Notes of General meeting 26 January 2022

By - Painshawfield

Notes of the Special Meeting of the Painshawfield Batt House and Birches Nook Estate Covenantors held at 7.30 pm on Wednesday, 26 January, 2022, in the Stocksfield Community Centre

Present: Committee members

Matt Harris, Tobias Zimmerman, Helen Rae, Tim Gammons, Brian McGurk, Clare Byrne, David Elliott, Maryanne Spoor

Apologies: Stephen Gilroy, C Smedley

Apologies were also received from M Bishop

Secretary

Dr George Petrides, who is a resident on the estate had agreed to Chair the meeting on behalf of the EC (Estates Committee).

  1. Introduction:

HR, Chair of the EC, explained that the meeting was a special meeting called by the Estate Committee for the purpose of discussing, with all covenantors, the application to the Lands Tribunal (LT) to modify the restrictive covenant brought by the owners of 21 Cadehill Road.  It was not an EGM. 

At their request, the owners of 21 Cadehill Road would give a presentation of their grounds for making an application to the Lands Tribunal to modify the covenant.

  • Presentation by 21 Cade Hill Road (21CHR) to explain the Grounds for the submission to the Lands Tribunal (LT) to Modify the Covenant – Ms Moore/Cairns

The Applicants stressed that they are not solicitors so were unable to discuss legal aspects of the application.  Issues:

  • The EC had known of their intention to apply to the LT for several months, and were aware that papers would be served, from 20th December.  The EC letter of 8 January stated they wished to remove or modify the Covenant.   This is not the case, and they are applying only to modify the Covenant and that this will apply to their land only (not ‘opening flood gates’. The LT specified that:
  • The submission would be notified in local newspaper
  • Displayed on their land for 28 days
  • A binder with information should be available for viewing for 28 days.   This is held at Finest Properties, Corbridge.   This includes the approval from Northumberland County Council (NCC) planning department, demonstrating amenity requirements were met.
  • Papers would be served to 13 houses (?14) near or adjacent to their property, the EC Secretary and Muckles.  The applicants advised repeatedly that householders should view the information binder and seek independent legal advice.  
  • The award of Planning permission in 2010 by Northumberland County Council, had commented that the plans met the character of the area
  • In 2019, there was an application to the LT for a modification to the covenant to allow a house to be built on a 1/3-acre plot  on Batt House Road.  The then EC objected and spent more than £16,000 on legal fees before eventually making an out of court settlement.   The then EC member made statements which were either false or contained ommissions

End of Presentation

  • Questions from Covenanters to the Applicants:

Question David Glendinning , Meadowfield Road: What did 21CHR hope to achieve by their application to the LT?   How would this be expressed?  

Reply: “this will only affect our plot, they have NCC consent, no other plots are affected”.

Question Paul Westbury: The Covenant includes the provision for aggrieved applicants to call an EGM.   Why have they not done so?  

Reply: “we called an EGM in 2020, when the current EC was voted in though this was to discuss planning issues.  

Question Steve Alston: Were the owners of 21 CHR aware of the Covenant and its restrictions when they purchased their property?

Reply: “Yes.  Plans are within guidelines”.

Question: Muriel and Ken DeVere – it is a pity that this is causing disagreement between neighbours.  No-one is fooled by the plans to replace the bungalow as it has an external staircase, and flats are specifically not allowed under the covenant.

Reply:  This is provision for a home office.   A property on the Estate already has a flat. 

Question: Mr McGhee, Meadowfield Road – Are you planning to live in either of the properties?  

Reply:  Yes, one.   In response to a question from Clare Byrne, the applicants stated that they would be living in the front house but that is irrelevant.  

The owners of 21 CHR reiterated that all home owners should seek legal advice from their own solicitors.  

20.05 Ms Moore/Cairns left the meeting

For clarity, The Chair read out the Public Notice, displayed on 21CDR.   (See separate file)

Helen Rae, Chair of the EC, stated that the primary aim of the meeting was to get an understanding of whether home-owners value the covenant and whether they want the EC to defend it.  So, the views of people present at the meeting, and on Zoom were important. If a majority of people want to defend it, that will be demonstrated by:

  1. The number of objections
  2. The amount of money donated to the fighting fund

The EC received notification in late December that papers would be served imminently.  This prompted the first letter to all covenantors on the estate on 6th January 2022.  The LT papers were served on 13 January.  The EC sent a second letter to covenantors a week later.   What is the likely effect of modification of the Covenant?  

  1. KM had stated that this would only affect 21CHR, but it would set a precedent.  
  2. The majority of homeowners contacted so far had been supportive
  3. The remit of the EC is to approve or reject applications.  The EC is democratically elected and now has 11 serving members.  
  4. The ultimate costs of defending the action are unknown, but a lack of donations would indicate a lack of appetite for defence.  

Response from Nick Algar (Apperley Road) – 21 CHR are mistaken about previous applications to the LT.   This was corroborated by P Westbury (31 Cade Hill Road), no application was made to the LT in 2019.  

  • How the Covenant works to protect the character and amenity of the Estate – David Elliott

DE said that he had lived on the estate for about 20 years and had been born in Stocksfield.  His aspiration was to live on the Painshawfield Estate and was warned prior to purchase of the restrictions of the Covenant.   In fact, the Covenant was viewed as an advantage.  

What is ‘character and amenity?’   All new buildings and/or modifications are carried out with the permission of the EC.   The sole remit of the EC is to approve or reject plans.  Many plans are approved, some are rejected and some modified.   The Deed of Covenant has ensured low density and no back-fill, and this has been supported by numerous AGMs.   People buying houses are reassured by the Covenant.   There has been over the years some side-fill and some building on fields and paddocks.   We pay a premium to live here, and we expect that premium to be recouped on sale.   Painshawfield Estate is defined by and ensured by the Covenant. 

  • Overview of Grounds for refusing the Application to develop 21 Cade Hill Road -Tim Gammons

TG said that he had lived on the Estate for 2½ years.  This part of the meeting is to set out the approach taken by the EC over the last few years in relation to the submitted Planning Application at 21 Cade Hill Road.  It references correspondence between the EC and 21 Cade Hill Road and also communication from the EC to Covenantors.

The submitted proposal is for one single 5 bedroom dwelling on just less than 0.6 acres and one single 5 bedroom dwelling on 1/3 acre.

The proposals considered by the EC were submitted on 5th May 2020 and replicated the plans submitted to Northumberland County Council approximately 10 years earlier in 2010.

Generally the information is provided in chronological order.

Reference Estate Secretary Newsletter April 2020….” A significant change was made to the planning rules recently: the minimum plot for building new properties was reduced from 1 acre to 1/3 acre”…..”the Committee is tasked with maintaining the ‘character and amenity’ of the Estate – essentially making sure the Estate isn’t overrun by overdevelopment”……

Reference K Moore/C Cairns Letter to Estate Secretary 5th May 2020 ……..”we now submit our planning request”…..”With the proposal now within the framework of the D4 model”…..

D4 means Data Driven Density to inform Decisions and was developed by a Covenantor to assess relative density across the estate looked at by road and plot size.  It is a tool to inform of building density and is not intended to make a decision on character and amenity as density is only one aspect.  Essentially it is a mathematical formula trying to solve a non-mathematical question and cannot therefore be the only consideration.  For eg, a one storey, two storey or three storey building with the same footprint would provide the same mathematical ratio, yet the visual impact would be very different.

Reference correct Estate Website as at 24 Jan 2022 …..”each individual residence must be built on a plot size of ½ acre minimum, with 1/3 acre considered in exceptional circumstances”.

It was stated that 1/3 acre is an exceptional circumstance.

Reference EC Secretary Letter 15th November 2020 to 21 Cade Hill Road  ….At a meeting on 11th November ……I regret to say your application was not approved.  Should you wish to discuss future plans with the Committee, please do get in touch.”

Reference EC Secretary Letter 18th December 2020 to 21 Cade Hill Road ….”your application was refused on the grounds of not being in keeping with the character and amenity of the Estate …However, as expressed at meetings previously, the Committee does feel there is scope to consider two homes on the site, and there is an open offer to have informal discussions about the nature of such plans.”

Reference EC Secretary Letter 5th January 2021 to 21 Cade Hill Road ……“extant planning permission from Northumberland County Council”. The Council works in accordance with the Town and Country Planning Act 1990. The Committee works in accordance with the Deed of Mutual Covenants 1895. The decision of one does not bind the other.”……… you attended a Committee meeting in March 2020, during which you discussed your intentions at that time, as they had been since at least 2016, which were to retain the existing bungalow and build one new house” hence making it unclear what the intentions are at the site.

Reference EC Secretary Letter 5th March 2021 to 21 Cade Hill Road….. “The Committee’s view is that the current plans represent overdevelopment of your site. One substantial new house or two smaller bungalows may be more likely to gain approval.”

Reference EC Chair’s Letter to Covenantors 23 August 2021 explaining the status of the application at 21 Cade Hill Road …….”The Committee rejected the plans in November, mainly because the proposal posed an overdevelopment of the site to the detriment to the character and amenity of the estate, and approving it would set a precedent that would also be detrimental to the character and amenity of the estate”……..” Recently, the applicants requested a meeting with the Committee to consider a way forward, so, two weeks ago, a meeting was held with them.   There was however, there was no movement on plans that had been previously submitted and no agreement to engage with mediation on the part of the applicants”…..” Successive Committees consider that the plans represent over-development of the site in a way that is incompatible with the character and amenity of the Estate.”……. “The current EC informed them that one substantial new house or two smaller bungalows may be more likely to gain approval .”…..

Reference EC Chair’s Letter to Covenantors 8th Jan 2022  …..”Generally, consent to build has been granted by the EC in accordance with the aim of preserving low density, discouraging sub-division of plots that could be damaging to the general character of the Estate, and preventing inappropriate development”……

Reference EC Chair’s Letter to Covenantors delivered 20 Jan 2022  “………Successive committee have given 3 formal refusals on the plans to develop the site……”

HR spoke to reinforce a number of messages from this presentation:

  1. Successive ECs have refused the development from 2008 onwards. 
  2. A lot of time and effort has been invested in the case over these years with a view to encouraging the owners to consider options that would meet the requirements of the covenant. 
  3. Mediation: when they approached the EC to consider mediation, a meeting was held, but the outcome was stalemate, there were no attempt at mediation

The Estate has spent a lot of money over the years and all of that money has come from the pockets of home owners.

Comment – Paul McPartlin, Cade Hill Road: the documents on the website describe ‘ancillary accommodation’, therefore this is not integral.  

Comment – Martin Hughes, Birches Nook Road: in 2005, a previous owner had an application for a division of the plot rejected.   Would 21CHR have details of all applications, including refusals?  In 1995, there was a joint application with 23 Cade Hill Road for both properties.

  • Implications for all Covenanters – Impact on Value if Modification of Covenant is agreed.  Brian McGurk

BMcG moved to the Estate 14 months ago, because it was low density and rural.   For this he paid a premium.   The 21CHR application states that if consent is given, the LT will award compensation of 5% of value to Covenanters.   Can 21CHR afford this?    He had been informed that in 1987 Storey Sons and Parker estimated the value of properties on the Estate were in their opinion 5% higher than they would be if the covenant was not in place.   The position is that the Tribunal will look on each case on its merits and may award less or more than 5% on a case by case basis.   Changing the Covenant affects all Covenanters, not just immediate neighbours.   He considered that anyone wishing make an objection, to fill in the compensation required box on the objection form.  

Question:  Ed Laschet, Meadowfield Road.  He echoed the importance of the Covenant to the Estate and asked if objectors are liable for costs?   

Reply BMcG – There is no liability for costs for the objectors.  21CHR are liable for costs if they lose. 

Comment: Paul Westbury – emphasised the LT rules on above.  

George Petrides emphasised:

  1. There is one month from 13 January for objections to be lodged.   Lack of objection will indicate approval
  2. Fighting the action will depend on sufficient donation to the fund.  

Question – Angela Thomas, Cade Hill Road – Will guidance be given on how to proceed?  

Reply: Helen Rae, explained that the official LT objection forms must be used and will be on the website, together with guidance on completion (based on expert advice).  This is guidance; objectors can use their own words.   When all objections are ready, the EC will collate and send them to Muckles solicitors.  

Question: Judy Allen, Apperley Road. 21CHR, reiterated several times the need for individual legal advice.   Why?  

Reply:  There is no need for individuals to take advice, this was viewed by many as scare tactics.  

Comment:  Colin Chance, he was disappointed in the applicants’ action.   21CHR would have known about the Covenant on purchase.   They moved in November 2007 and by August 2008 they wrote the design and access statement.  They are acting as developers, ie for profit.   This has serious repercussions for the Estate.   They have been refused three-times, they didn’t mediate, therefore this action should be contested.   £300 is a minimal amount for most householders.   This property is liable to flooding, the climate is changing, this will be exacerbated by building and impact on biodiversity.

Question – Rodney Ecclestone, Batt House Road.   Moved to the Estate 38 years ago.  They support the EC in maintaining the environment.   The end of the 21CHR presentation referred to development on Batt House Road.  

  • Costs of Defence, whether contributors will be exposed to loss.  

In the absence of Mike Bishop, Clare Byrne read out part of his email re expert advice received from Charles Morgan:-

I can see the main question that will arise from homeowners is that a previous EC set a precedent in allowing Batt House Road build and so how can we argue against the current application/plans of 21 Cade Hill Road.

Other than the LT is considering modification of the Covenant affecting everyone and has different considerations, is the answer that a legal EC acting, “honestly and in good faith and not for some improper purpose” (Bouch case) is not bound by previous decisions?  Judge Millet’s comments from High Court in Price v Bouch (1986) are extremely helpful: “private, local law, democratically administered” and clause 14 allowing the EC to preserve the character and amenity of the Estate. The judgment in Lakeman (1911) is helpful, referring to delegation of all development questions to the EC, which must be assumed to fairly represent the views of the covenantors who elected them. Judge Neville also says the EC can reject plans which may seem unobjectionable,” because of their impropriety in their opinion of their position”. J. Millet endorses this judgment in order to preserve the character or amenity of the estate .

Charles Morgan’s opinion in 2009 said,” the message from the courts has consistently been one to support the thankless task of the committee” and he says the EC has very wide discretion to reject an application to build a new house on any ground relating to amenity and character. Charles Morgan also referred to Millet’s decision on the guidelines and concluded, ”in the course of denying the court’s jurisdiction to investigate the reasonableness of a committee decision on plans” and then refers to Millet’s judgment on the voluntary and unpaid nature of the EC.

Question: George Staice Can we have a summary of the reasons for refusal?  

Reply: a statement will go on website.  

Question: The Paddock – Query re template for responses – will this seem orchestrated?  

Reply from David Glendinning who advised that covenantors should write their objections in own words to show the diversity of opinion.   It would be tactical to follow the guidance from the LT, who recommend mediation and assisted (?) dispute resolution.   Possibly a letter from the solicitor seeking 3rd party mediation or ADR

Clare Byrne – the grounds chosen by the applicants are very specific, there is therefore a need to address these in responding on the objection form.  

Question – how will advice be shared

Reply: the advice from the expert, Charles Morgan, will be received by the EC.   The EC will prepare a paper based on this opinion and provide it to covenantors.  

Comment – Tim Hill, Apperley Road – The objections need to cover the legal stuff, therefore the template will be useful, but should also be personalised.   It is regrettable that the EGM was not used by the applicants to make their case, but was solely used to undermine the EC.  

Paul Westbury: the EC should request an extension of time from the LT.  NB an application can be made but there is no guarantee that it will be granted.   A majority of people present in the rom and on Zoom voted in favour

Some concern was expressed that the applicants will have access to the information on the website.  It was agreed that this was immaterial as they would find out anyway. 

Notes of this meeting will be on the website.   –

Question: How will the rest of the Covenanters be contacted? 

Reply: Matt Harris – letters, website and word of mouth. 

A show of hands was requested for:

  1. Number of those present planning to object (50 + 20 online)
  2. Number of people planning to donate to the fund – majority

Helen Rae thanked all present and online for their attendance and support, stressing, ‘we are all in it together’.