Evidence
11.Mrs Sutton said that she bought 39 Muswell Road in April 2010. She extended it upwards and refurbished it to provide long term placements for people with learning disabilities. She had planned to use the application land as a garden, seating area and allotment, but her builder left before completing the build. The sale of the application land seemed to be good way of raising the funds to complete the refurbishment of her house.12.Today, the outbuilding has been demolished and the application land, which has been fenced off from Mrs Sutton’s garden, is simply an overgrown site.13.In November 2014, Mrs Sutton’s architect obtained outline planning permission from Derby City Council (DER/08/14/011081/PRI) for the erection of a single house on the application land. The development was to be in accordance with a plan which showed the house being located further back into the site than number 39. Indicative plans suggested a two storey, three bedroomed property. It is shown on the plan below, upon which the application land is edged, Mrs Sutton’s house is to the east, and the objectors’ property, 5 Putney Close, adjoins the rear part of the application land to the west.14.The outline consent was conditional upon an application for reserved matters being submitted within three years, and development being commenced within two years of the approval of the last reserved matter. This was not done, and the consent therefore lapsed.15.Mrs Sutton has now proposed an alternative development, located further to the front of the site, the front elevation of which would be in line with that of Number 39.16.Mrs Sutton relied upon evidence from Mr Geoff Ruddle, a local estate agent. In Mr Ruddle’s view, outlined in his brief written report and his oral evidence, the value of 5 Putney Close, which he put at £315,000, ‘would not in any way be impacted by the erection of a single dwelling’ on the application land, subject to the new dwelling not being [taller] than 39 Muswell Road, and not having more windows overlooking 5 Putney Close than those of 39 (currently two first-floor opaque glazed).17.Mr and Mrs Baines detailed a list of ways in which they felt the proposed discharge of the restriction would adversely affect their property, which largely focussed on the effect that the development would have on their privacy in both their garden and to the rear of their house, and the effect of feeling ‘hemmed in’. Their evidence was plainly heartfelt and I accept that they have real concerns about the application.18.They relied on the expert of evidence of Mr Malcolm Kempton FRICS. Mr Kempton is not local to the area (he recently gave evidence to the Tribunal as an expert on office values in the Thames Valley), but relying on his discussions with local agents, he valued the objectors’ property at £290,000. Later, in the valuers’ statement of agreed facts, he agreed Mr Ruddle’s valuation at £315,000.19.As for the effect on the objectors’ property of the restriction being discharged, in Mr Kempton’s view it was not possible to assess the diminution in value because the actual development which may or may not take place was unknown. Based on the information before him, the diminution in value could easily be as much as 20%-25% of the overall value, but could be more depending on the type of development finally constructed.20.Mr Ruddle maintained his opinion during his oral evidence, but candidly accepted that he had not dealt with or given evidence in a covenant case in the past, nor was he familiar with section 84 of the Act. To his credit, he accepted that Mr Kempton’s view, outlined in the preceding paragraph, had force.