The Painshawfield, Batt House and Birches Nook Estate is an area of low–density housing situated in the valley of the River Tyne. It was established by a Deed of Mutual Covenants days 30 May 1895.
This deed established a co-operative scheme on the part of fifty three mutual covenantors (the “Mutual Covenantors”) for the acquisition, lotting and sub-division amongst themselves for building purposes of land which now comprises the Estate. The Mutual Covenantors are bound by the terms of the Deed of Mutual Covenants and in particular the restrictive covenants contained in that Deed. The Deed of Mutual Covenants is registered in the Charges Register and HM Land Registry. In 1995 the Book “Four Valuable Farms” by Robert Browell was published to mark the centenary of the Estate. This was reprinted in 2013 and copies are available to purchase.
Since 1985 the Mutual Covenantors and their successors in title have elected and Estate Committee (the “Estate Committee”). Estate Committees have those powers and duties conferred and imposed on them by the Deed of Mutual Covenants.
The Estate Committee has engaged in litigation on only two occasions: Lakeman v Moat (1911) and Price v Bouch (1986). Both cases were heard in the High Court. The Estate committee succeeded in both cases. Copies of these judgments are available on request to the Estate Committee.
In Price v Bouch Mr Justice Millet made observations to the following effect:
For 90 years the Mutual Covenant has formed a private, local law democratically administered by a committee elected by a majority of the owners. The present committee has the powers conferred on it by that deed. No dwelling houses or other buildings shall be erected unless the plans thereof have first been submitted to and approved by a majority of the committee. Clause 14 of the covenant was to enable the committee to preserve the character and amenity of the estate by withholding or granting permission. The mutual covenantors are bound by the decision of the committee , whether it be a decision to grant or refuse approval, provided only that it is given honestly and in good faith and not for some improper purpose.
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David Elliott, Helen Rae, Stephen Gilroy, Tobias Zimmermann, Matt Harris, Tim Gammons, Brian McGurk, Maryanne Spoor, Philip Moore, Clare Byrne and Chris Smedley.
Secretary to the Estate’s Committee is Elizabeth Purcell Smith as a non-voting member.
Helen Rae is the Chairperson of the Estate Committee.
The policy of the Estate Committee is that:
All applications to increase the density of housing on the estate by the sub-division of existing plots or otherwise will be considered on their merits and in particular whether approval would be detrimental to the character and amenity of the estate.
The committee shall continue to regulate extensions to, or demolition and replacement of, existing properties on the estate by: applying the Mandatory Criteria and the Discretionary Criteria; ensuring buildings do not exceed the established building density; with an absolute minimum plot size of one third of an acre.
Power of the Committee
The powers conferred on the Estate Committee by the Deed of Mutual Covenants (“the Deed”)
Clause 14 of the Deed of Mutual covenants provides that:
A majority of the Mutual Covenantors may at any duly convened meeting fix the position of building lines on any part of the estate and no dwelling house , coal house, hen house, cow byre, stable, piggery, greenhouses or any other building whatever shalt be built, erected or set up upon the land lying between the said building line and the road or roads abutting upon each lot, and such majority may appoint a Committee of not less than nine members chosen from the Mutual Covenantors whose duty it shall be to inspect plan of dwelling houses and other buildings proposed to be erected and no dwelling house or other building shall be erected unless the plans thereof have forts been submitted to and approved by a majority of such committee.
This clause grants the Mutual Covenantors two distinct powers
a) Powers to fix building lines on the Estate
b) Powers to elect an Estate Committees without whose approval no dwelling house or other building may be erected on the Estate.
The building lines at (a) supra were fixed prior to June 1896 and have remained unchanged since that date: they are referred to hereafter as “The Mandatory Criteria”
They appear on a plan dated 21st June 1896
The Estate Committee’s powers at (b) supra remain unchanged: they are referred to hereafter as “The discretionary Criteria”
The criteria applied by the Estate Committee in determining applications
The Mandatory Criteria
- Batt House Road and New Ridley Road: 12.2 metres
- Crabtree Road and Birches Nook Road: 8.2 metres
- West Side of Adams Band: 8.2 metres
- Ridley Mill Road: 3.0 metres
- All other roads: 18 Metres
- In any new development, including a new highway, the minimum building line shall be 15.2 metres
Note – The mandatory building lines cannot be changed by the Estate Committee. They serve to prevent buildings being erected any closer to roads than the prescribed distances. In effect they create strips of land abutting all roads on the Estate. The Committee has no discretion when considering applications to build on those areas and must refuse approval to any application that would contravene these restrictions. The distances stated have been updated to the metric system. As the High Court has recognised, the power of the Committee to grant or refuse approval is not limited to a mere determination of whether or not the proposed buildings fall within the areas of restriction set out in the Mandatory Criteria; were that the full extent of the Committee’s powers it would be powerless to protect the character and amenity of the Estate by refusing approval to buildings proposed to be erected on that vast majority of the Estate that falls outside the Mandatory Criteria restrictions; the Committee would not for example be empowered to refuse approval to any proposal to build even multiple dwelling houses on an existing garden area.
The Discretionary Criteria
- The Estate Committee apply the following Discretionary Criteria:
- The minimum plot frontage shall be 33 metres
- No part of any dwelling or extension shall approach closer than 4.6 metres to a single boundary, except in the case of an extension or alteration to provide a single storey garage or car port which shall not approach closer than 0.9 metres to a boundary
- No part of any non-habitable outbuilding (garage, shed, greenhouse etc.) shall approach closer than 0.9 metres to a boundary
- The design and materials used for extensions and alterations shall match or blend with those of the existing building. For new dwellings the design and materials chosen shall harmonise with existing development win the vicinity. Natural materials of good quality and weathering properties are to be preferred. Short lived materials and corrugated metal will not be acceptable
- The boundary of each property should be marked and the design and materials of any fencing must harmonise with the surroundings
Note – Successive estate Committees have established discretionary criteria to apply when considering applications and by which the have sought, in the words of Mr Justice Millet, “to preserve the character and amenity of the estate by with-holding or granting permission”. These discretionary criteria (commonly referred to as guidelines) have in recent decades been published to :
- provide guidance to prospective applicants whether their applications is likely to receive approval
- prevent any perception the applications are considered in an inconsistent or arbitrary manner
- ensure that a consistent and structured approach is taken by the Estate Committee
The discretionary Criteria are merely guidelines, therefore, if the Committee receives an application that does not conform to the criteria/guidelines it may still exercise its discretion to grant approval if it decides that the proposal would not be detrimental to the character and amenity of the Estate or set a precedent which would be so detrimental. Conversely the Committee may exercise its discretion to refuse approval to a proposal that conforms to the criteria/guidelines if it decides that to grant approval would be detrimental to the character and amenity of the estate or set a precedent that may be so detrimental.
When considering applications it is incumbent on the Committee in every case in the words of Mr Justice Millett, to ensure that the decision is “given honestly and in good faith and not for some improper purpose”
Policy on Minor Deviations
P3 certificates are issued to confirm that building work has been completed in accordance with approval granted by the Estate Committee. The Estate Committee does not give retrospective approval for building works undertaken without full application to and prior approval by the committee. This approval is given by the granting of a P2 certificate.
The committee deems building works to remain in progress until such time as application is first made for a P3 and that certificate is either granted or refused. Where a deviation from the approved plans does occur, it is advisable to inform the Estate Committee as soon as possible to request assistance. The committee may consider an application to deviate from approved plans as a new application and may consult neighbours potentially affected by such changes.
In the event of any deviation or other building work undertaken without prior approval, the Estate Committee may:
- Issue a P3 if it is of the view the deviations are such that they would certainly have been approved had they been included in the original application, or
- Refuse to grant a P3, or
- Refuse to grant a P3 and take legal action to secure compliance with the approved plans and the provisions of the Deed of Mutual Covenants.