James Anthony Farrell v Hugh Garforth-Bles & Anor

Introduction

1. This is an application by the owner of a property (‘the Property’) in Fulham Palace Road, London for the modification of covenants (‘the Covenants’) that restrict the use of the Property. Specifically, the applicant would like to be able to let or otherwise dispose of the Property for a use within the current planning use Class E which includes a range of commercial activities such as shops and restaurants. Those uses are currently prohibited by the Covenants.

2. The objectors are firstly Mr Garford-Bles, the long leaseholder of a flat in Bishop’s Mansions, an adjacent mansion block, and secondly, Bishop’s Mansions Limited (‘BML’) who own the freehold of Bishop’s Mansions and are the management company. Both have the benefit of the Covenants.

3. I inspected the Property on the morning of 9 October accompanied by Mr Farrell, and two directors of BML, Mr Alastair Gillespie and Mr Ryan Timoney. I also inspected a number of flats within Bishop’s Mansions and the communal gardens at the rear.

4. At the hearing Mr Farrell represented himself and Ms Christy Buzio represented BML. Mr Garford-Bles limited his involvement to the filing of his objection and did not attend the hearing. BML filed eighteen witness statements from its directors, leaseholders of flats in Bishop’s Mansions and their tenants. I do not intend to itemise them all here but will refer to them as necessary when I consider BML’s submissions. The factual background

5. The Property is a detached two storey building which appears to date from the turn of the last century. It has brick and rendered elevations and a pitched clay tiled roof. It was said at the hearing to have originally been the letting office and caretaker’s house for the neighbouring Bishop’s Mansions, but nothing was adduced in evidence to confirm that to be the case. Mr Farrell acquired the Property in 1983. He said that the ground floor had been used as an estate agency office until 2023 and the first floor had been let to residential tenants. Since 2023 the ground floor of the Property has been vacant and despite having been marketed by two firms of commercial estate agents, a tenant has not been found.

6. The ground floor area has a large bay window and was extended in 1998 by the construction of a structure akin to a domestic conservatory with a mono pitch glass roof. As a result, almost all of the frontage to Fulham Palace Road is glazed. Internally the Property has wooden laminate floors, plastered walls and a suspended acoustic tile ceiling with inset fluorescent lighting. Central heating is provided by means of radiators and there is a ceiling mounted air conditioning cassette. All the windows are double glazed.

7. The ground floor area totals 51.94 m 2 (559 ft 2 ) and is divided between a sales area, rear office and WC. A pair of French doors provide access to a small patio and rear garden which together extend to 68.75 m 2 (740 ft 2 ). The first floor lacks the bay and conservatory feature and is therefore smaller than the ground floor. The garden is grassed but currently about a third of the area is occupied by a timber shed.

8. The Property is located on the western side of Fulham Palace Road close to its junction with Bishop’s Park Road. Fulham Broadway is 0.8 miles to the north east and the River Thames about 0.3 miles to the south west. Central London is about 3.5 miles to the north east. The immediate environs of the Property are predominantly residential although there are some non-domestic uses nearby including a small garden centre and several coffee shops and restaurants.

9. Bishop’s Mansions comprises eleven, three storey blocks of mansion flats facing on to Bishop’s Park Road and a further four storey block in Stevenage Road. There are 148 flats in all. The mansion flats occupy the entire length of Bishop’s Park Road and overlook the Rocks Lane Bishop’s Park Tennis Centre and the neighbouring athletic field.

10. To the rear of the blocks is a private communal garden which is laid to grass and shrubs. It is available for all the residents in Bishop’s Mansions to use. The plan below shows the spatial relationship between the Property and the nearest blocks. It also shows the arrangement of each block with two rectangular flat roofed sections projecting rearwards from the pitched roofed blocks facing Bishop’s Park Road. These projections create a courtyard which is used by the residents of each block as an area where they can sit outside when the weather allows. At the rear of each of the blocks is a row of small, brick built coal sheds which are now used by residents for general storage.

11. The plan additionally shows the accessway from Fulham Palace Road to the rear of the Property and the communal parts of Bishop’s Mansions. Originally this area was not secured but latterly (since the Property was acquired by Mr Farrell) a tall fence and gate have been erected.

12. The plan below shows at greater scale the dimensions of the Property and a right of way (on the left-hand side) which provides access to the garden. The gate is positioned next to the to the rear corner of the Property about 2.3m (7 ft) short of the full extent of the right of way. BML undertook these alterations and Mr Farrell has been provided with a key. The Covenants

13. The Covenants are contained in a transfer of the Property dated 4 March 1983 between (1) Swallow Securities, (2) James Anthony Farrell, (3) Keith Lawrence William and (4) David Toogood. So far as material, Mr Farrell, as Transferee, covenanted: (ii) Not to use the First Floor of the property hereby transferred other than as a private residential flat or subject to the provisions of Clause (iv) as professional offices. (iii) Subject to the provisions of Clause (iv) not to use the Ground Floor of the property hereby transferred for any purpose other than as professional offices and not to use the Ground Floor and the First Floor as one entity other than as a private dwelling house or as office is subject to the provisions of Clause (iv). (iv) Not to use the property hereby transferred or any part thereof for any wholesale retail noxious noisy or offensive trade or business nor for any illegal or immoral act or purpose nor as a Club Betting Shop Sex Shop or Amusement Arcade or Leisure Centre nor for any public Exhibition or Show or Political Meeting nor as a Restaurant or Snack Bar and not to allow on the said property or any part thereof anything which is or maybe become dangerous offensive combustible inflammable radioactive or explosive.”

14. The benefitted land is Bishop’s Mansions. Planning

15. In July 1991 an application was made for a change of use of the ground floor of the Property from Class A2 of the Town and Country Planning (Use Classes) Order 1987 (offices) to Class A1 (retail shop). The local planning authority (the London Borough of Hammersmith and Fulham) determined that the change did not require planning permission.

16. In 2019 Mr Farrell obtained planning permission for a change of use of the ground floor to a two bedroom, self-contained flat. In his application he noted that the Property ‘was set outside a general commercial area’ and that other empty units in Fulham Palace Road ‘may be preferable for use as future commercial properties rather than utilising 540 Fulham Palace Road’. The legal background

17. Section 84 of the Law of Property Act 1925 gives the Tribunal jurisdiction to discharge or modify restrictive covenants affecting freehold and some leasehold land. So far as relevant to this application it says this: “(1) The Upper Tribunal shall … have power from time to time, on the application of any person interested in any freehold land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction on being satisfied— …(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete; or (aa) that in a case falling within subsection (1A) below the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user; or (b) that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction, whether in respect of estates in fee simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed, have agreed, either expressly or by implication, by their acts or omissions, to the same being discharged or modified; or … (c) that the proposed discharge or modification will not injure the persons entitled to the benefit of the restriction: and an order discharging or modifying a restriction under this subsection may direct the applicant to pay to any person entitled to the benefit of the restriction such sum by way of consideration as the Tribunal may think it just to award under one, but not both, of the following heads, that is to say, either— (i) a sum to make up for any loss or disadvantage suffered by that person in consequence of the discharge or modification; or (ii) a sum to make up for any effect which the restriction had, at the time when it was imposed, in reducing the consideration then received for the land affected by it. (1A) Subsection (1) (aa) above authorises the discharge or modification of a restriction by reference to its impeding some reasonable user of land in any case in which the Upper Tribunal is satisfied that the restriction, in impeding that user, either— (a) does not secure to persons entitled to the benefit of it any practical benefits of substantial value or advantage to them; or (b) is contrary to the public interest; and that money will be an adequate compensation for the loss or disadvantage (if any) which any such person will suffer from the discharge or modification. (1B) In determining whether a case is one falling within subsection (1A) above, and in determining whether (in any such case or otherwise) a restriction ought to be discharged or modified, the Upper Tribunal shall take into account the development plan and any declared or ascertainable pattern for the grant or refusal of planning permissions in the relevant areas, as well as the period at which and context in which the restriction was created or imposed and any other material circumstances.

18. Importantly, section 84 confers a discretion on the Tribunal; if any of the various alternative conditions in sub-section (1) is satisfied, the Tribunal may discharge or modify the covenant but does not have to do so. The application

19. The application was made under grounds (aa), (b) and (c). In his statement of case Mr Farrell sought modification of the Covenants to allow all lawful uses which fall within the current Class E of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 except those which he believed necessary to protect the interests of those whom the Covenants were designed to benefit. The prohibited uses were to be as follows: (i) As a club, betting shop, sex shop, creche or nursery, amusement arcade, leisure centre or otherwise for sport and fitness, factory, research facility, wholesaler or goods or subject to (iii) a restaurant or public house or wine bar, or in any other way that is likely to lead to an excess of noise or other nuisance to the residents of properties in which the Respondent has an interest; (ii) For public exhibitions, showing of films, live plays or music, political meetings or religious services; He also proposed that the prohibition in paragraph (i) should be subject to this exception: (iii) The Property may be used for the sale of hot and cold non-alcoholic beverages and of sandwiches of similar types of food but not for full meals, between 8am and 7pm.

20. In a letter dated 6 September 2024, before the commencement of the application, the second objector offered to agree to the modification of the Covenants to allow occupation by businesses which would fall within Class E(e) of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020. Class E (e) relates to the provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner). Specifically, the modifications offered were: In covenant (ii) to add at the end “or for use by a business which falls within planning class E (e)” In covenant (iii) to add between “professional offices” and “and not for use” “or for use by a business which falls within planning class E (e)” In covenant (iv) to add at the end “except in so far as is reasonably necessary for the provision of medical or health services”

21. Mr Farrell did not accept the proposal.

22. In his skeleton argument prepared for the hearing Mr Farrell explained that the purpose of his application was to ‘modernise outdated restrictions imposed more than forty years ago, so that the Property may be used in line with the planning framework and the established commercial character of Fulham Palace Road, while maintaining appropriate protection for residents of Bishops Mansions’. He requested that the Tribunal modify the Covenants to permit full Class E use of the Property, including the limited daytime sale of non-alcoholic drinks and light food. The parties’ respective positions

23. Mr Farrell seeks to widen the permitted uses of the Property. He has described his intentions in different ways : to enable residents to enjoy ‘a shop or daytime eating place’; for the ground floor to be used as a ‘coffee shop’ or for a ‘high quality coffee/tea shop, interior design studio or similar small-scale retail’. Despite these proposals he also said that the Property may be unsuitable as a coffee shop due to its compact size, configuration, and lack of prominence and that no serious enquiries for a coffee shop had been received’.

24. At the hearing Mr Farrell confirmed that he envisaged the Property being used as a coffee shop or as ‘a modest café’ which he thought would bring ‘vitality, not nuisance, and align with modern residential-commercial coexistence’.

25. In his statement of case Mr Farrell also submitted that it was against the public interest to prevent the use of the Property in a way that would provide an amenity to the public. However, he made no further reference to this argument.

26. Mr Garforth-Bles’s objected that removal of the Covenants would adversely impact his flat and other flats at Bishop’s Mansions by ‘stopping protection of the local area’. Mr Farrell had signed the Covenant himself in 1983 and knew what he was doing, and nothing has changed since then.

27. BML considered Mr Farrell’s proposed variation to be ill-thought out, unreasonable and unworkable. They submitted: (i) As far as ground (a) is concerned the Covenants are not obsolete as there has been no change in the character of the Property or the neighbourhood or other circumstances which are material, and the objective of the original covenant can still be achieved. (ii) Regarding ground (aa) the Covenants secure a practical benefit of substantial value to BML and the leaseholders of Bishop’s Mansions and are not contrary to the public interest; money is unlikely to adequately compensate for the loss the leaseholders would suffer from the modification. (iii) In respect of ground (c) the proposed modification would injure the leaseholders.

28. BML also submit that the modification sought is exceptionally broad and Mr Farrell has not defined which of the services covered by Class E he has in mind nor identified an occupier.

29. BML also say that the modification would have far reaching consequences that Mr Farrell has not appropriately considered including incidental uses of the Property.

30. They also say that the modification of the Covenants proposed by Mr Farrell would be unenforceable. The prohibition of a restaurant or public house, is undermined by the ability to sell hot and cold foods which does not preclude a seating area, thereby creating a restaurant pursuant to Class E(b). The reference to ‘sandwiches and similar types of food but not full meals’, is incoherent, undefined and unworkable.

31. Before I consider the parties’ submissions regarding the grounds of the application it is pertinent at this point to examine the expert evidence submitted by BML, Mr Farrell having eschewed the opportunity to call an expert of his own. Expert evidence

32. BML obtained a report from David P Nesbit BA(Hons) MSc MRICS MFPWS but he was unfortunately not available to appear at the hearing, and neither Mr Farrell nor the Tribunal were able to question him. Mr Nesbit qualified as a chartered surveyor in 2006 and founded his own practice in 2012. He specialises in valuation matters, leasehold reform, building surveys, party wall cases, dilapidations and expert witness work.

33. Mr Nesbit’s instructions were limited to the quantification of the loss that would be suffered by BML and the leaseholders should the covenants be discharged or modified. He provided valuations of the freehold and leasehold interests.

34. His analysis commenced with a series of measurements taken with Promap mapping software. These showed that the distance from the rear corner of the Property to the nearest part of the block containing flats 7-12 is 8.98 metres and to the nearest part of the block containing flats 12a -18 is 22.58 metres. Mr Nesbit did not provide the measurement to the nearest block (1- 6), but it is considerably shorter than 8.98 metres.

35. Mr Nesbit concluded that any practical or varied use of the Property would be unlikely to cause any material nuisance or noise interference to the occupants of flats 12a to 18. Any loss of amenity would be felt only by the two blocks nearest the Property, namely the flats numbered 1 to 12.

36. Mr Nesbit suggested that were the covenant to be modified in the way Mr Farrell had proposed, uses within classes E(a) (Display or retail sale of goods, other than hot food) and E(b) (Sale of food and drink for consumption (mostly) on the premises), would be the most likely uses. The small size of the Property would limit its capacity to cause a noise nuisance, but more intensive use of the garden area could be a source of increased noise which would affect the communal garden of Bishop’s Mansions.

37. Mr Nesbitt considered that uses within class E(a) (retail) that would be unlikely to cause a noise, smell or other nuisance. The Property is poorly configured from a retail perspective and it would not be viable to incorporate the first floor flat into the retail area.

38. Mr Nesbit did not consider that refuse and parking would be significant issues as they would be dealt with as part of planning. Most of the trade would be footfall led.

39. He similarly concluded that there would be no sightline or privacy issues and his overall conclusion on the impact on amenity was that it was centred on nuisance from noise. He did not specify the source, intensity or direction of the noise. Mr Nesbit also provided a number of valuations taking into account diminution caused by the nuisance. I will refer to these later if the need arises.

40. I now turn to the question of whether the Tribunal has jurisdiction to modify the covenants. Ground (a) - obsolescence

41. In his original application Mr Farrell did not identify ground (a) as one of the grounds on which he was seeking to rely. However, it was clear from his pleadings that it was part of his case that the covenant was obsolete. The second objector took the same view.

42. Mr Farrell said that the covenant was entered into some 41 years ago and in the intervening period the categorisation of use for planning purposes has changed significantly with an implicit recognition of the desirability of allowing, for planning purposes at least, greater flexibility in changing uses. He considered that the concept of a coffee shop, selling relatively expensive hot drinks in comfortable surroundings, did not exist 41 years ago and was therefore unlikely to have been a use that was specifically intended to be excluded when the covenant was entered into.

43. BML referred to Adams’ Application [2018] UKUT 411 (LC) in which the Tribunal (Martin Rodger QC, Deputy Chamber President and A J Trott FRICS), said that in identifying whether a covenant should be discharged under ground (a) it is necessary firstly, to identify the purpose and objective of the covenant, and secondly to assess whether the character of the Property or the neighbourhood in which it is situated has changed since the covenant was imposed. Next it is necessary to decide whether the restriction has become obsolete by reason for those changes in a sense that the purpose of the restriction imposed can no longer be achieved, and finally to determine whether some material circumstance other than those defined changes has had that effect. The purpose and objectives of the covenants

44. Mr Alaistair Gillespie, current chair of the Board of Directors at BML suggested in a witness statement that the rationale for the Covenants was to prevent increased noise and other nuisance from affecting Bishiop’s Mansions, to aid in the preservation of the residential character of the locality and assist in the protection and security of Bishop’s Mansions and its residents. The parties to the Transfer thought the Covenants were necessary due to the proximity of the buildings to one another.

45. The objectors say that these reasons are still relevant today.

46. Given the proximity of the Property and Bishop’s Mansions it seems to me that the purpose of the covenants was to ensure that the use to which the Property was to be put was compatible with a neighbouring, large scale residential development. The objectives were likely to have concerned the amelioration of noise and disturbance. Changes in the character of the Property or the neighbourhood since 1983

47. Mr Farrell mainly relied on changes in the planning regime since the Covenants were imposed, but he also asserted that a substantial part of Fulham Palace Road is now made up of ground floor commercial premises with residential upper parts and suggested that the use he sought would be in keeping with the established pattern. His evidence did not state whether there had been any change to the number of non-residential uses nearby since 1983.

48. The objectors say that the Property was built as an integral part of Bishop’s Mansions and was said to be porters lodge of the development, which itself remains of a residential character with period flats. The ground floor was occupied as a professional office by an estate agency between 1983 and 2023 and the first floor used for residential purposes for the last 40 years. They also say that the Property remains in the Bishop’s Park Conservation Area.

49. Given that the Property is in an affluent area of London that was largely developed around the turn of the last century, is part of a Conservation Area and is situated close to a historic park, it would be surprising if the character of the Property or the area had changed much in the last 42 years. If the Property was ever a porter’s lodge that was not its character or use by 1983. No evidence was adduced to lead me to any other conclusion than that the character of the Property and area remain much as they were in 1983. Has some other material circumstance rendered the restriction obsolete?

50. The changes to planning use classes on which Mr Farrell referred have not caused any relevant change to the character of the Property or the neighbourhood. The Covenants are private property rights and in order to succeed in making out a case on ground (a) Mr Farrell would first have to establish that changes in public law regulation of uses through the planning system should be regarded as material to an application to modify private rights. Neither party made any specific submissions on that point but at this stage I will assume that it could be arguable. Has the restriction become obsolete by reason of those assumed changes, in the sense that the object for which the restriction was imposed can no longer be achieved?

51. Neither party engaged with this question although the objectors reiterated that the ground and first floor use remain unchanged. They also said that there has been no material change to the Property, be it structural or otherwise. The Covenants offer flexibility for a variety of uses without modification. For example, ‘professional offices’ encompasses offices used for different purposes and there is scope to use the same as a residential flat/private dwelling house. The Property can therefore attract occupiers for commercial and residential uses alike.

52. I have concluded that the original purpose of the covenant was to ensure that the use to which the Property was put was compatible with neighbouring residential uses. In Re Truman, Hanbury, Buxton & Co. Ltd’s Application [1956] 1 QBD 261 , which is the leading authority on what is meant by ‘obsolete’ in the context of ground (a), Romer LJ concluded that: “I cannot see how, on any view, the covenant can be described as obsolete, because the object of the covenant is still capable of fulfilment, and the covenant still affords a real protection to those who are entitled to enforce it.” Nothing about the Property, the benefitted land or the neighbouring area has changed to the extent that the original purpose of this covenant can no longer be satisfied. Nor do the changes to planning regulation relied on by Mr Farrell make the fulfilment of the purpose of the Covenants any more difficult or their preservation any less important. The covenant therefore retains its utility, and its purpose is still capable of being fulfilled.

53. I therefore conclude that the case under ground (a) has not been made out. Ground (aa) – Impediment and practical benefits

54. The first limb of ground (aa) is concerned with whether the continued existence of the covenant would prevent a reasonable use of the land (for public or private purposes).

55. Mr Farrell considered that the covenants do prevent a reasonable use of the land. There is already a coffee shop forming part of the nearby Palace Garden Centre, which is overlooked by many of the flats in Bishop’s Mansions. In comparison the Property is overlooked by only two of the flats and then only at an oblique angle. Two other coffee shops can also be seen from many of the flats. He added that he had been attempting to sell or let the Property for two years but had been unsuccessful with the Covenants proving a bar to any application.

56. The objectors say that the Covenants do not impede the reasonable use of the Property. They allow Mr Farrell to use the Property as a residential flat/private dwelling or as professional offices but restricts various uses. The covenants, as they stand, offer flexibility for a variety of uses.

57. Whether the Covenants restrict some reasonable use of the Property for public or private purposes is a question which depends on the language of the restriction, and the history of attempts to let it are, at most, of secondary relevance. In this case the answer to the question is obvious. The Property has a certificate of established use for retail purposes. The Property is in an area where retail and other non-residential uses are interspersed with domestic dwellings. It seems to me that the use of the Property for retail purposes would be reasonable. The Covenants in their existing form self-evidently impedes the proposed user.

58. The same can be said for the use of the Property as a coffee shop. It does not require planning permission and there are several such establishments in the immediate vicinity. It is impeded by the Covenants.

59. The next matter for consideration is whether the proposed us meets the limited benefit test in s.84 (1A)(a) of the Act , namely; does impeding the proposed use secure practical benefits to the objectors?

60. The objectors’ position is that Class E uses, and in particular coffee shops, are incompatible with residential environments. Mr Farrell’s response is that numerous coffee shops operate peacefully within mansion blocks, including some with shared entrances and party walls, and he supplied photographic evidence of Class E premises directly adjoining or forming part of mansion blocks.

61. One of the examples related to Tinto Coffee which is located about 60 metres south of Bishop’s Mansions with frontage on to the opposite side of Fulham Palace Road. Mr Farrell said that these premises are integrated into the original built structure of Colehill Mansions (a building broadly similar in scale and age to Bishops Mansions) and are visible from many flats within Bishops Mansions, particularly those between the junction with Woodlawn Road and Colehill Lane. He said that the commercial part of the building gives every indication of being part of the original built structure. He also submitted, without evidence, that no complaints or concern have ever been raised about visibility, noise, or appropriateness. The rest of his photographs showed nearby shops occupying the ground floors of period terraces, often adjacent to other commercial uses or retailers.

62. Mr Farrell said that any use as a coffee shop would be subject to planning control and environmental health regulations. That would encompass restrictions on hours of operation, extraction systems for cooking fumes, and noise mitigation. Any proposed food or beverage operation would need Local Authority approval and could not proceed unchecked.

63. Mr Farrell submitted that the objections fail to acknowledge that: (i) The Property fronts one of London’s busiest main roads (Fulham Palace Road) with heavy vehicular traffic. On match days there is substantial footfall from crowds attending Craven Cottage (Fulham Football Club) on the same side of the road and only a short distance away. (ii) The garden is south-east facing, shielded by fencing and a substantial mature tree. It is not visible from most flats and largely unusable in colder months. For the very few flats that do overlook the Property, the outlook over this commercial space has not, and will not, change. (iii) The first-floor flat windows at the Property were replaced with high-performance acoustic steel units, with full planning consent. (iv) No commercial tenant of the Property has ever had independent access to the garden from the side gate. The only access is through the French doors at the rear of the Property and is strictly controlled. (v) To the best of his knowledge, the rear facing rooms in Bishops Mansions flats are mostly kitchens, bathrooms or second bedrooms. The principal reception rooms face the front overlooking Bishops Park Road and Fulham Palace Road. From a review of marketing plans on Rightmove he had been able to discern that the bedrooms are, typically, centrally located and not at the rear. (vi) The suggestion that limited, lawful commercial use of the secluded rear garden during business hours would disrupt residential amenity is without factual basis. (vii) Despite the presence of at least three nearby coffee shops — two of which operate considerably longer hours — flats within Bishops Mansions have continued to sell at strong and in some cases record-breaking prices. This market reality directly undermines any suggestion that the presence of a modest commercial user, such as a coffee shop, would reduce desirability or amenity. In his view the commercial and residential elements of this area have long co-existed without adverse impact.

64. Mr Farrell said that suggestions that the Property would inevitably become a disruptive café were speculative and unsupported by evidence. Fears of overlooking, noise and nuisance were contradicted by his photographic evidence and decades of peaceful use by his previous tenants about whom no complaints had ever been recorded.

65. The second objector identified a series of practical benefits: (i) The Covenants enable BML to control the use of the Property so that it will be a residence or professional offices, and no noxious, noisy, offensive, illegal, immoral, dangerous, combustible, inflammable, radioactive or explosive activities are carried on, and specifically excluding the uses set out in clause (iv). (ii) They ensure that local neighbouring properties are not being overlooked by the public. (iii) They protect Bishop’s Mansions and the neighbourhood from noise fumes and dirt. (iv) They ensure protection from increased activities and vehicle movements. (v) They protect the street scene and ensure that it is in keeping with the conservation area. (vi) They ensure the security of neighbouring properties in that it enables the side entrance to be used by a select few.

66. These benefits can be grouped together under the following headings: increases in footfall/traffic, the likelihood of noise/fumes and loss of security/privacy. Under the first heading the objectors say that should the Property be used for other than the current purposes there would be an increase in customers, employees and contractors. The use would be transformed from desk-based activities to one where the public at large could visit. They also say that businesses in Class E are reliant on frequent and regular sales for their survival and there would be activity from early in the morning to late at night. The residents are concerned that on days when Premier League football matches are held at nearby Craven Cottage, there will be significant gatherings of noisy fans outside the Property.

67. The objectors say that there are parking restrictions in Fulham Palace Road immediately in front of the Property and that the modification sought would generate increased vehicular usage with the potential for customer parking and numerous daily deliveries, possibly outside normal opening hours. Several residents mentioned difficulties associated with parking in their evidence. Ms Anne Lovett (Flat 1) said that residents could apply for a permit to park in Bishops Park Road and visitors could use metered parking in the same bays. She was concerned that retail use of the Property could exacerbate the current situation to the detriment of Bishop’s Mansions residents.

68. Mr Ryan Timoney (Flat 5), himself a director of BML, said that parking bays around Bishop’s Mansions were heavily used and a new café at the Property would make matters worse, especially during evenings and weekends.

69. In my judgement, a modest increase in footfall on Fulham Palace Road will have very little effect on those living at the eastern end of Bishop’s Park Road.

70. Fulham Palace Road is a busy thoroughfare and provides the most direct route from Hammersmith to Putney Bridge. In my view it is doubtful whether the opening of a café or coffee shop at the Property would cause a noticeable increase in vehicular traffic. A significant proportion of the clientele would arrive on foot although there might be some pressure on parking. A coffee shop or café conducted from the Property would not add significantly to the impact already caused by football supporters passing on match days. I do not regard the ability to prevent limited increases in footfall and traffic as a practical benefit, much less one of substantial value or advantage.

71. Turning to noise and fumes, Mr Farrell submitted that statutory controls are well-established and effective, ensuring that any proposed food or beverage operation would require separate Local Authority approval and could not proceed unchecked. He also submitted that the garden at the Property is not visible from most of the flats and has never been a source of complaint and is unlikely to become one. Claims of future disruption were speculative and lack credibility.

72. In my view Mr Farrell is unduly optimistic about the degree to which local authority control would mitigate the environmental impact of a food and beverage operation at the Property. Given the internal dimensions of the Property and taking into account the application covers the whole building, it is likely that there would be some utilisation of the rear garden for seating purposes, which raises the prospect of noise from customers. The garden would be an attractive proposition for users of the Property, it is shady and removed from the hubbub and traffic of Fulham Palace Road. It is not difficult to envisage that it would be a popular place for meeting friends or family. It would accommodate, by my reckoning, in excess of thirty customers.

73. The distance between the southern boundary of the rear garden of the Property and the nearest rooms in Bishop’s Mansions is less than 4 metres. Many of the rooms at the rear of Bishop’s Mansions are kitchens, but those rooms also function as dining and living spaces. In warm weather occupiers are most likely to open the windows of those rooms as they have less noise from traffic in Fulham Palace Road. That makes them most susceptible to noise and fumes from a café operation at the Property.

74. It is also clear that the gardens and outside space at Bishops Mansions are a popular and valued amenity for residents. In my judgement the juxtaposition of a commercial operation and the communal gardens and outdoor space is likely to cause a noticeable loss of amenity.

75. I place no weight at all on Mr Nesbit’s assessment of the diminution of value resulting from noise nuisance. In his report he relied on a single instance of similar circumstances elsewhere in London, with no explanation of the factors that informed his judgment that the situation at Bishop’s Mansions warranted a much smaller allowance. That approach was not convincing. Mr Farrell’s assertion, made without evidence, that other coffee shops in Mansion blocks operated without complaint, was speculative. His example of Tinto on the opposite side of Fulham Palace Road was not truly comparable. The outdoor seating area was at the front, adjacent to the road and is much smaller than the rear garden of the Property. Tinto is part of a parade of six shops. The outside seating at the Glasshouse coffee shop in the Palace Gardener garden centre is concealed behind a 1.75 metre tall wall and is again smaller than the rear garden at the Property. At its nearest point it is about 16 metres from Bishop’s Mansions. Undoubtedly customers at both locations make noise but they are seated next to a busy road with all the disturbance that that entails.

76. I conclude that the Covenants, in preserving amenity from noise and fumes do provide a practical benefit of substantial value or advantage.

77. I now turn to security and privacy. The Property has a right of way over the pathway on the southern side of the building. To access the garden of the Property from the right of way it is necessary to enter the communal garden of Bishop’s Mansions. Mr Farrell envisaged that anyone using the rear garden of the Property would access it only from the internal parts and would not have access by means of the side path.

78. Mr Farrell regarded himself as someone with a willingness to assist others and be a good neighbour. He considered that an incoming Class E user would continue that spirit of responsibility. He submitted that having an active daytime occupier would provide “eyes and ears” for the occupiers at the rear of the Property improving security for everyone, including the adjoining flats. He professed that security was as important to him as it was to the respondent and other lessees, and occupied, well-managed premises served that shared interest.

79. The objectors’ position, simply put, is that the use of the rear garden of the Property will create privacy issues for the 18 occupiers who live closest to it. Ms Lovett, who lives in Flat 1, on the ground floor closest to Fulham Palace Road considered that customers using the Property would be able to look out of the side window and see directly into her bedroom window some 10 metres away. Other residents, especially those near the rear garden of the Property, expressed similar apprehensions. As far as security is concerned, the objectors say that in comparison with a residential dwelling or professional offices, the identities of visitors to a coffee shop will not generally be known. They are also concerned that if customers gained access to the main grounds of Bishop’s Mansions there would be nothing preventing them reaching residents’courtyards and sheds which house expensive bicycles and gardening equipment.

80. I find the objector’s fears about privacy understandable. A coffee shop operation has the potential to introduce hundreds of customers a day into an environment where they are in close proximity to the windows of Bishop’s Mansions flat dwellers. Currently the permitted office use of the Property is unlikely to involve much use of the garden. Use of the Property as a café or coffee shop would result in a drastic change. I find residents’ concerns about security equally plausible. At the moment the gate adjacent to the Property is available to a limited number of keyholders. In my judgement anyone operating a café would want to have access from the side and would not expect customers using the garden to exit through the shop. The current arrangement would involve customers leaving through part of the communal garden of Bishop’s Mansions. There is scope to move the gate and preserve the right of way whilst still securing Bishop’s Mansions area. However, coffee shop use would introduce customers into an area where they cannot currently go and the prospect, if not the reality, of reduced security is easy to comprehend.

81. In my judgement the ability to preserve both privacy and security for the residents of Bishop’s Mansions is a practical benefit of substantial value or advantage. Determination

82. It is uncommon for the Tribunal to be asked to decide an application where the proposed modification provides for such a wide ranging and nebulous outcome. This left me in the position of having to come to a decision based on a worst case (but realistic) scenario. Paradoxically, Mr Farrell doubted that a coffee shop or café operator would be interested in the Property, but his case was largely argued with that outcome in mind.

83. I have no doubt both parties were sincere in their desire to reach a compromise. The objectors went as far as to offer a modification of the covenant to accommodate other professional uses outside the scope of the existing wording. However, this was not adopted as an alternative position by Mr Farrell and he therefore left himself nothing to fall back on if the Tribunal’s decision did not go his way.

84. It can be discerned from my analysis of the practical benefits that the covenant provides two significant practical benefits to the residents of Bishop’s Mansions. Firstly, it inhibits activities which would generate noise and fumes. Secondly, it prevents uses which would result in a loss of privacy and security. In my judgement both are individually of substantial value or advantage, more so when taken together. It follows that neither grounds (aa) or (c) are made out and I do not therefore have the jurisdiction to grant the application.

85. The application is refused for those reasons. Mark Higgin FRICS FIRRV 29 December 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.