the body’s power.

Under section 84 of the Law of Property Act 1925, money cannot adequately compensate a representative body for damage to the public amenity it protects. The Upper Tribunal may also treat the likely encouragement of similar development as a factual planning consequence, rather than a legal precedent.

The appellants sought to build a first-floor extension above their garage at a house in Hampstead Garden Suburb. Their transfer and the applicable scheme of management prohibited external alterations without the respondent Trust’s consent. Although the local planning authority granted planning permission, the Trust refused consent.

The appellants applied to modify the restriction under section 84(1) of the Law of Property Act 1925. The Upper Tribunal (Lands Chamber) dismissed the application in [2010] UKUT 260 (LC). It accepted that the proposed extension would harm the area’s character and create an undesirable factual precedent for similar development.

The appeal concerned whether those findings were perverse and whether the Trust had to follow the planning authority’s grant of permission when exercising its separate management function.

1. Appeal dismissed. Laws LJ, with whom Toulson and Black LJJ agreed, held that the Upper Tribunal had made no error of law in refusing modification of the restriction.

2. The Tribunal was entitled to prefer the Trust’s architectural evidence. Its findings that the extension would undermine the garage’s subordinate appearance, reduce openness and adversely affect the area’s character were supported by the evidence. The possibility that another tribunal might have reached a different planning assessment did not make the actual assessment perverse.

3. The Tribunal was also entitled to consider the proposal’s likely effect in encouraging comparable applications. This was not the creation of a legal precedent. It was a factual assessment of the development’s probable impact on the character and amenities of the area. The fact-sensitive reasoning in Vertical Properties Limited did not undermine that conclusion.

4. The Trust’s relevant function was the preservation and maintenance of the suburb’s amenities. It could therefore properly be described as protecting the public interest in that local amenity, notwithstanding that it was not a public body for judicial-review purposes. The reasoning in Re Martin supported the conclusion that money could not sensibly compensate such a body for loss of the public amenity it guarded.

5. The Trust was required to make its own consent decision. The grant of planning permission was a relevant consideration, but it did not drive or fetter the Trust’s discretion. Neither the scheme of management nor section 84 of the Law of Property Act 1925 required the Trust to defer to the planning authority where the considerations overlapped.

6. On the construction of section 84(1A), adequate monetary compensation was a condition of relief under section 84(1)(aa). That condition was not met because the disadvantage to the local public interest could not adequately be compensated in money. The appeal, being on a point of law only, disclosed no basis to interfere with the Tribunal’s decision.

• Court of Appeal (Civil Division): dismissed the appeal and affirmed the Upper Tribunal’s refusal to modify the restriction: [2011] EWCA Civ 1645.
• Upper Tribunal (Lands Chamber): dismissed the application under section 84(1) of the Law of Property Act 1925: [2010] UKUT 260 (LC).