Case No. UKUT-0172-(LC)-UTLC-Case-Number:-LC-2020-33

1.This is an application for the Tribunal to discharge or modify restrictive covenants (“the restrictions”) that burden the title to 52 Beechcroft Manor, Weybridge (“the Property”), preventing any alteration to the external plan or elevation of the building and preventing its use for business purposes. The Property is a three storey town house at the end of a terrace of three similar but not identical houses within a spacious private development. The restrictions are contained in a transfer dated 6 January 1989 (“the 1989 transfer”) between Seward Homes Limited and Wolverlight Developments Limited (Vendor) and Jacquiline Anne Hall (Purchaser). They are stated to be “for the benefit and protection of all other premises now or formerly vested in the Vendor and comprised in the Development…”.2.Mr and Mrs Naidu (“the applicants”) made their application on 16 November 2020, ahead of any application for planning consent or pre-application advice and with no supporting details of their proposal for a side extension. The objectors made their objections on the principle of the proposals. Mr and Mrs Sweeney live at No. 53, adjoining the property. Mr and Mrs Andreassen live at No. 54, on the other side of No. 53. Mrs Morton lives at No.51 which is the end house of a terrace of six, sitting above and at an angle to the Property. 3.On 1 November 2021 the applicants made a pre-application enquiry to Elmbridge Borough Council (“the Council”) accompanied by plans showing elevations and floor plans for the proposed three storey side extension. This is not a public process and the objectors were not made aware of the enquiry. The supportive response to the pre-application enquiry, together with the plans, was sent to the objectors on 15 February 2022. Simon Metcalfe MRTPI, a planning consultant with Alder King in Bristol, prepared a planning statement for the applicants dated 18 February 2022 in which he addressed the likely impact on the objectors of the proposed extension and change of use. This was sent to the objectors on 24 February 2022.4.I held a case management hearing by remote video platform on 26 May 2022, with the intention of explaining to the objectors how to participate in the hearing as unrepresented parties. The objectors declined to take part in the case management hearing as they did not intend to participate in the hearing of the application.5.I made a site inspection on 31 May 2022 accompanied by Mrs Naidu, her solicitor Ms Lorraine Francis, and the objectors. I inspected the garden of the Property, where the proposed extension would be constructed, and the garden of No. 51. I became aware at the inspection of the strong feelings held by the objectors as a result of what they perceived to be a lack of communication by the applicants to explain their proposals in person, a reliance on formal communications from their solicitors and the Tribunal, and a general lack of detail until a very late stage in the process. I have some sympathy with their view, but do not believe there was an intention on the part of the applicants to be vexatious. I am conscious that for much of the period between the application to the Tribunal and the progression of the planning application, Covid 19 restrictions and cautions were in place.6.I heard the application by remote video platform on 1 June 2022. The objectors did not attend the hearing, relying on their objections as evidence. Mr Naidu had submitted written evidence with the application but was working overseas and therefore unable to give oral evidence. Ms Francis relied on the report of Mr Metcalfe in support of the application.7.On the morning of the hearing, the objectors and I received copies of the applicants’ planning application, dated 25 April 2022, for permission to build a three storey extension to the side of the property and provide an additional parking space in front of the Property. This included detailed floor plans and elevations, based on those submitted with the pre-application enquiry.